03/12/2014 01:30 PM Senate JUDICIARY

        SB 186-CONTROLLED SUBSTANCES ADVISORY COMMITTEE                                                                     
                                                                                                                                
3:02:13 PM                                                                                                                    
CHAIR  COGHILL announced  the consideration  of SB  186. "An  Act                                                               
relating  to the  Controlled  Substances  Advisory Committee  and                                                               
providing for mandatory meetings of  the committee at least twice                                                               
a year." This was the first hearing.                                                                                            
                                                                                                                                
3:02:52 PM                                                                                                                    
SENATOR FRED DYSON, Alaska State Legislature, Juneau, Alaska,                                                                   
sponsor, introduced SB 186 speaking to the following sponsor                                                                    
statement: [Original punctuation provided.]                                                                                     
                                                                                                                                
                                                                                                                                
     SB 186  seeks to bring  the State into  compliance with                                                                    
     current  drug   statutes  established  by   the  Alaska                                                                    
     Legislature  in 1982.  Specifically,  for  the past  32                                                                    
     years  the  State  has violated  the  law  requiring  a                                                                    
     Controlled   Substances   Advisory  Committee   to   be                                                                    
     established   within  the   Department  of   Law.  This                                                                    
     committee  has never  been formed,  and has  never met,                                                                    
     even once, to  carry out its statutory  duties under AS                                                                    
     11.71.110,  or  exercised  its  authority  to  schedule                                                                    
     controlled substances under AS 11.71.120.                                                                                  
                                                                                                                                
     AS  11.71.100  established  the  Controlled  Substances                                                                    
     Advisory  Committee  (CSAC)  within the  Department  of                                                                    
     Law,  and designated  the Attorney  General or  his/her                                                                    
     designee as  the chairman of the  committee. This nine-                                                                    
     member commission  is to be  comprised of  persons that                                                                    
     combined have  a significant  breadth of  experience to                                                                    
     carry  out  its  duties   which  include  advising  the                                                                    
     Governor  on the  appropriateness of  classification of                                                                    
     controlled  substances;  recommending  regulations  for                                                                    
     adoption by the Board  of Pharmacy to prevent excessive                                                                    
     prescription   of   controlled   substances;   evaluate                                                                    
     effectiveness   of   controlled   substance   treatment                                                                    
     programs;    recommend   to    Alaska   Court    System                                                                    
     alternatives   to   prosecution  or   imprisonment   of                                                                    
     offenders who  have no prior criminal  record involving                                                                    
     controlled substance offenses;  and review and evaluate                                                                    
     enforcement policies  and practices of  the Departments                                                                    
     of  Law  and  Public   Safety  with  regard  to  crimes                                                                    
     involving controlled substances.  The CSAC includes the                                                                    
     attorney general  or his designee, the  commissioner of                                                                    
     health  and social  services and  of  public safety,  a                                                                    
     pharmacist,   a   peace   officer,   a   physician,   a                                                                    
     psychiatrist   and  two   more   public  members.   The                                                                    
     committee is required by law to meet twice a year.                                                                         
                                                                                                                                
     Despite  a clear  legislative mandate  for the  CSAC to                                                                    
     provide   meaningful   oversight  of   our   controlled                                                                    
     substance  laws,  and  our  treatment  and  enforcement                                                                    
     policies, this has never happened.  Today, the state of                                                                    
     Alaska  is   reeling  under  an   increasingly  complex                                                                    
     patchwork    of   controlled    substance   laws    and                                                                    
     regulations,   high   rates    of   incarceration   and                                                                    
     overcrowded  prisons,  and  enforcement  policies  that                                                                    
     have  produced  severe  over criminalization  and  high                                                                    
     recidivism of controlled substance offenders.                                                                              
                                                                                                                                
     The  Department  of Law  recently  argued  in State  of                                                                    
     Alaska  vs Patillo  that  the  legislative language  is                                                                    
     "directory" as opposed  to "mandatory", therefore, they                                                                    
     do not  have to  comply with  forming the  committee as                                                                    
     directed by the Legislature.  SB 186 makes it mandatory                                                                    
     the  CSAC carry  out the  duties our  state desperately                                                                    
     needs it to.                                                                                                               
                                                                                                                                
He asked  Ms. Carpeneti if  there was a  record over the  past 32                                                               
years of  a systematic  effort to accomplish  the mission  of the                                                               
CSAC.                                                                                                                           
                                                                                                                                
3:10:24 PM                                                                                                                    
ANNE  CARPENETI, Assistant  Attorney General,  Criminal Division,                                                               
Legal  Services  Section,  Department  of  Law,  Juneau,  Alaska,                                                               
clarified that  the litigation that Senator  Dyson referenced was                                                               
a motion on behalf of a  defendant charged with a drug offense to                                                               
declare all  the drug statutes unconstitutional  because CSAC was                                                               
never formed. The  Department of Law's position was  that all the                                                               
statutes couldn't  be declared unconstitutional just  because the                                                               
advisory committee  wasn't formed. She added  that the Department                                                               
of Law had no objection to  the stronger language put forth in SB
.                                                                                                                            
                                                                                                                                
SENATOR DYSON restated the question.                                                                                            
                                                                                                                                
MS.  CARPENETI  advised  that  DOL  has  trainings  and  district                                                               
attorney meetings every month that  include discussions about how                                                               
the  laws are  working  and  whether they  make  sense under  the                                                               
circumstances. If a statute appears  to be inadequate DOL is able                                                               
change it  by introducing a  bill through the governor.  That has                                                               
been done over the years, but  she couldn't attest that there had                                                               
been a top to bottom review of all the drug laws.                                                                               
                                                                                                                                
SENATOR  DYSON  stated   that  in  his  18-year   tenure  in  the                                                               
legislation   he  had   not  seen   a   single  governor's   bill                                                               
restructuring or rescheduling drugs.                                                                                            
                                                                                                                                
3:13:40 PM                                                                                                                    
CHUCK KOPP, Staff, Senator Fred  Dyson, Alaska State Legislature,                                                               
Juneau,  Alaska, sponsor  of SB  186,  advised that  it would  be                                                               
incongruous for the prosecution to  carry out the duties of CSAC.                                                               
Sec.  11.71.100  provides CSAC  with  a  breadth of  professional                                                               
experience  and  the  duties  outlined   in  Sec.  11.71.110  are                                                               
specific  to  those  professionals. The  legislative  intent  was                                                               
clearly  to  provide  meaningful   oversight  of  the  controlled                                                               
substance laws  and that  hasn't happened.  The result  is severe                                                               
over-criminalization in many areas of  the law. Under current law                                                               
it is a class  C felony to possess any amount  of cocaine that is                                                               
detectible  in a  narcotics  test,  even if  it's  1/1000th of  a                                                               
grain.  By comparison,  it is  also  a class  C felony  to put  a                                                               
person in  serious fear of  their life being imminently  taken by                                                               
pointing  a handgun  at their  head and  discharging it  into the                                                               
wall.                                                                                                                           
                                                                                                                                
MR. KOPP  noted that the packets  contain 20 examples of  class C                                                               
felonies that are equivalent to  simple possession of Schedule IA                                                               
or IIA substances.  The sponsor's point is that if  CSAC had been                                                               
formed, Alaska's drug  laws wouldn't be in the  state they're in.                                                               
This commission is an ideal  tool to address the schizophrenia in                                                               
the system, he said.                                                                                                            
                                                                                                                                
3:18:02 PM                                                                                                                    
SENATOR  DYSON  added that  the  debate  in  1982 was  about  the                                                               
tension between  good treatment and incarceration.  A fiscal note                                                               
was  passed with  the bill  but subsequent  attorney general  and                                                               
governor   budgets   didn't   include   funding.   He   expressed                                                               
disappointment at  the resistance he'd received  from some people                                                               
in the Criminal  Division of the Department of  Law and clarified                                                               
that this did not include Ms. Carpeneti.                                                                                        
                                                                                                                                
3:21:41 PM                                                                                                                    
SENATOR  WIELECHOWSKI  commended the  sponsor  for  the find  and                                                               
highlighted  that more  than 90  percent of  the crimes  that are                                                               
committed in  the state are  substance-abuse related.  He posited                                                               
that having CSAS  in place would have made a  huge difference. He                                                               
asked Ms. Carpeneti how to  move forward because the committee is                                                               
needed today.                                                                                                                   
                                                                                                                                
3:22:49 PM                                                                                                                    
MS. CARPENETI agreed it would be  a valuable tool and admitted to                                                               
surprise  when  the lawsuit  was  filed  and  she looked  at  the                                                               
statutes.                                                                                                                       
                                                                                                                                
SENATOR  WIELECHOWSKI  asked  if  the  legislature  could  expect                                                               
appointments to this commission this session.                                                                                   
                                                                                                                                
MS. CARPENETI said she'd take this back to her superiors.                                                                       
                                                                                                                                
MR. KOPP said  the testimony in House Finance in  1982 was that 1                                                               
in  90  Alaskans were  under  supervision  of the  Department  of                                                               
Correction. The statistics today show  it's 1 in 36 Alaskans. The                                                               
sponsor's data  shows that the primary  incarceration drivers are                                                               
misconduct involving controlled  substance offenses, theft second                                                               
offenses, and petition  to revoke probation filings  on felons on                                                               
parole.                                                                                                                         
                                                                                                                                
CHAIR COGHILL noted the zero fiscal note from DOL.                                                                              
                                                                                                                                
SENATOR DYSON  asked the committee  not to  add a fiscal  note at                                                               
this  point and  suggested that  DOL could  get started  with the                                                               
compounded amount that was put in the budget in 1983.                                                                           
                                                                                                                                
3:27:51 PM                                                                                                                    
MS. CARPENETI  said she believes  that the funds would  have been                                                               
returned to the general fund, but she'd check again.                                                                            
                                                                                                                                
CHAIR COGHILL solicited a motion.                                                                                               
                                                                                                                                
3:28:25 PM                                                                                                                    
SENATOR  MCGUIRE  moved  to  report   SB  186,  Version  A,  from                                                               
committee  with individual  recommendations  and attached  fiscal                                                               
note(s).                                                                                                                        
                                                                                                                                
3:28:41 PM                                                                                                                    
CHAIR COGHILL announced that without  objection, SB 186 will pass                                                               
from the Senate Judiciary Standing Committee.