Legislature(2013 - 2014)CAPITOL 120
04/03/2013 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing(s): || Alaska Judicial Council | |
| HB178 | |
| HJR10 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 173 | TELECONFERENCED | |
| *+ | HB 178 | TELECONFERENCED | |
| + | HJR 10 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 178 - RECLASSIFYING CERTAIN DRUG OFFENSES
[Contains brief mention that SB 56 is the Senate companion bill
to HB 178.]
1:09:32 PM
CHAIR KELLER announced that the next order of business would be
HOUSE BILL NO. 178, "An Act relating to certain crimes involving
controlled substances; and providing for an effective date."
1:10:05 PM
REPRESENTATIVE DOUG ISAACSON, Alaska State Legislature, sponsor
of HB 178, noted that SB 56 is the Senate companion bill;
offered a quote from written testimony pertaining to that Senate
companion bill, and some information about the Department of
Corrections (DOC) and its growth in certain inmate populations
and costs; and shared his belief that HB 178 - although
characterized by some as being soft on crime - "allows"
offenders to reform, would reduce Alaska's recidivism rates, and
is compatible with the Department of Corrections' goals.
Characterizing HB 178 as a very important bill, and asserting
that Alaska's existing drug laws have not been effective at
changing behaviors, he said the bill "is motivated by fiscal
responsibility," and offered his understanding that in states
that have already similarly changed their controlled-substance
laws, there has been a decrease in certain inmate populations.
Specifically, HB 178 is proposing to alter the statutes
outlining what constitutes the class C felony crime of
misconduct involving a controlled substance in the fourth
degree, and what constitutes the class A misdemeanor crime of
misconduct involving a controlled substance in the fifth degree,
such that possession [of less than 15 tablets, ampules, or
syrettes containing a schedule IA controlled substance or a
schedule IIA controlled substance, or one or more preparations,
compounds, mixtures, or substances of an aggregate weight of
less than three grams of any schedule IA controlled substance
except for heroin, or any schedule IIA controlled substance
except for lysergic acid diethylamide (LSD),] would be a class A
misdemeanor, rather than a class C felony, unless the person was
previously convicted [two or more times within the preceding
five years of any of the crimes of misconduct involving a
controlled substance in the first through fifth degrees].
REPRESENTATIVE ISAACSON, in conclusion, spoke of some of the
difficulties and restrictions faced by those convicted of
felony-level crimes; indicated a belief that first-time
offenders shouldn't be charged with a felony-level crime, and
that people convicted of felony-level crimes then become
lifelong wards of the state; and opined that HB 178 would
provide a humane, realistic, and practical approach to illegal
drug possession, would benefit offenders, and would save the
state millions of dollars but wouldn't impede law enforcement's
ability to pursue repeat offenders or those who distribute
controlled substances. In response to questions, he also
indicated a belief that people convicted of the crimes of
misconduct involving a controlled substance are not violent,
that possessing only the [aforementioned proposed] amounts of
controlled substances means that the person is not attempting to
distribute, that all proposed statutory changes should be viewed
in terms of addressing problems with the state's correctional
system, and that adoption of HB 178 would assist all offenders
of Alaska's controlled-substance laws regardless of race.
1:25:22 PM
CHARLES KOPP, Staff, Senator Fred Dyson, Alaska State
Legislature, on behalf of Senator Dyson, sponsor of the
aforementioned Senate companion bill, commented on his past work
as a former law enforcement officer, and offered his belief that
HB 178 would "substantially alleviate the negative impact,
disproportionate impact, to Alaska Natives in [Alaska's] prison
system," but would neither interfere with the ability of law
enforcement officers to arrest drug traffickers/distributors,
nor result in any controlled substances being made legal. He,
too, noted that HB 178's proposed changes address repeat
offenders, in that offenders of the bill's proposed crime of
misconduct involving a controlled substance in the fourth degree
who've been previously convicted two or more times within the
preceding five years of any of the crimes of misconduct
involving a controlled substance in the first through fifth
degrees, would be subject to a class C felony.
MR. KOPP - offering a hypothetical example involving an
individual in a remote location possessing a small amount of a
schedule IA or a schedule IIA controlled substance for personal
use in an emergency situation - expressed concern that under
current law, illegal possession of any amount, regardless of how
small the amount, of either a schedule IA controlled substance
or a schedule IIA controlled substance [except for any of the
cathinones listed under AS 11.71.150(e)(11)-(15),] would be a
class C felony. He opined that the legislature should make sure
that Alaska's "criminal law 'aflects' blame-worthy conduct to
the degree that it's classified rather than relying on
discretion within the system to 'pull it down to where what we
would hope it would be charged'"; and relayed his understanding
that HB 178 is supported by the Alaska Mental Health Board
(AMHB) and the Advisory Board on Alcoholism and Drug Abuse
(ABADA), and by [various individuals] involved with the criminal
justice system.
MR. KOPP, too, explained that HB 178 is proposing to alter the
statutes outlining what constitutes the class C felony crime of
misconduct involving a controlled substance in the fourth
degree, and what constitutes the class A misdemeanor crime of
misconduct involving a controlled substance in the fifth degree,
such that possession [of less than 15 tablets, ampules, or
syrettes containing a schedule IA controlled substance or a
schedule IIA controlled substance, or one or more preparations,
compounds, mixtures, or substances of an aggregate weight of
less than three grams of any schedule IA controlled substance
except for heroin, or any schedule IIA controlled substance
except for lysergic acid diethylamide (LSD), would be a class A
misdemeanor, rather than a class C felony]. In conclusion, he
indicated that HB 178 was modeled on Wyoming law, asserted that
that Wyoming law has resulted in Wyoming having crime rates
lower than Alaska has, and commented on some of the difficulties
and restrictions faced by those convicted of felony-level
crimes.
1:31:54 PM
FORREST DUNBAR, Attorney at Law, noted that he's been working
with Representative Isaacson's office and Senator Dyson's
office, and referred to a PowerPoint presentation he'd prepared
illustrating information he'd researched. He offered his
understanding that HB 178 would significantly reduce the State's
costs but would not impede law enforcement officers' ability to
charge distributors with a felony-level crime. He then shared
some of the information he'd gathered regarding the DOC, prison
populations and costs in Alaska and Wyoming, and what can
sometimes occur in court; commented on some of the difficulties
and restrictions faced by those convicted of felony-level
crimes; indicated a belief that people convicted of the crimes
of misconduct involving a controlled substance are not violent,
that altering the statutes as HB 178 proposes would result in
savings of both time and money for the state, that the penalties
for a misdemeanor-level crime are sufficiently severe to provide
offenders with the incentive to seek and complete treatment, and
that the bill wouldn't have a large impact on public safety;
acknowledged that he'd taken certain fiscal projections and
altered them to reflect possible savings to the state as a
result of passage of the bill; and ventured that HB 178 would
reduce Alaska's recidivism rates and [probation/parole officer]
caseloads, particularly in Anchorage.
1:45:25 PM
NEISJE STEINKRUGER, noting that she is a former superior court
judge and prior to that was in private practice and has worked
as both a public defender and as an attorney within the
Department of Law (DOL), observed that in what she referred to
as the state's "tough on crime" system, it's been the trend over
the last 25 years to make a lot of behavior a felony - either
initially or via amendment - as if misdemeanor crimes aren't
considered serious crimes. Felony cases, however, require a lot
more from the criminal justice system than misdemeanor cases,
and at greater cost in terms of personnel, money, time, and jury
pools, particularly in rural Alaska, regardless that [in some
aspects] felony cases in rural Alaska are often treated more
like misdemeanor cases. Nonetheless, when looking at laws
addressing a particular behavior, one of the questions that must
be considered is whether that behavior warrants a felony charge
and its associated greater costs.
MS. STEINKRUGER explained that judges look at the individual
circumstances of each case, and what she found in her experience
is that people who've been charged with possessing a controlled
substance often also have mental health issues, as well as
issues with employment, and thus one of the roles of the court
is to consider what types of treatment would be proper to
provide or arrange for in order to address such issues. She
expressed favor with the legislature's consideration of
[Alaska's controlled-substance laws]; assured the committee that
the criminal justice system does indeed take misdemeanor crimes
seriously; and offered her belief that the penalties,
treatments, and costs associated with felony-level crimes should
be reserved for the worst offenders.
1:54:53 PM
CARMEN GUTIERREZ, Co-chair, Alaska Prisoner Re-entry Task Force,
Criminal Justice Working Group, University of Alaska Anchorage
(UAA) - after mentioning that she used to serve as deputy
commissioner for the Department of Corrections (DOC) - provided
statistics regarding the DOC, its populations, its costs, and
its recidivism rates, to illustrate that Alaskans are not
currently receiving good value for their criminal-justice
dollars; commented on some of the difficulties and restrictions
faced by those convicted of felony-level crimes; offered her
understanding that the court already has the discretionary
authority to order, as a condition of probation, assessment and
subsequent treatment for those convicted of misdemeanor-level
crimes; and indicated a belief that people convicted of the
crimes of misconduct involving a controlled substance are not
violent, that not all people convicted of a crime of misconduct
involving a controlled substance for the first time are addicts,
and that the state's limited treatment resources should be
reserved for those who have demonstrated that they are addicts.
In conclusion, she characterized HB 178 as an important piece of
legislation, and ventured that its proposed changes constitute a
very sound public-safety-minded approach and would address
Alaska's problems with recidivism in a meaningful fashion.
2:09:43 PM
RICHARD ALLEN, Director, Anchorage Office, Office of Public
Advocacy (OPA), Department of Administration (DOA), after
mentioning that prior to working for the OPA, he'd prosecuted
hundreds of felony cases as a prosecutor in Kenai, indicated
that HB 178 would likely have an impact on the OPA and its
clients. He, too, commented on some of the difficulties and
restrictions faced by those convicted of felony-level crimes,
and offered his belief that passage of HB 178 would allow the
OPA to use less experienced and therefore less expensive
attorneys, would save the State of Alaska considerable
resources, would have a positive impact on the lives and
families of OPA clients, would reduce resulting litigation and
associated costs, but likely wouldn't have any negative impact
on public safety.
2:12:10 PM
WALT MONEGAN, President & CEO, Alaska Native Justice Center -
after mentioning that he's a retired law enforcement officer -
offered his belief that passage of the HB 178 would provide for
a more measured response to individuals arrested for possessing
[certain amounts of either a schedule IA or a schedule IIA]
controlled substance, but do so while still providing for
offender accountability; ventured that existing law, rather than
reducing crime, is only creating more criminals, given the
detrimental impact being convicted of a felony can have on one's
life and future; and asked that HB 178 be passed from committee
as a better law for a better society.
2:14:22 PM
ROBIN SMITH called HB 178 an excellent bill, and expressed her
hope that the committee would pass it.
MR. KOPP, in conclusion, characterized HB 178 as a smart justice
solution, one that would positively impact the next generation
of Alaskans in a sustainable fashion.
REPRESENTATIVE FOSTER commented on some of the difficulties and
restrictions faced in rural Alaska by those convicted of felony-
level crimes, and expressed his support for HB 178.
CHAIR KELLER mentioned that representatives from the DOC, the
Scientific Crime Detection Laboratory ("Crime Lab"), the Public
Defender Agency (PDA), and the Division of Alaska State Troopers
were available to answer questions.
2:17:59 PM
RICHARD SVOBODNY, Deputy Attorney General, Central Office,
Criminal Division, Department of Law (DOL), explained that the
DOL has concerns with HB 178 - concerns expressed by himself and
representatives from the Juneau Police Department (JPD), the
Anchorage Police Department (APD), and the Alaska Police
Officers Association (APOA) during hearings on the Senate
companion bill - but is amenable to working during the interim
to alleviate those concerns. For example, although some have
asserted that the bill would result in the statutes addressing
the crime of possessing a small amount of a schedule IA or a
schedule IIA controlled substance becoming equivalent to the
statutes addressing the crime of driving under the influence
(DUI), wherein a third [or subsequent] conviction would be a
felony, there are substantial differences between those DUI
statutes and what the bill is proposing for the controlled-
substance statutes. First, under the DUI statutes, there are
mandatory minimum sentences for a first, second, third, fourth,
fifth, and sixth offense, but the bill isn't proposing any such
sentencing scheme for the controlled-substance statutes.
Second, for a third or subsequent offense to be a felony under
the DUI statutes, the previous convictions would have had to
occur within the preceding ten years, whereas under the bill,
the previous convictions would have had to occur within the
preceding five years; this means that a third or even subsequent
offense would continue to be only a misdemeanor if the previous
convictions occurred more than five years prior. Third, and
most importantly, under the DUI statues, some form of
[assessment/treatment] is required for even a first offense, but
the bill isn't proposing any such requirement for the
controlled-substance statutes.
MR. SVOBODNY surmised that one of the reasons the legislature
made possession of a schedule IA or a schedule IIA controlled
substance a class C felony was because when a person is
convicted of such - even if he/she isn't sentenced to serve any
period of incarceration because it's his/her first offense -
he/she is then subject to probation and thus supervised to
ensure compliance with any treatment requirements. Also, one of
the unintended consequences of making the changes proposed by
the bill would be the removal of any incentive to participate in
a therapeutic court program, because experience garnered through
the Anchorage Wellness Felony Drug Court and the Bethel
Therapeutic Court, for example, shows that when people [arrested
for misconduct involving a controlled substance crimes] are
given the choice of participating in a therapeutic court
program, they prefer to instead take their chances in regular
court. Should the committee choose to go ahead with the changes
proposed by the bill, the committee may wish to address this
unintended consequence, he suggested. In response to a
question, he ventured that perhaps the people are being advised
by their defense attorneys to eschew therapeutic court because
the requirements of such a program, generally lasting 18 months,
can be difficult to comply with.
2:28:15 PM
MR. SVOBODNY, with regard to some of the DOC's statistics,
pointed out that those illustrating an increase in the
populations of offenders convicted of the class C felony crime
of misconduct involving a controlled substance in the fourth
degree also include a lot of people who were initially charged
with a class B felony or a class A felony controlled substance
crime but who then entered into a plea agreement for the lesser
charge. Furthermore, although prosecutors are currently willing
to reduce a class A felony charge down to a class C felony
charge, for example, they would be unwilling to reduce a class A
felony charge all the way down to a class A misdemeanor charge.
Another unintended consequence of the changes proposed by the
bill would be an increase in the number of what he referred to
as "bifurcated trials" that would be necessary, because the
courts have held that such are required when a particular
offense is dependent upon previous convictions. Furthermore,
because the language in the bill specifies that those previous
convictions could be based on another jurisdiction's laws or
ordinances with elements "similar" to those outlined in
AS 11.71.010 - AS 11.71.050, the issue of whether the elements
really are similar must then also be litigated in each case.
MR. SVOBODNY indicated that there is also a concern regarding
the proposed threshold amount for LSD - the schedule IIA
controlled substance outlined in AS 11.71.150(b)(12) - because
it could be difficult to determine just what amount of LSD is
involved in any given situation depending on the delivery
mechanism used - blotter paper and Jell-O shots being a couple
of examples of such; the bill should therefore also include some
way of addressing that issue. Furthermore, although the bill
stipulates amounts for which there will be a presumption that
the controlled substance in question is not intended for
distribution, depending on the particular controlled substance,
the proposed amounts may not really be what the legislature
wants to consider as being possessed just for one's personal
use, particularly given the very high retail value of even very
small amounts of certain schedule IA and schedule IIA controlled
substances.
2:33:18 PM
MR. SVOBODNY, acknowledging that the bill's proposed changes
constitute a public policy determination for the legislature to
make, relayed in conclusion that his comments merely highlight
possible unintended consequences of the bill and areas of the
bill that could be improved. In response to a question
regarding the aforementioned hypothetical example proffered by
Mr. Kopp involving an individual in a remote location possessing
a small amount of a schedule IA or a schedule IIA controlled
substance for personal use in an emergency situation,
Mr. Svobodny said he knows of no one who's been in such a
situation who's ever been charged with the class C felony crime
of misconduct involving a controlled substance in the fourth
degree, and relayed that after a brief search of existing
statute, he was unable to find anything addressing the
expiration dates on prescribed medications.
[HB 178 was held over.]