Legislature(2023 - 2024)BUTROVICH 205
02/28/2024 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB66 | |
| SB165 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 66 | TELECONFERENCED | |
| *+ | SB 165 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 66-CONTROLLED SUB;HOMICIDE;CRIMES;SENTENCING
[Contains discussion of SB 64.]
1:46:00 PM
CHAIR CLAMAN announced the consideration of CS FOR HOUSE BILL
NO. 66(FIN) am "An Act relating to homicide resulting from
conduct involving controlled substances; relating to misconduct
involving a controlled substance; relating to sentencing; and
providing for an effective date."
This is the first hearing of HB 66 in the Senate Judiciary
Committee. The committee heard the companion bill, SB 64, during
the last session. He invited Ms. Schroeder to identify herself
for the record and present the bill.
1:46:37 PM
KACI SCHROEDER, Assistant Attorney General, Criminal Division,
Department of Law (DOL), Juneau, Alaska, introduced HB 66 on
behalf of the administration. The Governor's Office requested
the introduction of HB 66 and SB 64 to address a stark increase
in overdose deaths. Overdose deaths in Alaska remain high due in
large part to synthetic opioids, such as fentanyl, and
stimulates, such as methamphetamines.
MS. SCHROEDER sought confirmation that the committee wanted a
recap of SB 64, followed by an introduction of HB 66.
CHAIR CLAMAN confirmed that is the way to proceed.
1:47:53 PM
MS. SCHROEDER explained that SB 64 consists of two main
operative sections:
Section 1
Increases the crime from manslaughter to murder in the second
degree for a person who knowingly manufactures or delivers a
controlled substance in violation of:
AS 11.71.010 - AS 11.71.030
These statutes pertain to misconduct involving a controlled
substance in the first through third degrees, and
AS 11.71.040(a)(1)
This statute pertains to misconduct involving a controlled
substance in the fourth degree, but only as it pertains to
schedule IV-A controlled substances.
MS. SCHROEDER summarized Section 1. She said that the current
law could hold a person responsible for manslaughter if they
deliver these drugs in violation of these statutes to someone
who dies as a direct result of their ingestion. She said that SB
64 elevates the offense; it proposes the law could hold that
person responsible for murder in the second degree.
1:49:03 PM
CHAIR CLAMAN asked about the distinction between the two groups
of schedules and the drugs involved with them.
1:49:19 PM
MS. SCHROEDER referred to a Department of Law handout dated
March 1, 2023, available on The Alaska State Legislature
website, https://www.akleg.gov/basis/Committee/List/33. She
described the handout. The front page charts out misconduct
involving controlled substance statutes, listing felony class,
sentence range, and types of misconduct, such as delivery,
manufacture, and possession of drug. The second page charts the
schedules and examples of drugs in those schedules. She said the
statutes reference misconduct involving controlled substance
crimes and encompass a wide range of substances. She said the
crime depends on which drugs and a person's conduct with them;
she noted this bill includes schedule IV-A drugs.
MS. SCHROEDER drew attention to AS 11.71.010, .021, and .030,
explaining SB 64 proposes the law could hold a person
responsible for murder in the second degree if:
- a person violated all elements in a given section, in its
entirety, with no subsections excluded, and
- someone dies as a result of ingesting the substance.
MS. SCHROEDER drew attention to AS 11.71.040, stating this
section pertains to schedule IV-A controlled substances, which
include ketamine and benzodiazepines, like Ativan, and Valium.
The most serious level drugs are schedule I-A substances,
including heroin, fentanyl, and gamma-hydroxybutyric acid (GHB),
commonly known as a date rape drug. Schedule II-A drugs include
peyote, methamphetamine, and cocaine. Schedule III-A includes
stimulants such as appetite suppressants, depressants, and
certain anesthetics. These are the levels of drugs under
discussion.
MS. SCHROEDER stated that controlled substances not included in
this bill are schedule V-A, which includes buprenorphine, and
VI-A, which includes marijuana.
1:51:32 PM
MS. SCHROEDER explained Section 2 of SB 64:
Section 2
This provision prohibits good time for felony drug dealing. A
person who committed a crime involving the distribution or
manufacture of drugs would not be eligible for good time.
1:51:55 PM
MS. SCHROEDER summarized SB 64, stating the bill is short and
has two primary sections. Sections 3, 4, and 5 are technical and
include the repealer, applicability, and effective date
sections.
1:52:09 PM
MS. SCHROEDER moved on to HB 66, stating it differs greatly from
SB 64. She walked the committee through the bill by section as
follows:
Section 1
This section is the most similar to SB 64. It elevates the crime
of a death that results from the direct ingestion of a
controlled substance in violation of AS 11.71.010, AS 11.71.021,
or AS 11.71.030 to the offense of murder in the second degree.
One difference is that HB 66 does not elevate the offense for
violating AS 11.71.040; that crime would remain manslaughter for
schedule IV-A drugs, which is current law.
1:53:44 PM
Section 3
The House decided to break up the definition section. The word
"ingestion" appears multiple times, so the drafter needed to
include it in the general definition section. This is the sole
purpose of Section 3.
1:54:06 PM
Section 4
This section is new. It states that a person commits the crime
of misconduct involving a controlled substance in the first
degree if that person delivers any amount of a schedule I-A, II-
A, III-A, or IV-A controlled substance to a person who is:
• mentally incapable;
• incapacitated; or
• unaware that a controlled substance is being delivered.
MS. SCHROEDER explained that this is an unclassified felony
subject to a sentence of five to 99 years. She explained the
rationale for Section 4, stating that the division had seen
cases where people administered drugs by slipping them into a
milkshake or injected an individual while they slept to keep
them unconscious longer. She described a mentally incapable
individual who was injected with methamphetamine and targeted
because of their mental incapacity. These offenses are serious.
This bill does not require the law to prove motive; it only
requires that the act was done. HB 66 encompasses slipping a
controlled substance into a drink, like at a bar. HB 66 proposes
that the law elevate the offense to an unclassified felony when
the person is mentally incapable, incapacitated, or unaware that
a controlled substance is being administered.
1:55:43 PM
CHAIR CLAMAN sought clarification that HB 66 and SB 64 do not
identify new criminal conduct; instead, they raise the level of
existing offenses, thereby increasing the penalty when someone
is found guilty.
1:56:06 PM
MS. SCHROEDER agreed, noting one exception. She expressed her
belief that one part of the bill potentially lowers penalties
slightly. She said she would discuss this later.
CHAIR CLAMAN sought confirmation that HB 66 does not create new
crimes.
MS. SCHROEDER replied, correct. She referred to Section 4,
stating that current law classifies the misconduct involving a
person who slips someone a schedule I-A drug as "delivery."
1:56:34 PM
SENATOR TOBIN sought confirmation that the definition section
would not affect any of the services provided under Crisis NOW
or in AS [47] holds.
MS. SCHROEDER replied that she did not think so. She stated that
DOL pulled the definitions from sexual assault statutes and is
familiar with them. She said that, to her knowledge, the
definitions would not affect those services.
1:57:10 PM
MS. SCHROEDER moved on to Section 5.
Section 5
This is the definition section. DOL is familiar with these
terms; they are in the sexual assault statutes and used in
litigation. She stated that applying these terms in this context
should not pose significant challenges.
Section 6
This section elevates the delivery of methamphetamine from a
Class B felony to a Class A felony. Under current law, this is
misconduct involving a controlled substance in the third degree.
HB 66 proposes to elevate this offense to misconduct involving a
controlled substance in the second degree.
1:58:14 PM
Sections 7
Sections 7 and 8 relate to the distribution of marijuana. Under
current law, a person commits a Class B felony if that person
delivers marijuana to somebody under 19 years of age who is at
least three years younger than the person delivering the
substance. The House restructured and tiered this so that a
person commits a Class B felony if that person delivers
marijuana to somebody under 18 who is three years younger than
the person delivering the substance.
Section 8
This section relates to the distribution of marijuana. A person
commits a Class C felony if that person delivers marijuana to a
person who is 18 years of age. A person commits a Class A
misdemeanor if a person delivers marijuana to a person who is 19
to 21 years of age. HB 66 has a graduation of offenses based on
conduct. She clarified that the misdemeanor does not appear in
the bill, explaining that the bill works in conjunction with
current law. Only the felony restructuring appears in HB 66.
1:59:25 PM
CHAIR CLAMAN asked whether Section 7 proposes to increase the
penalty for delivering marijuana to a person under 19.
MS. SCHROEDER replied that under current law, it is a Class B
felony if a person delivers marijuana to someone under 19 years
of age who is at least three years younger than the person
delivering the substance. Section 7 draws the line at 18.
Current law sets the age at 19, while HB 66 sets it at 18. This
reduces the group of people subject to a class B felony. HB 66
proposes that a person commits a Class C felony if that person
delivers marijuana to a person who is 18 years of age.
2:00:12 PM
MS. SCHROEDER moved on to Section 9, stating:
Section 9
Section 9 is new and amends the sentencing statutes for Class A
felonies. HB 66 proposes the presumptive range would be seven to
11 years if the conviction were for manufacturing or delivering
fentanyl or delivering meth. This represents a sentencing
enhancement for that conduct.
Section 10
This is the applicability section.
Section 11
This is the effective date section.
2:00:53 PM
SENATOR KIEHL brought up a hypothetical situation where two
people with an addiction are using together. One person
overdoses. The other does everything right to assist,
administers CPR, and calls for help. He said that under the text
of the original bill, this person could still be charged with
murder in the second degree. He asked whether the House
addressed this "fellow addict" problem in the bill.
2:01:29 PM
MS. SCHROEDER replied that HB 66 does not address that issue.
She stated that sharing or delivering drugs is already criminal,
and the courts can prosecute such conduct. She said the statute
is the floor, meaning the courts have the discretion to
prosecute but are not obligated to do so. Prosecutors factor in
the behavior of a person who does everything right. They analyze
the circumstances and determine whether or how to charge a
"fellow addict." She emphasized that there is no safe harbor for
delivery, though there is one for possession in lower-level
offenses, which HB 66 does not address.
2:02:19 PM
SENATOR KIEHL clarified that he was not suggesting a safe harbor
for delivery. He explained that prosecutors are not applying the
totality of circumstances in a growing body of cases in other
states, at least not as he believes they should.
2:02:44 PM
CHAIR CLAMAN asked whether there is an affirmative defense for a
co-addict who does everything right in the "fellow addict"
scenario. He wondered whether there is an affirmative defense to
address this and show that this is different from criminalized
conduct.
2:03:19 PM
MS. SCHROEDER replied that AS 11.71.311 restricts prosecution
for possession. She said possession might be charged if it is
unclear whether they were sharing. If the person calls for
medical help, cooperates with law enforcement, and does
everything right, there is a restriction on prosecution in this
statute. She emphasized that this restriction is limited to
possession.
2:03:47 PM
CHAIR CLAMAN offered an option to address this scenario. Amend
that section of the statute in the form of an affirmative
defense, not as a prohibition on prosecution. He said the
question becomes whether that would be a complete defense to the
charge or the basis for reducing the charge.
2:04:12 PM
MS. SCHROEDER replied that if the committee wants to consider an
amendment, the Criminal Division is interested in its drafting.
2:04:52 PM
CHAIR CLAMAN asked whether there are issues arising from other
drugs or if fentanyl is the primary cause of overdoses.
MS. SCHROEDER replied that opioids and stimulants like
methamphetamine are large drivers, but other drugs are of
concern. She explained that the administration drafted this bill
to encompass a broader range of drugs, not just fentanyl. She
referred to a Department of Health (DOH) report from the Office
of Substance Misuse and Addiction Prevention. This "Alaska Facts
and Figures, 2021 Drug Overdose Mortality Report" was updated on
July 25, 2022. She expressed her belief that the report might
help answer the question.
2:06:13 PM
CHAIR CLAMAN opened public testimony on HB 66.
2:06:56 PM
MICHAEL GARVEY, Advocacy Director, American Civil Liberties
Union (ACLU) of Alaska, Anchorage, Alaska, testified in
opposition to HB 66, stating that the ACLU fully recognizes the
pain created by overdose deaths and supports the legislature in
taking action to address them. However, HB 66 relies on a
punitive strategy, which will not reduce overdose deaths.
However, it will decrease resources the State could use for more
effective strategies.
MR. GARVEY suggested the State focus on substance misuse
prevention, ensuring that all Alaskans have access to high-
quality treatment and recovery supports. These recommendations
recognize the crisis for what it is, a public health crisis.
They align with the Governor's Advisory Council on Opioid
Remediation.
MR. GARVEY acknowledged that law enforcement plays a critical
role in reducing overdose deaths by disrupting supply and
tracking overdoses to warn communities when dangerous drugs are
spreading. However, research has shown that the certainty or
perception of being caught is a more effective deterrent than
the severity of penalties. This includes research from the
Alaska Criminal Justice Commission. Alaska already has criminal
penalties for the behaviors described in HB 66. These penalties
can be enforced rather than pursuing more complex prosecutions.
MR. GARVEY warned that increasing penalties may have the
opposite effect as intended. He said that overdose deaths
increased due to hesitancy in seeking help in jurisdictions
where similar legislation passed. Alaska must reduce the rate of
overdose deaths. However, putting people in prisons, where 80
percent of people have a substance use disorder, for more
extended periods will not achieve this goal. ACLU opposes HB 66
because Alaska must prioritize its resources for the public
health and law enforcement strategies that are shown to work.
2:09:01 PM
CHAIR CLAMAN closed public testimony on HB 66.
CHAIR CLAMAN held HB 66 in committee.