Legislature(2021 - 2022)BUTROVICH 205
04/06/2022 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB207 | |
| SB229 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 229 | TELECONFERENCED | |
| += | SB 207 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
SB 207-ACCESS TO MARIJUANA CONVICTION RECORDS
1:38:51 PM
CHAIR HOLLAND announced the consideration of SENATE BILL NO. 207
"An Act restricting the release of certain records of
convictions; and providing for an effective date."
[CSSB 207(STA) was before the committee.]
1:39:33 PM
CLAIRE GROSS, Staff, Representative Jonathan Kreiss-Tomkins,
Alaska State Legislature, Juneau, Alaska, explained that
Representative Kreiss-Tomkins sponsored the companion bill. She
said one portion of the bill pertains to the Alaska Court System
relating to the publicly-available website CourtView for
accessing records. The other provision in the bill relates to
background checks conducted by the Department of Public Safety
for potential employees. The goal is to address the two main
ways that employers and members of the public access criminal
justice information.
1:41:05 PM
CHAIR HOLLAND noted that Senator Shower joined the meeting via
teleconference.
1:41:34 PM
SENATOR SHOWER stated the intent of SB 207 is to remove
marijuana convictions from CourtView. He explained that people
reentering society after being convicted for marijuana-related
offenses often have difficulty obtaining employment. Alaska
legalized possession of personal use marijuana, which he did not
support. However, it is the law. He estimated approximately 700
people would benefit from SB 207 because CourtView would no
longer reflect their marijuana convictions. He indicated the
goal is to help those people become productive members of
society by reducing their struggles to obtain good jobs. He
noted that when the concept for the bill was first presented,
the bill included convictions for other offenses, but the bill
currently addresses only marijuana convictions.
1:43:25 PM
SENATOR HUGHES acknowledged that personal use of marijuana is
legal. However, when these individuals were convicted, they were
breaking the law. She said she struggles with this based on
principle because breaking the law shows something about the
person. She acknowledged that these convictions might prevent
someone from employment, but she wondered how this bill
reconciles that these individual broke the law.
1:44:45 PM
SENATOR SHOWER responded that during prohibition many people
drank alcohol in speakeasys even though it was illegal. As times
change and laws change, it is important to note the precedent
and most of these convictions were low-level offenses. The
legislature can decide if these offenders should be punished for
the rest of their lives, erecting barriers to employment, or if
the committee wants them to be reintegrated into society after
serving their time. He said he did not support removing the
conviction from CourtView if these offenders were arrested for
other crimes besides possession of marijuana, such as domestic
violence or selling drugs.
1:47:15 PM
SENATOR HUGHES asked whether the court system could remove a
single marijuana conviction from CourtView for those with
multiple convictions in the same case. She clarified that the
court system would not remove the conviction from the person's
record; however, the conviction would not appear in CourtView.
She further asked for what types of background checks marijuana
convictions would appear; for example, would DPS have access to
the information if the person applied to become a police
officer.
SENATOR SHOWER responded that the records would still exist and
be available for those seeking a security clearance or
employment. Although the court system would not show the
criminal record in CourtView, it may prevent a person from
getting a top-secret clearance.
1:49:34 PM
CHAIR HOLLAND recalled the second question was whether a certain
portion of the record could be stricken from CourtView if a
person was convicted.
MS. GROSS responded that CourtView requires either all
convictions or no convictions be hidden from CourtView. People
who had multiple convictions in the same case would not be
eligible for hidden records.
1:50:30 PM
SENATOR KIEHL stated he had a slightly different perception on
the state of the law in Alaska prior to the 2014 voter
initiative. He related his understanding that the Ravin decision
found that possession and use of small amounts of marijuana was
constitutionally protected under the right to privacy.
1:51:29 PM
SENATOR SHOWER agreed that Senator Kiehl was correct about the
Ravin v. State decision. He asked staff to describe how that
ties together with the federal government's marijuana laws.
MS. GROSS deferred to Kaci Schroeder to respond.
CHAIR HOLLAND asked for the status of the laws regarding
marijuana possession before 2014.
1:52:41 PM
SENATOR KIEHL wondered specifically about the amount covered
under AS 11.71.060.
1:52:53 PM
KACI SCHROEDER, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law, Juneau, Alaska,
agreed that the Ravin decision permitted small quantities of
personal use under the privacy clause. However, the court
deferred to the legislature to define a small amount for
personal use. She stated that this amount had changed several
times over the years. In 2014, the people approved by initiative
up to an ounce of marijuana as an acceptable amount for personal
use.
1:53:40 PM
CHAIR HOLLAND asked whether an allowable quantity of marijuana
was parts of an ounce.
MS. SCHROEDER recalled a subsequent [US Court of Appeals] case,
Noy v. State, also addressed marijuana, but she was unsure of
the amount. She recalled since 1975, the allowable amount of
marijuana in possession has fluctuated, but the legislature and
the courts disagree on those amounts.
1:54:17 PM
SENATOR KIEHL agreed it was unclear.
1:54:52 PM
MS. GROSS stated that the Alaska Court System and Department of
Public Safety (DPS) disagreed on the number of offenders
affected by the bill, as reflected in their fiscal notes. The
Alaska Court System estimated approximately 700 Alaskans would
be affected. DPS believes the figures would be closer to 8,000.
She explained that the discrepancy was due to how each agency
stores information and which statutes would apply. DPS uses the
Alaska Public Safety Information Network (APSIN), which the
public cannot access.
MS. GROSS explained that the first half of the bill addresses
individuals convicted of minor marijuana would make confidential
the records of individuals who have been convicted of minor
marijuana crimes and were not charged with any other crimes in
the same incident. These records would automatically be removed
from CourtView retroactively. Further, these records could also
be removed from some background checks administered by the
Department of Public Safety at the request of the convicted
individual.
MS. GROSS explained that the court system would automatically
remove the conviction for possession of personal use marijuana
from CourtView retroactively.
1:57:21 PM
MS. GROSS stated that DPS would require a petition process to
shield their personal use marijuana conviction from CourtView.
The fiscal note reflects that one or two temporary positions
would review all marijuana convictions. Still, the department
would process any petitions to shield conviction records from
CourtView on an ongoing basis. She stated that most people
seeking background checks, including potential employers, obtain
their information from CourtView by using a kiosk at the
courthouse.
MS. GROSS noted that anyone requiring state licensure would not
benefit from the bill as their criminal history would remain on
CourtView. Further, people can request a full criminal history
report or background check from the Department of Public Safety.
2:01:42 PM
SENATOR HUGHES asked if she referred to professional
occupational licensure.
MS. GROSS answered yes. She noted that law enforcement's statute
is lengthy and includes professionals such as massage
therapists.
SENATOR HUGHES related her understanding that even janitors
working in facilities with vulnerable people are subject to more
scrutiny. She asked whether the marijuana convictions would be
available for those positions.
MS. GROSS answered yes.
2:03:17 PM
SENATOR HUGHES asked whether an employer could go into the
courthouse to obtain information.
MS. GROSS answered yes; the person would need to physically go
to the courthouse in person to obtain information and use the
kiosk.
2:03:45 PM
CHAIR HOLLAND asked her to review the sectional analysis for SB
207.
2:03:58 PM
MS. GROSS reviewed the sectional analysis for SB 207. She noted
that half of the legislative intent was removed from the
companion bill since it was somewhat vague and dealt with low-
level crimes.
[Original punctuation provided.]
2:04:01 PM
Section 1: Adds a new section stating the legislative
intent behind this bill.
Section 2: Amends subsection (b)(8) of AS 12.62.160
by adding criminal justice information, for marijuana
possession that meet the requirements laid out in (f)
of this section, to the list of exceptions for the
release of criminal justice information.
Section 3: Adds a new subsection (f) to AS 12.62.160,
which adds new criteria for criminal justice
information that an agency cannot release. This new
section prohibits release of criminal justice
information for convictions under AS 11.71.060 for
less than one ounce of a "schedule VIA" controlled
substance, where the defendant was 21 years or older
at the time of the offense, was not convicted of any
other criminal charges in that same case and has
formally requested that the agency not release these
records.
2:06:02 PM
Section 4: Adds a new section to AS 22.35, stating
that records of criminal charges or convictions that
meet the requirements stated in this section, may not
be published by the court system on a publicly
available website. This applies to criminal justice
information for convictions under AS 11.71.060 for
less than one ounce of a "schedule VIA" controlled
substance, where the defendant was 21 years or older
at the time of the offense and was not convicted of
any other criminal charges in that same case.
Section 5: Adds a new section to uncodified law of
the State of Alaska saying that the Alaska Court
System shall remove court records that meet the
requirements of this bill, retroactively going back
from the effective date of the bill. It also uses the
language "to the extent practicable" to clarify that
the court system will not be legally required to
expend excessive resources or funds to ensure every
single record that meets the requirements of this
bill for removal from court view, is removed.
2:06:59 PM
Section 6: Provides an effective date of January 1,
2023.
2:07:08 PM
SENATOR KIEHL referred to AS 11.71.060, possession of less than
one ounce. He noted that AS 11.71.050 covers things that a
person can do with cannabis, including giving someone less than
an ounce of cannabis or baking them brownies. He asked why gifts
and edibles were not covered in the bill.
2:08:09 PM
MS. GROSS said she was unsure. She reviewed AS 11.71.050, which
read:
(a) Except as authorized in AS 17.30 and AS 17.38, a
person commits the crime of misconduct involving a
controlled substance in the fifth degree if the
person
(1) manufactures or delivers, or possesses with the
intent to manufacture or deliver, one or more
preparations, compounds, mixtures, or substances of
an aggregate weight of less than one ounce containing
a schedule VIA controlled substance;
MS. GROSS read a portion of the personal use of marijuana
statute:
Sec. 17.38.020. Personal use of marijuana.
Notwithstanding any other provision of law, except as
otherwise provided in this chapter, the following
acts, by persons 21 years of age or older, are lawful
and are not criminal or civil offenses under state
law or the law of any political subdivision of the
state or a basis for seizure or forfeiture of assets
under state law;
(1) possessing, using, displaying, purchasing, or
transporting marijuana accessories or one ounce or
less of marijuana;
2:09:22 PM
MS. GROSS stated that she was unaware of any language related to
manufacturing or delivering marijuana. She offered to research
the nuances and report to the committee.
2:10:44 PM
SENATOR HUGHES referred to Sections 3 and 4. She asked how the
bill would affect those 18-20 years of age.
MS. GROSS stated that the sponsor of the companion bill, HB 246,
amended the bill to include 1820 year-old offenders and reduce
the penalty from a class B misdemeanor to a violation and remove
the records from CourtView.
2:11:55 PM
SENATOR HUGHES asked whether marijuana was only legal for those
21 years or older.
MS. GROSS agreed that it mirrored alcohol laws.
2:12:42 PM
SENATOR HUGHES asked if it was a crime for youths 1820 years
old to possess marijuana before the voters passed the
initiative.
MS. GROSS said she was unsure.
2:13:33 PM
MS. SCHROEDER answered that it was a class B misdemeanor, and
there was no change in the penalty when the initiative passed.
SENATOR HUGHES pointed out that these people were now adults.
She was unsure whether this provision would create an equal
protection concern. She wondered if the committee should
consider including youths 1820-years old in the bill.
MS. SCHROEDER explained that the difference is that it is still
a crime for anyone under the age of 21 to possess marijuana
under current law.
2:14:54 PM
SENATOR KIEHL asked whether there were any challenges under
Ravin v. State or Noy v. State that keeps it a crime for 18-20
year olds.
MS. SCHROEDER answered no. She said she was unaware of any court
challenges. She stated that this bill does not impact the
criminal division.
2:15:46 PM
KELLY HOWELL, Special Assistant, Office of the Commissioner,
Department of Public Safety, Anchorage, Alaska, responded that
the department was supportive of the changes proposed in SB 207.
Ms. Purinton oversees the Alaska Public Safety Information
Network used for criminal history background checks.
2:16:22 PM
SENATOR MYERS noted that DPS conducts background checks on a
case-by-case basis.
MS. HOWELL agreed.
SENATOR MYERS asked if some personal information already needed
to be scrubbed.
MS. HOWELL responded that the reports were already formatted and
no additional scrubbing would need to occur.
2:17:33 PM
SENATOR MYERS said he was unsure why the Department of Public
Safety needed additional staff since the department would be
issuing background checks on a case-by-case basis.
MS. HOWELL agreed that it was possible to do so upon request,
but it could create a backlog depending on the number of
individuals coming forward. She indicated that the department
was unsure how many individuals would request this. As Ms. Gross
noted, the court system records and DPS records diverged
significantly. The department identified 8,500 criminal history
records that the bill could impact. Since the department is
unsure how many records may need to be shielded from release,
DPS suggests hiring a temporary person to research the records.
She stated that it might not be simple to identify the record as
applicable to the bill. She highlighted that the legislature
made numerous changes to the law. For example, the department
would need to verify whether someone's conviction under AS
11.71.060 was for less than one ounce of marijuana. Thus, the
department preferred to take a more proactive measure to examine
the records and flag them, so if a person requested to have
their record shielded, it would be a much quicker process.
2:20:08 PM
SENATOR MYERS said he was having a tough time believing the
department needed a person to review 8,500 records spanning
several years. He offered his view that it would be much simpler
to update the records as people requested their conviction not
be posted to CourtView. This will not affect new cases but ones
generated prior to 2014, so as cases were removed from
CourtView, it would result in fewer and fewer over time.
2:21:33 PM
LISA PURINTON, Criminal Records and ID Bureau Chief, Department
of Public Safety, Anchorage, Alaska, agreed that DPS estimates
8,500 records. She stated that before 2006, the state's criminal
history repository lacked statutes. Instead, it used a four-
digit numeric code to reference the criminal history. She
predicted that those cases would take considerable time to
research. The fiscal note reflects the department's plan to
speed up the process for that research. As Ms. Howell mentioned,
the law periodically changed, and the record may not reflect the
amount of marijuana in possession, but it is listed in the
police report.
2:22:52 PM
CHAIR HOLLAND held SB 207 in committee.
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