04/09/2019 03:30 PM Senate STATE AFFAIRS

        SB  32-CRIMES; SENTENCING;MENT. ILLNESS;EVIDENCE                                                                    
                                                                                                                                
4:29:46 PM                                                                                                                    
CHAIR   SHOWER  reconvened   the   meeting   and  announced   the                                                               
consideration of 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."                                                                       
                                                                                                                                
He stated  that this is the  third hearing and the  purpose today                                                               
is to get answers to the questions that have been raised.                                                                       
                                                                                                                                
4:31:57 PM                                                                                                                    
SENATOR KAWASAKI read the first question:                                                                                       
                                                                                                                                
     Section 28:  What was the  average sentence  length for                                                                  
     disorderly conduct both pre- and  post- SB 91? From the                                                                    
     time  of arrest,  what is  the average  amount of  time                                                                    
     that a  person is in  custody for a  disorderly conduct                                                                    
     charge? (Presume no prior  convictions or mitigators or                                                                    
     aggravators)                                                                                                               
                                                                                                                                
ROBERT  HENDERSON, Deputy  Attorney General,  Department of  Law,                                                               
Criminal  Division,  Anchorage,  said   DOL  did  not  have  that                                                               
information, but they  were checking to see if  the Department of                                                               
Corrections  had  it.  He  added that  pre-Senate  Bill  91,  the                                                               
maximum  term   for  disorderly   conduct  was  10   days.  Prior                                                               
convictions,  mitigators,  and  aggravators  didn't  change  that                                                               
maximum. Under the current law,  the maximum term of imprisonment                                                               
for disorderly conduct  is 24 hours, regardless of  the number of                                                               
prior   convictions   or   whether  there   are   mitigators   or                                                               
aggravators.                                                                                                                    
                                                                                                                                
SENATOR KAWASAKI said  he was trying to understand  the impact of                                                               
returning  the  maximum  term   of  imprisonment  for  disorderly                                                               
conduct to ten days.                                                                                                            
                                                                                                                                
4:33:51 PM                                                                                                                    
SENATOR KAWASAKI read question 2:                                                                                               
                                                                                                                                
     Section 32:  How was the  threshold for 1A and  2A drug                                                                  
     position determined?  How did the  Department determine                                                                    
     the  threshold to  show personal  use versus  intent to                                                                    
     distribute?                                                                                                                
                                                                                                                                
MR.  HENDERSON   explained  that  the  Alaska   Criminal  Justice                                                               
Commission  (ACJC) initially  proposed a  2.5 gram  threshold for                                                               
schedule  IA and  IIA controlled  substances, but  the thresholds                                                               
were changed  during the legislative process.  Under current law,                                                               
trafficking under  1 gram of  a schedule IA  controlled substance                                                               
is  a  class C  felony  and  trafficking  under  2.5 grams  of  a                                                               
schedule  IIA drug  is a  class C  felony. Trafficking  more than                                                               
that amount is a class B felony.                                                                                                
                                                                                                                                
The  Justice  Reinvestment Report  to  the  Legislature said  the                                                               
rationale  for  the changes  to  the  drug  laws was  that  post-                                                               
conviction admissions  to prison for  drug offenses had  grown 35                                                               
percent  in the  10 years  prior to  criminal justice  reform and                                                               
that felony drug  offenders were spending more time  in jail than                                                               
they  were 10  years ago.  The proposal  to reduce  the sentences                                                               
available  to  drug  offenders  was  based  on  the  commission's                                                               
determination  that  there was  little  evidence  of a  deterrent                                                               
effect   in   the   sentencing   scheme   for   drug   offenders.                                                               
Reclassifying drug  trafficking of  schedule IA and  schedule IIA                                                               
controlled  substances  achieved  the  intended  goal  to  reduce                                                               
sentencing and  the prison terms  available to  drug traffickers.                                                               
The reduction  of presumptive sentencing  for most  offenses also                                                               
reduced the  availability of  prison and jail  as a  sanction for                                                               
drug trafficking.                                                                                                               
                                                                                                                                
CHAIR SHOWER  asked the department  representatives to  follow up                                                               
with responses  to any lingering questions  by Thursday, 4/12/19,                                                               
and not later than next Tuesday.                                                                                                
                                                                                                                                
4:37:09 PM                                                                                                                    
SENATOR COGHILL said he agrees  in part about the intended effect                                                               
of less  charges but he  also recalls there was  discussion about                                                               
charges  that   were  bargained  down  pre-Senate   Bill  91.  He                                                               
suggested it  would be  helpful to  have a  graph that  shows the                                                               
difference  between the  initial  charge and  the bargained  down                                                               
offense. Then maybe we can see  how that has changed the existing                                                               
law, he said.  The point is to  look at where the  failure was to                                                               
ensure we don't return to a failure.                                                                                            
                                                                                                                                
MR. HENDERSON asked him to describe the graph he was requesting.                                                                
                                                                                                                                
SENATOR COGHILL  clarified that he  was looking for a  graph that                                                               
shows the pre and post-Senate  Bill 91 possession and trafficking                                                               
charges, the  convictions on the  original charges, and  the plea                                                               
bargains. He  recalled discussions about the  felony charges that                                                               
were bargained down to misdemeanors.                                                                                            
                                                                                                                                
MR.  HENDERSON said  getting the  information that  includes both                                                               
the charge and  whether or not it was resolved  at a lower charge                                                               
for both pre and post-Senate Bill  91 will be difficult to get in                                                               
the allotted time but he'd try.                                                                                                 
                                                                                                                                
SENATOR COGHILL  said the bill  goes to  finance and it  could be                                                               
answered there. He recalled that  the Criminal Justice Commission                                                               
discussed  that bargaining  from a  felony to  a misdemeanor  was                                                               
quite  significant pre-Senate  Bill 91.  You  need to  show in  a                                                               
chart how  it was working  before, how  it doesn't work  now, and                                                               
how going back will be better, he said.                                                                                         
                                                                                                                                
CHAIR  SHOWER   asked  Mr.  Henderson   if  he  could   get  that                                                               
information to the committee for Senator Coghill.                                                                               
                                                                                                                                
MR. HENDERSON said yes; it's a  good point. He added that between                                                               
2015  and   2017,  the   Department  of   Law  saw   felony  drug                                                               
prosecutions drop about 70 percent.  In part that was because DOL                                                               
didn't have  the tools to  address some of the  drug trafficking.                                                               
It was also partially due  to reducing felony possession offenses                                                               
to the  misdemeanor level. He  suggested it might be  helpful for                                                               
the committee  to hear Deputy Commissioner  Duxbury describe this                                                               
phenomenon with drug prosecutions.                                                                                              
                                                                                                                                
SENATOR COGHILL  said he'd like to  hear that and how  the felony                                                               
charge for possession helped police get dealers.                                                                                
                                                                                                                                
4:43:10 PM                                                                                                                    
MICHEAL  DUXBURY,  Deputy   Commissioner,  Department  of  Public                                                               
Safety,  Anchorage,   Alaska,  asked   him  to  repeat   the  two                                                               
questions.                                                                                                                      
                                                                                                                                
SENATOR   COGHILL  said   the  discussion   is  about   returning                                                               
possession and trafficking schedule IA  and schedule IIA drugs to                                                               
felony  level  offenses. His  question  is  how many  cases  were                                                               
bargained pre-Senate Bill  91 versus now. He said  he's trying to                                                               
find  out if  the problem  was   the  drug amount  or the  felony                                                               
charge  on  possession and  if  it  was  a  police problem  or  a                                                               
prosecution problem.                                                                                                            
                                                                                                                                
MR. DUXBURY said  that when possession of small  amounts of these                                                               
drugs were no longer felonies,  they found that the small dealers                                                               
weren't interested  in cooperating because the  sanctions weren't                                                               
impactful.  There was  systematic inertia.  Then the  prosecution                                                               
didn't have the  resources to handle the rising  person on person                                                               
and  violent  crimes.   This  all  made  it   difficult  for  law                                                               
enforcement to have an impact on  the amount of drugs coming into                                                               
communities.                                                                                                                    
                                                                                                                                
SENATOR  COGHILL  said he's  come  to  understand that  a  felony                                                               
hanging over a  small user encourages them to  cooperate but he's                                                               
still interested in  looking for ways to help  someone turn their                                                               
life around after they've been charged with a felony.                                                                           
                                                                                                                                
4:48:21 PM                                                                                                                    
MR. DUXBURY  said the  best thing  they can do  for a  small time                                                               
user  is to  get the  person into  some form  of treatment.  When                                                               
somebody is  going to  be charged and  they decide  to cooperate,                                                               
the  negotiations   usually  involve   the  prosecutor   and  the                                                               
investigator whether  it's the local  police or the  troopers. He                                                               
said he  can't gauge what the  impact would be on  the individual                                                               
but DPS is  focused on getting the large  amounts and maintaining                                                               
quality  of life  for the  community. He  restated that  any plea                                                               
negotiations involve  a prosecutor  and pre-Senate Bill  91 there                                                               
was also  the discretion to  target places  to make an  impact on                                                               
the amount of drugs coming into the community.                                                                                  
                                                                                                                                
SENATOR COGHILL said  he wanted it to be very  clear that this is                                                               
charging  people  with  a  felony   to  get  to  people  who  are                                                               
committing felonies.  He agreed that downward  pressure is needed                                                               
but this  disregards those people  who have been  cooperative and                                                               
need help to turn their lives around.                                                                                           
                                                                                                                                
4:52:15 PM                                                                                                                    
SENATOR  MICCICHE said  he understands  what  Senator Coghill  is                                                               
saying and it's one reason he  supported Senate Bill 91, but it's                                                               
not working. He's  talked to the troopers in  his community about                                                               
the drug  house issue  and their  hands are  tied. He  said we're                                                               
also not  thinking about  the user/dealer. He  hopes to  see more                                                               
use of suspended imposition of  sentence to try to negotiate with                                                               
low level first-time users and  help them turn their lives around                                                               
but meanwhile  the carrot won't work  if there isn't a  stick. He                                                               
talked  about the  crime meetings  in his  community and  related                                                               
that the provision  in the disorderly conduct statute  to be able                                                               
to hold someone  was important because disorderly  conduct can be                                                               
a  precursor  to  domestic  violence. He  asked  Mr.  Duxbury  to                                                               
comment  on increasing  the maximum  hold for  disorderly conduct                                                               
from 24 hours to 10 days.                                                                                                       
                                                                                                                                
MR.  DUXBURY  said taking  the  people  who repeatedly  victimize                                                               
others out of circulation for a  few days provides a cooling down                                                               
period that seems to be helpful in breaking the cycle.                                                                          
                                                                                                                                
SENATOR  MICCICHE highlighted  that a  common theme  among people                                                               
who  have  turned  their  lives   around  after  convictions  for                                                               
possession  of small  quantities  of drugs  is  that they  didn't                                                               
realize  how far  they'd  fallen  until they  were  faced with  a                                                               
significant  charge.  That's why  he  believes  in combining  the                                                               
carrot  of  treatment with  the  stick  that's  the threat  of  a                                                               
felony.  He   expressed  hope  that  prosecutors   will  use  the                                                               
suspended imposition of sentence tools on first-time offenders.                                                                 
                                                                                                                                
CHAIR SHOWER commented that without  the tools to get people into                                                               
the system, law enforcement is not able to get help for them.                                                                   
                                                                                                                                
SENATOR COGHILL  added that  the police have  said that  they can                                                               
only pick  up somebody  up and  take them  to jail.  There aren't                                                               
enough treatment  facilities and  certainly not enough  to divert                                                               
someone  the day  they're picked  up. He  stressed that  charging                                                               
somebody for  one thing  to encourage them  to do  something else                                                               
means that  charge will  follow that individual  for the  rest of                                                               
their  life. [Senate  Bill 91]  intended to  avoid that  but what                                                               
happened was  there was no  longer any leverage to  get offenders                                                               
to  change  their behavior.  The  police  feel hamstrung  because                                                               
people bounce  right out if  they go  to jail. He  reiterated the                                                               
caution that "we're charging somebody  something, to do something                                                               
else." He said he wanted  people to understand, "that's why we're                                                               
doing this."                                                                                                                    
                                                                                                                                
4:58:32 PM                                                                                                                    
SENATOR MICCICHE  offered his  perspective that  the only  way to                                                               
get  hold  of  the  problem   is  to  impose  a  consequence  for                                                               
possessing  a small  quantity  of  drugs. If  the  arrest is  for                                                               
possession of  meth, for example, the  arresting officer probably                                                               
won't know how  the person, who may be a  user/dealer, is funding                                                               
their  habit or  if they're  spreading that  habit to  others. If                                                               
they're  spreading the  habit, their  behavior will  never change                                                               
without a substantial consequence. But  if the person really is a                                                               
first timer  who is in  possession of  just a small  quantity, he                                                               
said he  hopes law enforcement  will use the tools  of suspending                                                               
entry and give the person another chance.                                                                                       
                                                                                                                                
SENATOR COGHILL  said the proposed  statute doesn't  provide that                                                               
latitude  but he  does agree  that there  is thievery  associated                                                               
with drug use.                                                                                                                  
                                                                                                                                
CHAIR  SHOWER transitioned  the discussion  by advising  both the                                                               
Department of  Law and  the Department of  Public Safety  that he                                                               
had problems  with some of  the language in Section  27 regarding                                                               
terroristic threats.  He asked  both agencies  to be  prepared to                                                               
speak to that section on Thursday.  He warned that he would "dive                                                               
pretty hard" on the DNA  swabbing and associated personal privacy                                                               
issues.  He also  asked  DOC  if they  had  data  that shows  the                                                               
numbers  of drug  possession felonies  both  pre and  post-Senate                                                               
Bill 91.                                                                                                                        
                                                                                                                                
5:02:47 PM                                                                                                                    
SENATOR MICCICHE said his request  was for clarification that the                                                               
legal marijuana  industry authorized  in AS  17 is  excepted from                                                               
the  increased  penalties  involving a  controlled  substance  in                                                               
Title 11.  He said he  will also ask about  the constitutionality                                                               
of  separating  revoked  licenses  from  suspended  licenses.  If                                                               
that's  not possible,  he  would evaluate  returning  both to  an                                                               
arrestable offense.                                                                                                             
                                                                                                                                
5:04:08 PM                                                                                                                    
CHAIR SHOWER held SB 32 in committee.