Legislature(2019 - 2020)SENATE FINANCE 532
05/02/2019 01:30 PM Senate FINANCE
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| Audio | Topic |
|---|---|
| Start | |
| SB32 | |
| SB33 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | SB 32 | TELECONFERENCED | |
| + | SB 33 | TELECONFERENCED | |
| + | SB 34 | TELECONFERENCED | |
SENATE BILL NO. 32
"An Act relating to criminal law and procedure;
relating to controlled substances; relating to
probation; relating to sentencing; relating to reports
of involuntary commitment; amending Rule 6, Alaska
Rules of Criminal Procedure; and providing for an
effective date."
Co-Chair von Imhof introduced the bill.
1:33:17 PM
BETH GOLDSTEIN, INTERIM PUBLIC DEFENDER (via
teleconference), discussed that the American Bar
Association recommended amount was used. Four attorneys to
handle the caseload. The Department of Law (LAW) support
staff positions. She remarked that there was an anticipated
increase in new felony drug cases, with the anticipation
that there would be approximately 740 new cases based on
the rollback and statistics. She assumed that approximately
19 percent would not come to the Public Defender Agency,
because either the defendants would not be eligible for
appointed counsel or they would have a conflict with the
agency. Therefore they would go to the Office of Public
Advocacy (OPA) or contracted counsel. She stated that there
would be a remaining 600 new felony drug cases that the
agency would handle under the legislation. She remarked
that the agency used the American Bar Association
recommended amount of 150 felony cases per attorney per
year to determine what would be needed with respect to the
felony drug cases. As a result, there would be four
attorney to handle the increased case load. She noted that
one additional attorney would be needed to handle the
recriminalizing of the driving without a license cases. The
department was also seeking five additional support staff
positions. She stressed that, currently, the Public
Defender office was understaffed with respect to law office
assistants and paralegals. She felt that in order to avoid
requesting more attorney positions, four new staff were
needed for the new drug felony cases and one new staff for
the driving cases.
1:35:38 PM
Co-Chair von Imhof noted that the review of the fiscal note
8 OMB 1631. She stated that it was approximately $1.4
million a year to handle the new caseload of 600 new cases.
Senator Bishop asked if the fiscal note was adequate for
the bill.
Ms. Goldstein that there would be an updated fiscal note
was actually $1.3 million
Senator Bishop asked about the new cases ever year. He
asked if the cases would all go to trial. He wondered if
the state could execute the proper action.
Ms. Goldstein responded that it was not anticipated that
all the cases would go to trial. She explained that the
most drug cases were basic felony cases, but some were more
complicated than others. She stated that the American Bar
Association determined that a reasonable caseload for a
felony-level attorney was 150 cases per year. She explained
that, because the cases would move through the system, the
agency could handle 600 more cases with four felony-level
attorneys.
Senator Bishop stated that he would discuss the issue with
the Co-chairs.
Co-Chair von Imhof corrected the fiscal note 8 amount to
$1.3 million.
Senator Wielechowski asked about Section 47 and the switch
to allow for hearsay evidence to be presented to the Grand
Jury. He queried support for that section.
Ms. Goldstein responded that she also had concerns about
the section. She noted that the cases may take longer
without the certified judgements. She stated that the
agency did not typically participate in Grand Jury
proceedings. She remarked that it may take a little longer
to plead out the cases, because there would not be
certified judgments from the Grand Jury.
Senator Wielechowski asked if there would be an increased
fiscal note as a result, or only an increased workload.
Ms. Goldstein replied that she believed that it would only
slightly increase the workload.
Senator Wielechowski asked about Section 29 and a change in
time to be served for possession. He understood that the
first two offences for simple possession were currently a
Class A misdemeanor with no jail time, and the section
changed it to a Class C felony with up to five years in
jail.
Ms. Goldstein agreed.
Senator Wielechowski asked about the policy perspective.
1:41:02 PM
Ms. Goldstein noted that the directed measure could
increase litigation and caseloads.
Senator Wielechowski asked how many cases could be expected
to be first time possessors of drugs. He noted that the
felony provision.
Ms. Goldstein responded that the first time cases could not
be predicted. She noted that tracking future cases would be
easier with new software. She stated that the philosophy
that treatment available was necessary.
Senator Shower pointed out the analysis. He wondered if a
section might be missing.
Co-Chair von Imhof wondered whether there was work with the
Office of Management and Budget (OMB) administrative
director to acquire new fiscal notes.
Ms. Goldstein noted that the mistake on the fiscal note was
being corrected.
Senator Shower stressed that it seemed to be a recurring
theme, so wanted to be sure it was correct.
1:44:42 PM
Senator Wielechowski expressed concern about the
terminology related to possession. He asked about the
perspective of the long-term impacts of someone getting a
felony arrest. He specifically asked about job, education,
and housing opportunities.
Ms. Goldstein noted that conviction of a felony had many
major ramifications from not being able to vote to getting
a job. She noted that there were some ramifications with
respect to child custody issues and needed public housing.
She reiterated that a felony conviction could put a person
behind in many areas of life.
Senator Wielechowski stated that the prosecutors understood
that possession could be pled down to a misdemeanor. He
queried that rational, and the experience about pleading
down simple possession.
Ms. Goldstein agreed that the felony caused additional
issues when compared to a misdemeanor. She stated that the
ramifications in life.
Senator Wielechowski commented on the argument about a
suspended entry of judgment. He queried the percentage of
drug possession cases that were dealt with in that manner,
and whether it was a reasonable way to deal with future
cases.
Ms. Goldstein replied that she would provide the numbers.
She noted that there were some useful tools that would help
people to gain treatment. She noted other components to
help succeed. She added that the different challenges to
receiving treatment.
1:49:15 PM
Senator Micciche asked about incentive to seek treatment.
He remarked that someone may not want to seek treatment
without a suspended entry of judgment. He felt that issuing
a violation would not have a higher incentive for
rehabilitation.
Ms. Goldstein noted that a person has to want to have the
treatment. She stressed that the addictive cycle showed
that people regularly try to get sober, but built into the
recovery is a failure rate before they can get back into
recovery.
Senator Micciche stated that the state was at war because
of drug related crime. He noted that crimes related to
supporting requirement. He stated that the change was a
lifesaver. He felt that someone who has
1:51:37 PM
Ms. Goldstein believed that the charge versus the
conviction. She commented that the obstacles to overcome
were, and not everyone who possesses is addicted.
Co-Chair von Imhof stated that a specialist regarding
mental health and addiction would be presenting to the
committee.
Senator Hoffman agreed with the chair that another
contributing entity might be necessary. He felt that new
treatment centers were likely necessary. He stated that the
doors could be open by the individuals to seek treatment.
The provision might provide false hope.
1:54:52 PM
Senator Wilson stated that the without incentive for
treatment the facilities do not succeed. He stressed that
without the supportive infrastructure there would be to
patient incentive. The lingering time can affect.
Senator Wielechowski asked about treatment incentive
experience as the public defender and punishment.
Ms. Goldstein responded that the approach much be holistic,
and multiple things were asked of the people that were
overwhelming.
Senator Bishop wanted to have a difficult conversation
about addiction. He thought that the dialog was very
important.
Co-Chair von Imhof agreed that the holistic approach was
very important. She noted that federal funds were available
for behavioral health therapy.
1:59:14 PM
JAMES STINSON, DIRECTOR, OFFICE OF PUBLIC ADVOCACY, echoed
the statements made by Ms. Goldstein. He remarked on the
increase in caseload for the legislation. He stated that
OPA was requesting $694,700, which equated to three
attorneys and two support staff. He believed that was
needed to absorb the increase in caseload.
Co-Chair von Imhof noted the fiscal note, OMB 43, at
approximately $350,000.
Mr. Stinson stated that it was incorrect, because it was an
older fiscal note. She queried the new fiscal note number.
Senator Hoffman replied that it was OMB 694.
Senator Bishop asked if the fiscal note was accurate.
Mr. Stinson replied that he believed it was accurate. The
fiscal note was based on the numbers that were most easily
monetized. He noted that there were probably additional
costs, that were still uncertain. He felt the money allowed
for a distribution to the key areas and offices for the new
cases.
Senator Bishop asked about the new fiscal note and the
elimination of the DNA testing.
Mr. Stinson was in agreement. He remarked that there was no
anticipated cost increase as a result of the DNA testing,
so there would be no impact on the fiscal note.
Senator Micciche asked about the contract to staff funding
shift. He wondered whether there was work to resolve some
of the conflict problems with the Public Defenders Agency.
Mr. Stinson replied that the Office of Public Advocacy
(OPA) relied on expensive independent contractors. He
remarked that there was a proposal to remove $500,000 out
of the contractor line, and utilize additional PCNs for
attorneys. He noted that the request did not consider SB
32. He stated that OPA was attempting to find efficiencies
to bring the taxpayer the best value for their dollar. He
noted that contractors were more expensive than inhouse
attorneys in almost all circumstances. He stressed that
there was an attempt to find a balance, while also being
conscious of large overhead with a large amount of
employees.
2:04:10 PM
Senator Wilson asked about different jurisdictions that
were more conflicted out.
Mr. Stinson replied that there were localities with higher
conflict rates. He shared that Kenai was a smaller
community, and remarked that an increase in felony drug
prosecutions would result in more codefendants and
additional drug cases. He was not completely sure where the
positions would be placed geographically, but the positions
were based on raw numbers.
Senator Wilson requested the rates of the conflicted cases.
He remarked that, in Palmer, he may prefer to conflict out
as a public defender for the person who had the contract.
He felt that it would be a better attorney's office than
the Public Defenders Agency.
Senator Wielechowski asked about an expired narcotic
prescription, and whether that be a crime under this bill.
Mr. Stinson replied that, presuming it would meet the new
definition, it would be the zero to two year presumptive
range up to five years.
Senator Wielechowski wondered whether it would be a felony.
Mr. Stinson replied in the affirmative, but would further
examine the exact answer.
Senator Wielechowski queried was considered a Class 6A
controlled substance. He wondered if marijuana was in that
class.
2:06:52 PM
Mr. Stinson asked for the location within the bill
Senator Wielechowski stated that he was looking at page 19,
lines 22-24.
Co-Chair von Imhof wondered whether this question was
better for a different testifier.
Senator Wielechowski agreed.
Co-Chair von Imhof stated that Mr. Skidmore might be better
to provide the requested information.
Mr. Stinson deferred to Mr. Skidmore.
2:08:19 PM
Co-Chair von Imhof recalled a presentation about Fentanyl.
She noted that any weight of Fentanyl seemed almost deadly,
but a small amount of oxycontin of similar weight may have
a different impact on the body. She wondered if the drugs
were treated similarly under the legislation.
JOHN SKIDMORE, DIRECTOR, CRIMINAL DIVISION, DEPARTMENT OF
LAW, stated that a schedule 6A drug was marijuana. He
stated that Fentanyl and oxycontin were both considered
schedule 1A substance, but SB 32 did not differentiate
based on weight. He stated that there were different
factors within the law, both aggregators and mitigators
that both applied. He stated that the amounts and the
seriousness of the amount was treated differently, which is
why there was a range in sentencing. He referred to the
Knight Case, which addressed those different considered
factors within the current Alaska law.
Co-Chair von Imhof remarked that there was a consideration
of both sentencing and also having a felony on someone's
record. She did not know whether there was a way to sever
those two drugs, and treat each one differently.
2:10:44 PM
Senator Wielechowski asked if an expired prescription for
oxycodone, and that was given to someone in pain, whether
that would be a felony under the bill.
Mr. Skidmore responded that the concept of giving another
person a controlled substance without a prescription would
qualify as a felony. He noted that in his 20 years of
prosecution, there was no case with those referred facts.
He stressed that all the prosecutors state that, with that
hypothetical, that they would decline that case. He
remarked that his division did not evaluate those drugs,
rather the Controlled Substance Advisory Board made those
determinations.
Senator Wielechowski requested statement from Department of
Law (DOL) that they would not be prosecuting someone
because of an expired prescription.
Mr. Skidmore noted that he was not in a position to make
such claims.
2:13:11 PM
Senator Wielechowski asked about the schedule 6, four
ounces or more of marijuana was now a felony under the
legislation.
Mr. Skidmore explained that the possession outside of the
legal amounts within the industry was affirmative. He noted
the exceptions on page 18, line 19, which showed more
complications than the one subsection addressing the
amount.
Senator Micciche wondered whether the intent of the
administration was to pass the bill in order to prosecute
the person who takes another person's controlled substance
for some temporary relief from pain.
Mr. Skidmore replied that it the intent was not the intent
of the administration.
Senator Micciche asked whether the state's drug problems
were a associated with a single oxycodone provided to
someone is a necessary pain relief situation.
Mr. Skidmore replied that he did not believe so.
Senator Micciche asked for the difference between the legal
and black market marijuana industry.
2:15:53 PM
Mr. Skidmore noted that the black market for marijuana
remained a crime. He noted that outside of the industry
regulation remained a crime.
Senator Micciche wondered whether the bill was clarified
that legal marijuana was not a part of the increased
sentences.
Mr. Skidmore replied that it was on page 18, and was
repeated in a number of sections.
Senator Wielechowski cited the language in Section 29,
which said, "if a person possesses any amount of a Schedule
1A controlled substance, they are committing a felony." He
understood that there may not be an attempt to prosecute
with a felony, but wondered whether a trooper or police
officer could arrest and charge a person with a felony and
put that person in jail requiring that person to post bail
and possibly lose their housing, child custody, and
housing, under the bill made it possible under the bill.
Mr. Skidmore agreed that the law stated that it was
illegal, but his experience showed him otherwise.
Senator Wielechowski wondered why a trooper could authorize
with a heavy hand, and advised that the felony portion be
changed. He
2:19:50 PM
Mr. Skidmore responded that Oxycodone was scheduled as a
controlled substance. He stated that a prescription was
necessary to obtain the drug. He stressed that the bill was
focused on the seriousness of the drug.
Co-Chair von Imhof stated that it was the intent to hear
public testimony at a later meeting.
SB 32 was HEARD and HELD in committee for further
consideration.
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