Legislature(2023 - 2024)ADAMS 519
05/05/2023 09:30 AM House FINANCE
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| Audio | Topic |
|---|---|
| Start | |
| HB66 | |
| HB28 | |
| HB3 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 28 | TELECONFERENCED | |
| += | HB 66 | TELECONFERENCED | |
| += | HB 3 | TELECONFERENCED | |
HOUSE BILL NO. 66
"An Act relating to homicide resulting from conduct
involving controlled substances; relating to the
computation of good time; and providing for an
effective date."
9:39:51 AM
Co-Chair Foster relayed that the committee would consider
amendments to the bill. He reviewed individuals available
for questions.
9:40:25 AM
AT EASE
9:41:18 AM
RECONVENED
Co-Chair Foster reiterated that the committee would hear
amendments to the bill. There was a total of nine
amendments.
Representative Stapp MOVED to ADOPT Amendment 1, 33-
GH1482\B.10 (Radford, 5/2/23) (copy on file):
Page 2, line 22, following "a":
Insert "schedule IA, IIA, IHA, or IVA"
Page 2, lines 23 - 24:
Delete "AS 11.71.010 - 11.71.030 or 11.71.040(a)(l)
for schedule IVA controlled substances"
Insert "AS 11.71.010-11.71.040"
Representative Josephson OBJECTED.
Representative Stapp explained that the amendment looked to
clarify some of the language in the bill. He believed
Amendment 3 may suit the purposes of his intent better. He
clarified that his intent was to clarify language in the
bill regarding punishment related to controlled substances.
He stated his understanding that Amendment 1 may
unintentionally delete some precursors to methamphetamine
developments. He requested to hear from the Department of
Law (DOL) on the intent.
ANGIE KEMP, DIRECTOR, CRIMINAL DIVISION, DEPARTMENT OF LAW,
responded that Amendment 1 changed the statutes listed out
that encompassed meth precursors. She explained that by
listing the specific scheduled substances, those particular
precursors may not be scheduled. She elaborated that what
had previously been captured by the use of the language
would not be covered. For example, a person manufacturing
methamphetamine and in possession of those precursors would
not be encompassed by the redrafting [under Amendment 1].
Representative Stapp asked Ms. Kemp to explain what a meth
precursor is.
Ms. Kemp replied that a meth precursor included items used
to develop and manufacture methamphetamines. She detailed
that meth was manufactured using household chemicals such
as battery acid. Many of the items were not scheduled
substances.
Representative Stapp WITHDREW Amendment 1 after the
explanation from DOL.
9:44:38 AM
Representative Coulombe MOVED to ADOPT Amendment 2, 33-
GH1482\B.14 (Radford, 5/3/23) (copy on file):
Page 2, lines 23 - 24:
Delete "or 11.71.040(a)(l) for schedule IVA controlled
substances"
Insert "that is not a schedule IVA, VA, or VIA
controlled substance"
Page 2, following line 27:
Insert a new bill section to read:
"* Sec. 2. AS ll.41.120(a) is amended to read:
(a) A person commits the crime of manslaughter if the
person
(1) intentionally, knowingly, or recklessly causes the
death of another person under circumstances not
amounting to murder in the first or second degree;
(2) intentionally aids another person to commit
suicide; or
(3) knowingly manufactures or delivers a schedule IVA
controlled substance in violation of AS
11.71.010(a)(4), ll.71.030(a)(2), or 11.71.040(a)(l)
[AS 11.71.010 - 11.71.030 OR ll.71.040(a)(l) FOR
SCHEDULE IVA CONTROLLED SUBSTANCES], and a
person dies as a direct result of ingestion of the
controlled substance; the death is a result that does
not require a culpable mental state; in this
paragraph, "ingestion" means voluntarily or
involuntarily taking a substance into the body in any
manner."
Renumber the following bill sections accordingly.
Page 5, line 11:
Delete all material.
Renumber the following bill sections accordingly.
Page 5, line 14, following "Act,":
Insert "AS l l.41.120(a), as amended by sec. 2 of this
Act,"
Page 5, line 15:
Delete "sec. 2"
Insert "sec. 3"
Delete "sec. 3"
Insert "sec. 4"
Page 5, line 16:
Delete "sec. 4"
Insert "sec. 5"
Page 5, line 17:
Delete "sec. 5"
Insert "sec. 6"
Representative Cronk OBJECTED for discussion.
Representative Coulombe explained that the amendment would
remove schedule IVA, VA, and VIA controlled substances from
the murder in the second degree statute as written in HB
66. The amendment allowed a manslaughter charge for
administering, delivering, or giving another person a
schedule IVA controlled substance if it resulted in death.
She felt that lower level drugs such as Xanax, Valium,
Ambien, and Adderall did not belong in the murder in the
second degree statutes. She shared that she had been
working with other members and was struggling to find the
right balance of where all of the drugs best fit. She was
uncertain the amendment would accomplish her goal. She
stated that certainly causing a death should be a
chargeable offense; however, she was uncertain murder in
the second degree was appropriate for someone giving their
friend or relative Xanax and not knowing some underlying
condition that contributed to their death. She believed the
amendment needed more work. She WITHDREW the amendment.
9:46:39 AM
Representative Ortiz MOVED to ADOPT Amendment 3, 33-
GH1482\B.11 (Radford, 5/3/23) (copy on file):
Page 2, line 13:
Delete "or"
Insert "[OR]"
Page 2, lines 22 - 27:
Delete all material and insert:
"{6) another person dies as a direct result of
ingesting a controlled substance that is knowingly
manufactured or delivered by the person in violation
of {A) AS 11.71.010 -11.71.030; or II substances.
(B) AS ll.71.040{a)(l) for schedule IVA controlled
substances
* Sec. 2. AS 11.41.110 is amended by adding new
subsections to read:
(c) A death under (a)(6) of this section is a result
that does not require a culpable mental state.
(d) In (a)(6) of this section, "ingesting" means
voluntarily or involuntarily taking a substance into
the body in any manner."
Renumber the following bill sections accordingly.
Page 5, line 14, following "Act,":
Insert "AS 11.41.110(c) and (d), added by sec. 2 of
this Act,"
Page 5, line 15:
Delete "sec. 2"
Insert "sec. 3"
Delete "sec. 3"
Insert "sec. 4"
Page 5, line 16:
Delete "sec. 4"
Insert "sec. 5"
Page 5, line 17:
Delete "sec. 5"
Insert "sec. 6"
Representative Cronk OBJECTED for discussion.
Representative Ortiz explained the intent of the amendment
was to clarify language. He recalled that in the original
presentation of the bill there had been some confusion on
page 2 beginning on line 13 through the next page. He
stated there had been uncertainty on lines 21 through 28.
The amendment did not change the overall intent of the law
but attempted to clarify the section to make it more
understandable. He asked to hear from the department.
Ms. Kemp agreed that the amendment was clarifying and
accomplished what was previously proposed but organized it
differently in a way that may be easier for practitioners
to apply.
Representative Stapp supported Amendment 3. He believed the
amendment articulated what he had attempted to do in
Amendment 1.
Representative Cronk WITHDREW the OBJECTION.
There being NO further OBJECTION, Amendment 3 was ADOPTED.
9:49:08 AM
Representative Josephson MOVED to ADOPT Amendment 4, 33-
GH1482\B.6 (Radford, 4/21/23) (copy on file) [Note: due to
the length of the amendment it has not been included here.
See copy on file for detail].
Representative Cronk OBJECTED for discussion.
Representative Josephson explained the amendment. He stated
there were some relics in Title 11.71 relating to marijuana
use and possession. He shared that in 2014 he had voted
against the initiative legalizing marijuana, and no one had
asked him to offer the amendment. He believed the amendment
was germane because there were sections of the bill that
tangentially addressed all of the schedules. He stated that
there were relics on the books specifying that if a 21-
year-old were to offer a drag of marijuana to an 18-year-
old it would be a class B felony. He provided another
example about two brothers who were three years apart. He
explained that if the older brother offered the younger
brother a drag of marijuana it was a class B felony. He
stated it subjected the older brother to up to 10 years in
jail. He expounded that the individual would be subject to
the full 10 years if they had numerous felonies. He stated,
"I just think that we're so far beyond this at this point."
He noted that if an adult gave a minor alcohol, the first
instance was a class A misdemeanor and the second instance
was a class C felony. The amendment would only soften the
penalty to a class C felony. He underscored that the facts
he had just described would still be a felony. He
considered that someone may think the legislature needed to
do better than that. He stated that the problem was the
next step would be a class A misdemeanor, which was a mixed
V or VI and into the next level of crime that created a
graduated scale problem. Currently, if someone gave
marijuana to a 19 or 20-year-old it would be a class A
misdemeanor. He did not want the amendment to revise the
schedule V class A misdemeanors. He clarified that the
amendment did not change the penalty for giving marijuana
to a 17-year-old. He asked why it was a class B felony and
not a class C felony for 18-year-olds. He believed the
reduction in penalty was still too harsh.
9:52:40 AM
Representative Stapp asked for comment on the amendment by
the department.
Ms. Kemp answered that the effect of the amendment was as
Representative Josephson had explained. The amendment would
reduce the penalties associated with the distribution of
marijuana to someone who was 18 years old or older. The
amendment reduced the crime from a class B felony to a
class C felony and changed the presumptive jail time range
to zero to two years versus one to three years for a class
B conviction.
Representative Stapp asked for the legal age for marijuana
in Alaska.
Ms. Kemp replied that the statutes had to be read in
conjunction with AS 17.38, which set the legal age at 21 or
older.
Representative Cronk WITHDREW the OBJECTION.
There being NO further OBJECTION, Amendment 4 was ADOPTED.
9:54:47 AM
Representative Tomaszewski MOVED to ADOPT Amendment 5,
33/GH1482\B.13 (Radford, 5/3/23) (copy on file):
Page 3, line 28:
Delete "20"
Insert "21 (20]"
Page 4, line 21:
Delete "10 to 14"
Insert "12 to 16 [10 TO 14]"
Page 4, line 23:
Delete "15 to 20"
Insert "17 to 21 [15 TO 20]"
Representative Josephson OBJECTED.
Representative Tomaszewski explained the amendment. He
discussed that the bill would change the first offense for
manufacturing and delivering of a schedule IA substance
from 7 to 11 years. He highlighted that a second offense
had jail time of 10 to 14 years. He explained that
technically a person could serve a longer jail term for a
first offense than on a second offense. The amendment
increased the second and third offenses by two years. He
pointed to page 4, line 21 of the bill where the amendment
would increase the jail time [for a second offense] from 10
to 14 years to 12 to 16 years. A third offense would
increase from 15 to 20 years to 17 to 21 years.
9:56:24 AM
Co-Chair Foster asked the department about the original
impetus for the overlap discussed in the prior hearing. He
asked for the reasoning.
KACI SCHROEDER, ASSISTANT ATTORNEY GENERAL, CRIMINAL
DIVISION, DEPARTMENT OF LAW, answered that the relevant
language was located in Section 4. She believed the
previous discussion had revolved around the enhanced
penalty of 7 to 11 years when someone was manufacturing or
delivering a schedule IA controlled substance. She
elaborated the provision had been added by the House
Judiciary Committee in an effort to recognize the
seriousness of the [opioid] epidemic and the seriousness of
delivering a schedule IA controlled substance. The
provision was a recognition of the seriousness of the drugs
and the damaging effects they could have. She clarified
that the 7 to 11 years for a first time offense was only
for manufacturing and delivering a schedule IA drug. The
presumptive range for general class A felonies was lower
without the enhancement.
Representative Josephson recommended briefly holding the
amendment until after Amendment 6. He explained that if
Amendment 6 passed, it may change members' feelings about
Amendment 5. He noted that Amendment 6 dealt with the same
section.
Co-Chair Foster listed ways to deal with the suggestion.
Representative Tomaszewski was amenable to waiting on his
amendment.
Co-Chair Foster rolled Amendment 5 until after Amendment 6.
9:59:29 AM
Representative Josephson MOVED to ADOPT Amendment 6, 33-
GH1482\B.3 (Radford, 4/11/23) (copy on file):
Page 4, line 19, following "delivery":
Insert "under AS 11.71.021(a)(l)"
Page 4, line 20, following "substance":
Insert "set out in AS 11.71.140(c)(29)"
Representative Cronk OBJECTED.
Representative Josephson explained the amendment. He did
not recall whether the provision at hand was added by the
department or the House Judiciary Committee. He addressed
his concern that the provision created the problem
Representative Tomaszewski had illustrated. Additionally,
it swept up all of the schedule IA drugs inside it and
included Oxycodone which could be a derivative of all
sorts of things, but also something prescribed by a doctor.
He understood the department did not want the legislature
to split out schedules because it made things slightly more
complicated. He remarked that earlier in the day the co-
chair referred to the bill as the "Fentanyl bill." He was
highlighting the Fentanyl problem by citing [AS
11.71.140](c)(29) and leaving the other law related to
schedule I alone, while escalating or aggravating [the
crime of] delivery or manufacturing of Fentanyl.
Co-Chair Foster asked for verification the intent was to go
after Fentanyl and to separate things like Oxycodone in
terms of how Representative Tomaszewski's amendment
[Amendment 5] would apply.
Representative Josephson agreed. He noted that
Representative Tomaszewski's amendment still could have
application to Fentanyl.
Co-Chair Foster was glad the subject had been brought up.
For example, he knew many snow machine racers who had
broken many bones over the years. He believed Oxycodone was
prescribed. He heard a number of the individuals say they
take their old Oxycodone out on rides and in races to have
in the event of crashes. He saw the difference between
Oxycodone and Fentanyl and was supportive of the amendment.
He asked to hear from the department.
10:03:06 AM
Ms. Kemp replied that the department had concerns about
breaking out various substances within the same schedule.
She understood where Representative Josephson was coming
from related to Oxycodone, which was a manufactured
substance. She elaborated that there were many other
examples within the same schedule including Carfentanil,
which according to the Department of Justice was 100 times
more potent than Fentanyl. She explained that Carfentanil
is an elephant tranquilizer that is also abused and fell
within the same IA schedule. Similarly, heroin was also
within the same schedule and had other very serious
concerns and was among the drugs contributing to overdoses.
The concern was that without further research or
consideration about how the various substances were
scheduled through the work of the Controlled Substance
Advisory Committee, the department would have concerns
about trying to break substances out.
Ms. Kemp stated that there were practical concerns related
to trying to separate various substances and there was the
application. She referenced the example used by Co-Chair
Foster. She understood that the notion of prosecutorial
discretion was not very popular when talking about some of
"these" very important issues, but the example provided by
Co-Chair Foster would not likely be pursued by the
department as a criminal charge. She expected that someone
in need of pain medication due to an accident on the slope
would not be something pursued by the department as a class
A felony. The amendment also brought up the issue of
proving a particular substance was in fact Fentanyl. She
elaborated that there were currently some of the challenges
already, but if the substance was mixed with two schedule
IA controlled substances, the department would have to
prove the individual knew it was Fentanyl they were
delivering to another individual. The department respected
what Representative Josephson was trying to accomplish, but
given what was occurring, it would create issues. She
suggested the work may be better suited for the Controlled
Substance Advisory Committee. She elaborated that the
committee worked with medical providers and considered risk
to safety, community, and the likelihood of overdose when
considering how to schedule a drug.
10:06:25 AM
Co-Chair Foster remarked that Ms. Kemp made good points. He
understood it was more than Fentanyl and Oxycodone and that
heroin was definitely not considered to be something like
Oxycodone. He thought the prosecutorial discretion was a
good point. He was a bit concerned, but he may side with
the department on the amendment. He was willing to hear
more discussion. He referenced Ms. Kemp's statement that
the Controlled Substance Advisory Committee could determine
which of the drugs should be perhaps removed from the
specific category. He asked if it was better to perhaps
pull in one innocent person. He found the big issue to be
the prosecutorial discretion component.
Representative Stapp discussed that several years ago the
police in Fairbanks were having a hard time getting
individuals for "bath salts" due to the definitions in
state statute. Individuals were able to alter the substance
outside of drug definitions in state law. He asked if the
amendment would make it easier or more difficult for DOL to
go after Fentanyl. He thought individuals could perhaps
change some of the ingredients and a product could then
fall outside of the Fentanyl statute. He asked for comment
from the department.
Ms. Kemp answered it would be a challenge if there were
mixed substances. She stated it would be specific to
schedule IA controlled substances where there was a mixture
of the substances. She explained it would create one other
step the department would have to prove that an individual
knew they possessed Fentanyl when the product was
delivered.
Representative Stapp stated his understanding it would be
more difficult for the department to achieve its objective
if the amendment were adopted. He believed there would be a
greater burden of proof in the event Fentanyl was mixed
with other substances. He asked if his understanding was
accurate.
Ms. Kemp agreed. She replied that it would create some
challenges for the department and increase litigation.
10:10:09 AM
Co-Chair Edgmon remarked that the discussions were
complicated. He stated that the legislature seemed to pass
tougher on crime bills annually and in many instances, it
did not have the ability to go back to revisit some of the
"one size fits all" criminal code changes enacted. He was
listening to the conversation with an ear to both sides of
the argument. He used an example of young Alaska Native
males in villages, who predominately accounted for 20 to 25
percent of incarcerated individuals. He was leery of
putting something into statute that could unwittingly bring
someone into a long-term prison sentence. He stated that
the legislature could pivot in the coming year or two and
pass a targeted piece of legislation. He remarked that if
the problem was Fentanyl, in certain circumstances he was
amenable to toughening up unclassified felonies, but he was
sensitive towards reaching too much. He elaborated there
would be more bills in the future dealing with Fentanyl and
other things. He did not want a young Native male to get
caught up in a situation where he was in jail for many
years because he did something stupid.
10:11:59 AM
Representative Ortiz offered conceptual Amendment 1 to
Amendment 6 in an effort to address concerns raised by the
department and Co-Chair Edgmon. He pointed to line 5 where
the conceptual amendment would add "(69)" to AS
11.71.140(c)(29) in order to cover the concerns raised
about the exclusion of Carfentanil. He explained that the
amendment would still protect concerns on the other side
about avoiding something that was too broad that could
catch people in the web before any changes could be made.
Co-Chair Foster stated that Representative Josephson's
amendment was to specifically address Fentanyl. He asked
for verification that the conceptual amendment would
include Fentanyl and Carfentanil.
Representative Ortiz MOVED to ADOPT conceptual Amendment 1
to Amendment 6.
Representative Cronk OBJECTED. He did not have sympathy for
people who deal drugs due to issues he had seen. He relayed
that he had heard from all of the villages he represented
that they wanted something done. He elaborated that
villages were being ruined by drug dealers distributing
heroin, meth, and Fentanyl. He underscored that villages
were crying out and wanted something done.
Representative Galvin supported the conceptual amendment.
She asked to hear from the legal authority in the room on
whether it would encompass the current problem. She
remarked that the laws the legislature made had
consequences and she agreed with Co-Chair Edgmon and Co-
Chair Foster that she did not want unintended consequences.
She believed rural and urban Alaskans were very frustrated
with what was happening to the state's youth. She
highlighted that the only piece referring to best practices
of reducing deaths had been included by the bill sponsor
from the Department of Health. She called attention to the
idea that it may be one piece, but the committee had heard
from experts in the area that deterrents may not be the
answer (there was no evidence of it). She continued that it
was not true for "what we see in here." She elaborated that
there were many different ways to be doing something as a
state. She wanted to ensure the legislature was aware of
that. She hoped to see more coming the legislature's way
that would by evidence, detract and lessen deaths. She felt
the current bill was important because of unintended
consequences that may happen.
10:17:18 AM
Representative Stapp opposed the conceptual amendment. He
appreciated the maker's intent, but he thought they were
getting in weeds trying to set up hard guiderails on
definitions in statute. He knew there were other amendments
relating to good time that may be able to alleviate the
overarching argument and what Co-Chair Edgmon had
referenced earlier. His concern was that he did not want to
create a situation that overburdened the department on
details and veered from the intent of the underlying bill,
which was to try to address the epidemic in the state.
Co-Chair Foster stated they could err on the side of being
all encompassing of the drugs in the schedule I category
including Fentanyl, Carfentanil, Oxycodone, heroin, GHB,
and so forth and fix it later by pulling certain categories
out. Alternatively, the committee could err on the side of
carving out a couple of the drugs out including Fentanyl
and Carfentanil and add different drugs back later.
Representative Josephson clarified that the remaining
schedule I would be criminal and would be Class A felonies
for children and Class B for adults. He explained that the
existing law would remain. He clarified that the amendment
would not legalize schedule I drugs. He explained that it
would not bump up schedule I to the special circumstances
the department had asked for. He noted the department did
not ask for the provision which had been added by the House
Judiciary Committee. He stated that when the administration
crafted the bill, the concept had not been included.
Co-Chair Foster asked for clarity on Representative
Josephson's statement that "this was not their concept."
Representative Josephson clarified that he was referring to
increasing the schedule I deliveries.
10:20:18 AM
Representative Galvin asked about the use of the word
"discretion." She wondered if the amendment would narrow
discretion in a way that would ensure that infractions
including the particular drugs would be adjudicated. She
referenced Ms. Kemp's earlier statement in response to an
example used by Co-Chair Foster that discretion would be
used. She used an example of someone backpacking or in a
casual circumstance where a person ended up getting another
drug. She thought that passing laws that allowed for more
discretion may not be the best avenue. She considered they
may want to make it easier in that the law was able to be
clear. She was uncertain the legislature wanted to add more
and more discretion as it wrote laws.
10:21:41 AM
Ms. Kemp responded returned to an example used earlier when
Co-Chair Foster had described a situation involving two
friends out on snow machines where one got hurt and the
pair had taken Oxycodone with them in the event of an
accident. She stated that from DOL's perspective, it was
discretionary whether to charge in that instance. She
explained that many laws had some level of discretion where
it was clearly not the intent of the legislature to capture
that type of conduct or trying to capture the type of
conduct where people were delivering Fentanyl or Oxycodone
to people for profit. She understood it was an
uncomfortable subject, but there was some level of
discretion expected throughout the criminal code.
Representative Galvin asked whether it would be prudent as
a rule for the legislature to establish broad opportunities
for more discretion in any sort of law. She felt it was not
good practice.
Ms. Kemp replied that she heard the point. She thought
perhaps it was more of a philosophical discussion about
some of the concepts. She referenced Representative
Galvin's earlier comment about having more information
about the effects of some of the narcotics. She stated it
was something the Controlled Substances Advisory Committee
was obligated to work with in terms of deciding where
things were scheduled including what rehabilitative
measures should be put in place.
10:24:10 AM
Representative Galvin stated the pieces in her mind were
not rehabilitative pieces, but were about how to create
policy with evidenced-based strategies that would result in
fewer deaths. She remarked there were some behavioral
pieces, but they were not necessarily things related to
rehab and such, but about growing an awareness. She stated
that deterrence could work if there was a large awareness
campaign to help individuals understand what the
consequences could be for illegal activity. She stated her
understanding that without all of the pieces in place it
may not lessen the deaths.
10:25:48 AM
Co-Chair Foster returned to conceptual Amendment 1 to
Amendment 6 and reminded members that in addition to
Fentanyl, it would add Carfentanil. He asked Ms. Kemp for
any additional thoughts on the proposed conceptual
amendment.
Ms. Kemp respected what Representative Ortiz was trying to
accomplish and she believed the conceptual amendment
accomplished the goal based on the example she had
provided; however, she clarified that her example was
limited to one drug, but there were many within schedule
IA. She explained there were multiple other scheduled
substances including Alfentanil. There were a number of
examples of very serious substances scheduled within IA and
trying to separate out very serious drugs like Fentanyl and
Carfentanil with high potency values would potentially
create real consequences for the department.
Representative Cronk thought they were downplaying the
effect drugs had on people. He stated that getting hooked
on Oxycodone was merely a gateway to more serious drugs. He
shared that a young female constituent had visited his
office and had told him she had asked her friends what they
were doing on a Saturday and the reply was they were doing
meth that day. He underscored it had become normalized. He
relayed another example of a person parked outside of a
boarding school selling "gummy bears." He stated, "These
people know what they're doing." He wanted to give the
department the tools and he wanted to ensure DOL had every
tool to be able to help.
Co-Chair Edgmon agreed with Representative Cronk to an
extent, but he did not want to pass a law that went too
far. He understood being tough on crime and he would be
there in the end. He stated it was a very delicate
conversation. He remarked that in a perfect world all of
the committee members would have legal experience to be
able to understand the department's perspective. He stated
there was one member on the committee who had been a
prosecutor and the other members were all laypersons. He
stated that based on his aforementioned comments and Ms.
Kemp's testimony, he would likely oppose the conceptual
amendment. He clarified that it did not indicate his intent
on the underlying amendment.
Representative Josephson respected the tenor and mood
behind Representative Cronk's position, and it explained
why he personally had opposed SB 91 [omnibus criminal
justice system reform legislation passed in 2016]. He
stated that the narrow matter before the committee did not
concern methamphetamine, which was a schedule II substance.
He agreed methamphetamine was a problem, but it would be
another amendment to make the bill even tougher.
10:30:05 AM
Co-Chair Foster reviewed that conceptual Amendment 1 to
Amendment 6 would add Carfentanil to Fentanyl.
Representative Cronk MAINTAINED the OBJECTION to conceptual
amendment 1 to Amendment 6.
A roll call vote was taken on the motion.
IN FAVOR: Hannan, Josephson, Ortiz
OPPOSED: Cronk, Galvin, Stapp, Tomaszewski, Coloumbe,
Edgmon, Johnson, Foster
The MOTION FAILED (3/8).
Co-Chair Foster returned to Amendment 6.
Representative Josephson referenced Ms. Kemp's mention of
the difficulty with the lab work. He thought lab work would
have to be done in any case to determine whether Fentanyl
was mixed with a schedule II substance.
Ms. Kemp agreed. She clarified the point she had been
trying to illustrate. She explained that when speaking to
the mens rea that applied to a particular substance, the
department had to prove the individual knew they were
delivering that particular substance. She stated it was not
so much related to what the substances tested positive for
after lab work. She used an example where a substance was a
combination of heroin and Fentanyl. She believed people
knew it was fairly common that Fentanyl was mixed with
fillers and other substances. She explained that if the
drug was mixed, the challenge would become proving the
substance was specifically Fentanyl versus simply a IA
controlled substance.
Representative Josephson asked if there was no mental state
that had something closer to strict liability for
delivering a substance [i.e., Fentanyl]. For example, a
speeding ticket fell under the strict liability category.
He explained that with a speeding ticket, "we don't care
what your brain was telling you, you did it."
10:33:10 AM
Ms. Kemp responded that she was reluctant to say that the
legislature could not accomplish what Representative
Josephson was asking about. She stated that current law
required a mental state specific as to the delivery of the
substance irrespective of the amendment. She elaborated
that the department had to prove mens rea as to the
schedule IA substance.
Representative Cronk asked if the amendment was positive or
negative for the department.
Ms. Kemp replied that the bill would give DOL and
prosecutors powerful tools. She respected some of the
comments related to goals in sentencing related to
deterrents and whether those things had practical
consequences. She stated it would go a long way in setting
a precedent that Fentanyl was the current "drug du jour"
that was causing countless deaths, overdoses, and creating
real problems for Alaska's communities. She believed the
adjustment to the sentencing range under the legislation
would have a positive effect on deterrence. She relayed
that the amendment would not create the overall framework
and would narrow the field to Fentanyl. She remarked that
ten years back, Oxycodone, Oxycontin, and heroin had been
the drugs primarily plaguing Alaskan communities. The
department had concerns related to the proposed amendment
and opposed it.
Representative Ortiz recalled from the initial review of
the legislation that without the hardening of the potential
sentences, prosecutions and convictions only amounted to
two cases in the past ten years.
10:37:02 AM
Ms. Kemp believed what had been testified previously
related specifically to the substances resulting in a
person's death and the surrounding homicide prosecutions.
She relayed there were countless incidents within the past
several weeks of major seizures of Fentanyl coming into
communities and creating real issues across the state.
Representative Ortiz clarified he was not intending to say
that Fentanyl and some of the other issues were not large.
He stated there was a difference between issues plaguing
society and the state's ability to address the issue. He
highlighted that while they may feel good about passing the
legislation because it was tougher on the issue, it did not
necessarily equate to resolving or improving on the issue.
Ms. Kemp understood what Representative Ortiz was saying.
She suspected the issue was that the bill was only one
piece of legislation and there may need to be other pieces
of legislation to address Representative Ortiz's concern
related to how to stop drugs from coming to Alaska
regardless of whether the state could prosecute once it
arrived. She could only speak to the current bill and
perhaps answer other questions.
Co-Chair Edgmon requested a wrap up on the amendment before
a vote.
Representative Hannan directed a question to Ms. Shroeder
who had been present for testimony given previously by John
Skidmore. She believed Representative Ortiz was reflecting
back to the specific testimony. She recalled Mr. Skidmore
had told the committee that in the last decade there were
five to seven cases that could have been prosecuted at the
higher level if the bill had been in place at the time.
Ms. Schroeder answered that the low number of five to seven
was specifically related to the murder in the second degree
language; however, amendments had been made to the bill
that expanded its scope. The bill also dealt with the
manufacture and delivery of drugs and there were far more
cases under that umbrella than under the homicide umbrella.
Representative Josephson thought the discussion had been
important. He reviewed his concerns. He stated that the
department and the law preferred not to break out the
schedules and they referred them to the advisory committee.
He has spoken with the deputy commissioner about the
advisory committee, and he believed it was a good thing.
However, he pointed out that the legislature was not
charging the advisory committee with any specific task. He
did not know that the advisory committee would come back
and discuss that there had been discussion on including few
[drugs] or all [drugs] now and pull others out later. He
did not believe the advisory committee had any instruction
under law to say that the legislature wanted the advisory
committee to break the schedules down. Instead, the drugs
were all swept up into certain schedules. He was told that
when SB 91 came up, former Senator Bill Stoltze had wanted
to make a point and was frustrated about the bill and
successfully moved GHB (a common date rape drug) away from
Ketamine, which was also sometimes used as a date rape
drug. He used the example to illustrate there were already
existing oddities in the schedules.
Representative Josephson believed the director's best
argument pertained to heroin mixed with Fentanyl. He stated
that the committee had been told HB 66 was a Fentanyl bill.
He emphasized that the amendment did not reduce penalties.
He spoke to his concern about the bill. He noted that the
committee had been told that the prosecutors would use
discretion. He remarked that he had perhaps been too
aggressive of a prosecutor. He highlighted a scenario where
one of the charges was connected to a burglary and law
enforcement did a frisk and found possession or knew there
was delivery. He stated that even if he thought the amount
was de minimus or a drug had been prescribed and simply
borrowed, he was going to bring it to the grand jury
because it was a bargaining tool to reduce the number of
counts against someone (instead of having three there were
four) and it strengthened the prosecutor's hand with the
public defender. He thought that when the public heard that
the prosecutors would not do something in a certain way,
they had a right to pause and ask how they would know.
Additionally, the department did not ask for the language,
which had been added by the House Judiciary Committee. He
remarked on the mood in the Judiciary Committee during the
discussion and noted one member had suggested there should
be the death penalty for some of the cases. He did not have
a good handle on the question of the culpable mental state.
He concluded by saying, "If we're going to call out
something, let's call out the worst of the problem and
that's Fentanyl." He asked for members' support.
Representative Cronk MAINTAINED the OBJECTION.
A roll call vote was taken on the motion.
IN FAVOR: Galvin, Hannan, Josephson, Ortiz, Coloumbe,
Edgmon, Foster
OPPOSED: Stapp, Tomaszewski, Cronk, Johnson
The MOTION PASSED (7/4). There being NO further OBJECTION,
Amendment 6 was ADOPTED.
10:44:41 AM
Co-Chair Foster returned to Amendment 5 that had previously
been rolled down the list.
Representative Tomaszewski MOVED to ADOPT Amendment 5,
33/GH1482\B.13 (Radford, 5/3/23) (copy on file):
Page 3, line 28:
Delete "20"
Insert "21 (20]"
Page 4, line 21:
Delete "10 to 14"
Insert "12 to 16 [10 TO 14]"
Page 4, line 23:
Delete "15 to 20"
Insert "17 to 21 [15 TO 20]"
Representative Tomaszewski remarked that the amendment
addressed the overlap in years to conviction. The
sentencing range was currently 7 to 11 years for a first
time offense. The sentencing for second and third offenses
would be moved according to the amendment.
Representative Stapp OBJECTED.
Representative Stapp asked what Amendment 5 would do in
light of the passage of Amendment 6.
10:45:58 AM
Ms. Kemp answered that the amendment likely had further
consequences than anticipated. She explained that the
amendment would adjust penalties for all class A felony
offenses. She highlighted assault in the first degree,
manslaughter, and robbery in the first degree as examples
of other class A felonies. The amendment would have far
reaching consequences that were not specific to controlled
substances. The amendment would have broad sweeping effects
on the way business was conducted in the department.
Representative Stapp assumed that the amendment would apply
to the change made in the previous committee of referral
pertaining to the initial sentencing. He asked what the
initial sentencing had been prior to the change.
Ms. Kemp asked for clarification on the question. She asked
if Representative Stapp was asking for the previous
sentencing range for any class A felonies.
Representative Stapp remarked that the previous sentencing
ranges were out of whack because a previous committee of
referral changed one of the sentencing ranges. He asked for
the initial sentencing range in the bill prior to the
change made in committee.
Ms. Kemp responded that a class A felony offense for a
first felony offense currently carried a presumptive
sentencing range of four to seven years. Examples of class
A felonies included assault and robbery in the first degree
unless there were enhancements or specific circumstances
that applied. She stated that what the committee talked
about related to the previous amendment was related to one
of the specific circumstances that enhanced the penalty.
The previously adopted amendment [Amendment 6] enhanced the
penalty only for the specific substance. She explained that
any other class A controlled substance distribution charge
would fall within the four to seven presumptive term.
Representative Stapp stated that the issue with Amendment 5
was the sentencing ranges applied to many things outside of
the drug-related scope of the bill. He assumed the change
in the range from the previous committee of referral that
put the other ranges out of whack, hence the concept behind
the amendment, also did the same thing to the assumptive
[presumptive] sentencing range.
Ms. Schroeder replied that the previous committee of
referral inserted the sentencing range of 7 to 11 years for
delivering a schedule IA controlled substance and made it
an enhanced penalty within the class A sentencing
structure. She stated it was in line with the other
enhanced penalties for other class A felonies. She pointed
to page 4, line 3 through 9 of the bill that included
language about possessing a firearm, using a dangerous
instrument while committing a class A felony. She clarified
that the enhanced penalty for the crime was a range of 7 to
11 years. She would not characterize the sentencing ranges
as being out of whack necessarily. The amendment was
consistent with the structure that was already in class A
felonies.
Representative Stapp stated his understanding that the
amendment made in the House Judiciary Committee had
aggravators pertaining to the underlying bill, while the
amendment did not have the aggravators. He asked if his
understanding was accurate.
Ms. Schroeder answered that the amendment made in the House
Judiciary Committee created an enhanced penalty. She
clarified that she was using a different term because
aggravator was the legal term. She explained that Amendment
5 did not touch the enhanced penalty, it touched the ranges
that applied to all class A felonies.
10:50:44 AM
Representative Josephson thought the department's point was
that even though it looked odd to have a first offense with
a sentencing range of 7 to 11 years and a second offense of
10 to 14 years, it had not been challenged in court as
violating some rational basis test or something similar.
Ms. Kemp answered not that she was aware of. She relayed
that it may have been litigated but thus far it had not
been seriously called into question.
Representative Tomaszewski in light of the discussion he
WITHDREW Amendment 5.
10:51:43 AM
AT EASE
10:54:44 AM
RECONVENED
Co-Chair Foster noted members needed to meet on the budget.
He would recess the meeting and hoped to reconvene at 12:30
p.m.
10:55:35 AM
RECESSED
12:40:57 PM
RECONVENED
Co-Chair Foster relayed that the committee was on Amendment
7. He noted that Amendment 5 had been withdrawn and
Amendment 6 had passed by a vote of 7/4.
Representative Ortiz WITHDREW Amendment 7, 33-GH1482\B.12
(Radford, 5/2/23) (copy on file).
Representative Hannan MOVED to ADOPT Amendment 8, 33-
GH1482\B.9 (Radford, 5/2/23) (copy on file):
Page 1, line 3:
Delete "relating to the computation of good time;"
Page 4, line 24, through page 5, line 10:
Delete all material.
Renumber the following bill sections accordingly.
Page 5, line 16, following the first occurrence of
"Act,":
Insert "and"
Page 5, lines 16 - 17:
Delete "and AS 33.20.0l0(a), as amended by sec. 5 of
this Act,"
Representative Cronk OBJECTED.
Representative Hannan explained that the amendment would
remove the deletion of eligibility for good time from the
bill. She stated that tough on crime bills with sentencing
had little effect on crime rates. She elaborated that in
the circumstance under discussion sentencing length did not
prevent deaths. She wanted to talk about what good time
release did. She stated that she hated to think of the word
"good" as the problem, but it was. She detailed that most
inmates were eligible for good time, which was one-third of
their sentence.
Representative Hannan provided a hypothetical scenario
where a person had a 30-year sentence for a drug
conviction. Without good time the individual served all 30
years. With good time the individual could serve 20 years
with 10 years of good time. She noted the scenario
disregarded whether good time was taken from the individual
for behavior in prison because for many people whose good
time was granted, it still came back as a management tool.
Representative Hannan explained that every time a person
had an infraction or violation in prison, some of their
good time could be taken and restored to their sentence.
She detailed that when the person served 20 years and was
released with 10 years remaining on their sentence, they
were still under supervision of the Department of
Corrections (DOC) via parole. She furthered that the
person's behavior was still monitored for the next 10 years
including urine tests and association with others. She
believed many individuals sentenced for drug crimes were
addicts. She remarked that the individuals may not have
been through treatment while in prison because due to
limited programming in prisons, treatment was provided
while an individual was released on parole under good time
and living in a halfway house.
Representative Hannan highlighted that if a person was no
longer going to be monitored for good time release that had
been removed from their sentence, they walked out of the
doors as a free agent, but they likely had not been through
drug treatment or programming to accept the ability to work
as a good citizen. She stressed that very high rates of
recidivism existed with all crimes in Alaska, especially
drug crimes. The element of using good time as a tool to
manage population while in prison and outside, led to lower
recidivism. She believed it was the goal in the end. She
thought people were distracted by the term "good" that it
somehow implied a person was virtuous, but it was not the
case. She stated it was about how the state managed the
population in the prison and for a period of time after a
sentence had been served. She did not want to return to a
time when full sentences had been served and people walked
out of prison without any reentry programming to avoid
reoffending. The amendment stripped out the provisions of
the good time computation from the bill. All of the other
sentencing and penalties remained in the bill.
12:46:42 PM
Representative Josephson requested to ask DOC a question.
He provided a scenario where a person was sentenced to
three years with no probationary period. He elaborated on
the example where the person did well in custody and
received one-third off their sentence, resulting in release
after two years. He asked for verification there was no way
to recall the good time if the individual subsequently
committed a crime during that one-year window after
release.
SIDNEY WOOD, DEPUTY DIRECTOR OF INSTITUTIONS, DEPARTMENT OF
CORRECTIONS (via teleconference), responded that if it was
a crime against the state that involved a three-year
sentence, the individual would be released to mandatory
parole for the one-year period. He relayed that if the
individual committed a new crime during the one-year period
it would be a violation of their mandatory parole and the
individual would be subject to return to serve the
remaining year or some portion of it.
Representative Josephson asked for verification that good
time could be recalled and an individual [out on good time]
was still theoretically "on paper."
Mr. Wood agreed it was true if the person was released to
mandatory parole supervision.
Representative Josephson reasoned the situation would
primarily involve felons. He asked if some [felons] were
not released to parole supervision.
Mr. Wood answered that mandatory parole supervision
included crimes against the state (felony or misdemeanor)
and one or multiple crimes with sentences totaling two
years or more and good time. He explained that the term of
mandatory parole was equal to the amount of good time the
sentence was reduced by.
Representative Josephson did not know what constituted a
crime against the state.
Mr. Wood clarified that it was a crime outlined in statute
versus a municipal or city crime. For example, the
Municipality of Anchorage had its own criminal code, though
it was not the case for all communities.
12:50:16 PM
Representative Stapp stated the goal was to give harsher
penalties to individuals trafficking Fentanyl that results
in the death of another individual. He remarked that the
sentence would be more than two years based on the
underlying provisions of the bill. He asked what it would
look like if the same individual had access to good time
that was currently not in statute.
Ms. Kemp replied that if someone was subject to the 7 to 11
year presumptive range, the removal of the provisions in
the bill would make them eligible for good time. She added
they would be eligible because it was a sentence of two
years or more.
Representative Stapp asked to hear from DOC.
Mr. Wood answered if an individual had a sentence in the 7
to 11 year range and there was good time, they would
receive one-third. For example, the individual would
receive three years off a nine-year sentence.
Representative Stapp provided a hypothetical scenario where
an individual was sentenced to a maximum of 11 years. He
stated his understanding that [with good time] an
individual would get 3.5 years off, which would be revoked
in the event of a probation violation.
Mr. Wood agreed.
Representative Cronk provided a scenario where a person
sold Fentanyl to an individual who subsequently died. He
asked if the amendment would make the person eligible for
good time.
Ms. Kemp replied that the amendment pertained specifically
to individuals convicted of an 1171/misconduct involving a
controlled substance in the first degree through misconduct
involving a controlled substance in the fourth degree. The
amendment did not necessarily deal with good time for the
commission of a homicide.
12:53:10 PM
Representative Josephson explained that under the current
version of the bill, a dealer of virtually anything who
killed someone would be punished more harshly. The
individual would receive 5 to 99 years instead of up to 20
years and would not be eligible for good time. He asked if
his understanding was accurate.
Ms. Kemp agreed. She explained the bill moved the offenses
into the category of murder in the second degree, which did
not have eligibility for good time. The typical range of
jail time for murder in the second degree was 15 to 99
years.
Representative Hannan provided wrap up. She did not believe
the amendment was soft on crime. The amendment recognized
the need for supervision of people who served time before
they were free citizens with all of their rights restored
such as voting and gun ownership etcetera. The amendment
recognized that the period of leaving prison and
functioning well in society was the most vulnerable and if
the state did not deal with treatment and supervision
there, the likelihood of recidivism was very high.
Secondly, it was not just that a person had committed a
murder, it was all of the drug crimes. She thought removing
good time took some of the tools used for successful
management of drug offenses out of the state's hands. She
did not believe it was the bill's original goal. She hoped
members would support the amendment.
Representative Cronk asked if the provision the amendment
would remove had been part of the original bill.
Ms. Schroeder answered in the affirmative.
Representative Josephson asked if the original bill had
contained the same language as written in subsection 5 on
page 5 of the bill.
Ms. Schroeder replied affirmatively.
Representative Stapp stated his understanding that if the
amendment passed there would be no good time for murder in
the second degree, but there would be good time for all of
the other drug provisions.
Ms. Kemp responded that Representative Stapp was correct as
it related to offenses captured "in this component."
Representative Galvin thought she had heard in a prior
hearing that the threat of taking good time away was an
important tool related to behavior in prison and for
individuals working in prisons to feel safer. Additionally,
it was her understanding that there was a sense that good
time worked well as a tool for lesser crimes.
Mr. Wood answered that good time was a useful tool for DOC
in terms of incentivizing good behavior within corrections
facilities, but it was one of many tools.
12:58:57 PM
Representative Hannan clarified that when the legislation
had first been described to the legislature and the public,
there was a focus on enhancing crimes for drug dealing that
resulted in death. She was concerned that the bill also
changed statute in areas for other drug crimes. She
believed it was a ripple effect that was not justified. She
stated the bill could still get tough on Fentanyl dealers
killing people; however, she thought it was bad policy to
include all other drug crimes with no good time. She did
not believe it would aid in reducing drug crimes overall.
She stated that the vast majority of people who end up in
prison in Alaska had diagnosed mental illnesses and for
many of them it was a coexisting addiction. She stressed
the importance of having all of the tools available in
order to enable people to return as functioning individuals
in their communities [once out of jail]. She had not heard
any research showing that keeping people in prison all of
their days improved their behavior when they returned to
society. She believed good time as a tool while people's
sentences still loomed over them on parole was a benefit to
ensuring reduced recidivism. She urged members' support.
Representative Cronk MAINTAINED the OBJECTION to Amendment
8.
A roll call vote was taken on the motion.
IN FAVOR: Hannan, Josephson, Ortiz, Stapp, Tomaszewski,
Coloumbe, Galvin, Edgmon, Foster
OPPOSED: Cronk, Johnson
The MOTION PASSED (9/2). There being NO further OBJECTION,
Amendment 8 was ADOPTED.
1:02:04 PM
Representative Josephson WITHDREW Amendment 9, 33-
GH1482\B.5 (Radford, 4/13/23) (copy on file).
Co-Chair Foster noted the amendment process was concluded.
He asked for any comments on the bill.
Representative Josephson remarked that the bill had been
moderated considerably in some ways during the current
meeting. He considered what his headline would be if he
were a journalist reporting on the bill. He summarized that
the state was moving from manslaughter to murder in the
second degree with no good time for many drug penalties for
distribution when someone died. He explained it was a
completely different kind of criminality where in one
instance a person was unable to resist or run from the drug
and in another instance they were asking for the drug. The
bill had taken that category and "amped it up considerably"
under Section 2. Additionally, the bill increased the
penalty for a first offense for Fentanyl. He stated that if
he were a journalist he would say there was no other way
than to describe the legislation than as a tough on drugs
bill.
1:04:53 PM
Representative Galvin hoped it made the front page of every
newspaper that the state was tough on drugs and drug
dealers. She stated the bill was very complicated and she
understood that one of the most important pieces was that
people needed to know about it for it to be effective.
People needed to understand that Alaska was not going to be
someone's friend if they were bringing drugs into the state
and selling them to others. She understood that perhaps the
legislation was not perfect, but she felt it sent the right
signal. She hoped everyone got the message.
Co-Chair Johnson MOVED to REPORT CSHB 66(FIN) out of
committee with individual recommendations and the
accompanying fiscal notes.
There being NO OBJECTION, it was so ordered.
CSHB 66(FIN) was REPORTED out of committee with two "do
pass" recommendations, five "no recommendation"
recommendations, and two "amend" recommendations and with
one new zero note from the Department of Law and four
previously published zero notes: FN1 (COR), FN2 (DFC), FN4
(DPS), FN7 (AJS); and two previously published fiscal
impact notes: FN5 (ADM) and FN6 (ADM).
Co-Chair Foster thanked the department.
1:08:08 PM
AT EASE
1:13:58 PM
RECONVENED
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 3 CS WORKDRAFT FIN v S 050423 .pdf |
HFIN 5/5/2023 9:30:00 AM |
HB 3 |
| HB 28 Amendments 1-2 050423.pdf |
HFIN 5/5/2023 9:30:00 AM |
HB 28 |
| HB 66 Amendments 1-9 050423.pdf |
HFIN 5/5/2023 9:30:00 AM |
HB 66 |
| HB 66 Amendments 1-9 050423 w Actions 050523.pdf |
HFIN 5/5/2023 9:30:00 AM |
HB 66 |
| HB 66 DOC Response to HFIN - 050823 .pdf |
HFIN 5/5/2023 9:30:00 AM |
HB 66 |
| HB 3 Public Testimony Rec'd by 050523.pdf |
HFIN 5/5/2023 9:30:00 AM |
HB 3 |
| HB 66 Public Testimony Rec'd by 050523.pdf |
HFIN 5/5/2023 9:30:00 AM |
HB 66 |
| HB 28 Public Testimony Red'd by 050523.pdf |
HFIN 5/5/2023 9:30:00 AM |
HB 28 |