Legislature(2013 - 2014)CAPITOL 120
04/08/2013 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB56 | |
| HB57 | |
| HB140 | |
| HB54 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 34 | TELECONFERENCED | |
| += | HB 140 | TELECONFERENCED | |
| += | HB 57 | TELECONFERENCED | |
| + | SB 56 | TELECONFERENCED | |
| + | HB 54 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 56-RECLASSIFYING CERTAIN DRUG OFFENSES
1:12:42 PM
CHAIR KELLER announced that the first order of business would be
CS FOR SENATE BILL NO. 56(JUD), "An Act relating to certain
crimes involving controlled substances; and providing for an
effective date."
CHAIR KELLER noted that SB 56 is the companion legislation to
HB 178, which has already been heard in the House Judiciary
Standing Committee. He related his desire to move SB 56.
1:14:18 PM
CHUCK KOPP, Staff, Senator Fred Dyson, Alaska State Legislature,
speaking on behalf of the sponsor of CSSB 56(JUD), informed the
committee that the Department of Law (DOL) had expressed concern
that the five-year look-back period for a person found in
possession of a drug was too short for those with two strikes
prior to a felony charge. Therefore, [the amendment labeled 28-
LS0355\C.6, Strasbaugh, 4/5/13] would lengthen the period to
seven years. He related that the return to seven years complies
with the intent of the sponsor and provides more time for a
defendant to seek treatment and rehabilitation. The amendment
labeled 28-LS0355\C.6, Strasbaugh, 4/5/13, read:
Page 2, line 2:
Delete "five"
Insert "seven"
MR. KOPP then explained that the amendment [labeled 28-
LS0355\C.7, Strasbaugh, 4/5/13] would require screening,
evaluation, and treatment - if necessary - for a defendant
convicted of misconduct involving a controlled substance in the
fifth degree. The sponsor believes the aforementioned would
comport with the intention of CSSB 56(JUD), which is to refer
those with a drug addiction to treatment. The proposed
amendment, he opined, clearly provides direction to the court
that anyone picked up for drug possession, as CSSB 56(JUD)
addresses, will be referred to treatment. Furthermore, if it's
determined after the initial screening that the treatment is
necessary, then treatment will follow. The amendment labeled
28-LS0355\C.7, Strasbaugh, 4/5/13, read:
Page 5, following line 15:
Insert a new bill section to read:
"* Sec. 3. AS 12.55.135 is amended by adding a new
subsection to read:
(l) A defendant convicted of misconduct involving
a controlled substance in the fifth degree shall be
ordered to satisfy the screening, evaluation,
referral, and program requirements of an alcohol
safety action or drug abuse evaluation program, if an
alcohol safety action or drug abuse evaluation program
is available in the community where the person
resides, or of a private or public treatment facility
approved by the Department of Health and Social
Services under AS 47.37 to make referrals for
rehabilitative treatment or to provide rehabilitative
treatment."
Renumber the following bill sections accordingly.
1:19:09 PM
REPRESENTATIVE MILLETT inquired as to whether these changes
would lower the tolerance for date rape drugs. She stated that
she didn't want to create a situation that would make it easier
to rape women and not be prosecuted when the drugs are in their
possession.
MR. KOPP clarified that CSSB 56(JUD) does not address the date
rape drug, Rohypnol, which is a schedule IV drug. He pointed
out that there are hundreds of drugs that can be used for
nefarious reasons and the number one date rape drug in the world
is alcohol. However, he related that during his 23 years of law
enforcement experience, he saw only alcohol and Rohypnol once
being used to commit [rape].
REPRESENTATIVE MILLETT, drawing from experiences her children
related to her regarding Rohypnol use to commit nefarious acts,
maintained concern that the legislation would lower the
standards. With regard to alcohol being the number one date
rape drug, she highlighted that it's someone's choice to drink.
MR. KOPP assured the committee that [even with CSSB 56(JUD)]
when one is charged with sexual assault in the first degree,
whether or not the defendant caught with the first possession of
this drug would be a misdemeanor or not has nothing to do with
the unclassified felony with which the defendant will be
charged. Furthermore, most of the drugs listed in this
legislation have legitimate uses, although they can be misused.
He noted that the public defender and the director of the Office
of Public Advocacy (OPA) could speak more on this issue as they
have dealt with thousands charged with these types of acts.
1:23:43 PM
REPRESENTATIVE MILLETT then inquired as to whether possession
[of the controlled substances listed in CSSB 56(JUD)] by [a
defendant] in a rape case would be considered a mitigating
factor if convicted.
MR. KOPP deferred to the public defender and the director of
OPA.
1:24:21 PM
REPRESENTATIVE LEDOUX said that her concern isn't regarding the
defendant in a rape case rather her concern is regarding a
situation in which someone has the [date rape] drug in their
possession because they are thinking of using it.
MR. KOPP emphasized that there are a number of chemicals that
can be misused for the purpose [of rape], which is why the focus
is only on criminal acts and behaviors.
1:25:24 PM
RICK ALLEN, Director, Office of Public Advocacy (OPA),
Department of Administration (DOA), began by informing the
committee that he can speak from experience as a prosecutor in
Palmer for almost eight years, during which time he prosecuted
hundreds of felony cases, after which he became a public
advocate. With regard to Rohypnol, he told the committee that
although it's illegal in the United States it's still prescribed
in locations in Latin America, such as Mexico, and Europe.
Although it sometimes is found in the U.S., he couldn't recall a
single Rohypnol case that was ever prosecuted in the Matanuska-
Susitna Valley. Furthermore, he couldn't even remember hearing
of any such cases in Alaska. The drug Rohypnol is similar to
valium in that it's an anti-anxiety drug. Rohypnol is a
schedule IV drug. He reiterated earlier testimony that SB 56
and HB 178 don't address schedule IV drugs.
1:27:02 PM
REPRESENTATIVE PRUITT expressed concern with anyone having any
amount of the types of drugs typically used [in nefarious
situations such as rape]. Therefore, he indicated hesitation
moving forward [with the legislation]. He said he's not yet
comfortable with the legislation's proposed changes. Although
he wasn't comfortable with allowing individuals to possess small
amounts of controlled substances as addictive as
methamphetamines and other drugs in the categories in the
legislation, he wasn't "a fan" of such an individual being a
felon for 10 years. Representative Pruitt inquired as to
whether the [legislation] is headed in the appropriate direction
or is it part of a larger discussion that should be held
regarding overall sentencing and existing mechanisms.
1:30:13 PM
MR. KOPP reiterated that this legislation has nothing to do with
date rape drugs. "That is a red herring," he stressed. He
further stressed that nothing in the legislation makes a drug
legal. Furthermore, the legislation doesn't decriminalize
anything. The legislation recognizes that current law doesn't
provide an individual caught for simple drug possession an
opportunity to participate in reform - as is provided for those
convicted with driving under the influence (DUI), misdemeanor
assault, and misdemeanor theft - rather than house them for
$54,000 per year and have the felony label keep the offender on
public assistance for 10 years after release. He highlighted
that domestic violence, alcoholism, and recidivism rates
decrease for those who can obtain a job. Therefore, family
units have a much better chance of staying together. Mr. Kopp
then directed attention to a Pew Center report that relates the
vast majority of the nation, including conservatives, [agree]
with the approach proposed by the legislation. The Pew Center
has authored several prominent studies that have confirmed that
the states experiencing progress that is actual reductions in
recidivism are states that are going in the direction [proposed
by SB 56].
1:35:09 PM
QUINLAN STEINER, Director, Public Defender Agency, Department of
Administration, regarding date rape drugs, related that in the
last 15 years he didn't recall any prosecutions for drugs used
in date rape situations. He offered his understanding that the
core of CSSB 56(JUD) addresses simple possession of recreational
drugs and drug use and places the penalty at a misdemeanor,
which is a significant penalty. For a misdemeanor one faces up
to a year in jail and up to a $10,000 fine. [The changes
embodied in CSSB 56(JUD)] are important because they allow for
the Alcohol Safety Awareness Program (ASAP) screening, which
allows a neutral individual to evaluate whether an individual
has an addiction or has made an error in judgment in terms of
determining what is necessary to divert them. Therefore, the
proposed change in statute allows individuals to take personal
responsibility for their decisions and actions, which could've
been a youthful indiscretion. The change, he opined, will have
a profound impact on juvenile, younger offenders. A felony for
life has a tremendous impact on one's ability to attend college
and obtain work in many different fields, whereas a misdemeanor
will allow the offender to take responsibility and divert their
path. For instance, the vast majority of individuals who
receive a DUI never receive a second DUI, and an even smaller
amount receive a third DUI. Those receiving a third DUI tend to
repeat, which is the point at which the felony conviction,
increased supervision, and penalties is directed. With
recreational drugs, one can assume that a third-time offender is
dealing with a significant problem requiring more supervision.
1:38:29 PM
REPRESENTATIVE PRUITT asked whether the [public defender's
office] has the ability to select with what an individual is
going to be charged.
MR. STEINER explained that the prosecution is the entity that
determines what charge with which to proceed. If an individual
is in possession of a controlled substance set at a felony
level, the prosecution proceeds on a felony. With regard to
entering into a plea bargain and reducing the charge, it's up to
the state to reduce a charge in exchange for a plea with jail
time and other conditions and the client would have to agree to
it. With plea bargaining in these simple possession cases, one
of the problems is disparity in jurisdictions and prosecutors.
This legislation would level the playing field since individuals
with one or two simple possessions would have the opportunity to
take responsibility and correct their behavior prior to being
supervised under felony probation.
1:41:57 PM
REPRESENTATIVE LYNN mentioned that he has reservations about
CSSB 56(JUD), although the goals of it are good. He asked
whether the legislation achieves the goal of decreasing prison
populations. He then questioned whether it would be appropriate
to include a 10-year sunset to ensure that the legislation
accomplishes the goals.
MR. KOPP reiterated that other states have implemented [similar
changes]. In fact, the conservative State of Wyoming, after
which Alaska's law is modeled, has a lower violent crime and
property crime rate than Alaska. Furthermore, Alaska's as well
as the nation's current approach [for simple possession of
controlled substances] illustrates that incarceration is not the
way out of the drug problem. He recalled that Alaska's attorney
general, speaking before the Senate Finance Committee, said the
state's laws aren't working that is the current policy and
approach isn't resolving the issues.
1:44:35 PM
PEGGY BROWN, Executive Director, Alaska Network on Domestic
Violence and Sexual Assault (ANDVSA), expressed concern that
CSSB 56(JUD) would indeed lower the standard for [date rape
drugs]. She related that the National Drug Intelligence Center
(NDIC) reports that in the U.S. gamma-hydroxybutanoic acid (GHB)
has now surpassed Rohypnol as the substance most commonly used
in drug facilitated sexual assault. The NDIC report attributes
the aforementioned to the likelihood that GHB is much more
easily available, cheaper, and leaves the body more quickly.
Ms. Brown highlighted that Alaska is a state that has two and a
half times the national average in child sexual assault. These
are drugs, more appropriately referred to as "predator" drugs,
which can be used in various degrees to incapacitate and
paralyze people. She then requested that the committee closely
review CSSB 56(JUD) in order to ensure that it isn't
declassifying certain drugs that are predator drug components
and maintain that while reducing the costs of prison and
incarcerations. Noting that her brother is a former warden for
a prison in Louisiana, she said she understands the concern [of
the cost of prison and incarceration]. Ms. Brown acknowledged
that she didn't have any answers for the committee, but offered
that a larger discussion, particularly regarding date
rape/predator drugs, [may be necessary].
1:48:39 PM
CHAIR KELLER, upon determining no one else wished to testify,
closed public testimony on CSSB 56(JUD). He then requested that
the committee address the two amendments provided to it.
1:49:46 PM
REPRESENTATIVE PRUITT asked whether the proposal in this
legislation removes a tool from prosecutors.
1:50:16 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), in response
to questions, echoed earlier testimony that in Anchorage first
offense possession of schedule I or IIA drugs are routinely
reduced to misdemeanors. Therefore, that's definitely a tool.
She then informed the committee that GHB is a schedule IA
controlled substance.
1:51:04 PM
REPRESENTATIVE LEDOUX asked whether any of the drugs referred to
in CSSB 56(JUD) would be referred to as date rape/predator
drugs.
MS. CARPENETI offered her understanding from Ms. Brown and a
sexual assault nurse that GHB, gamma-valerolactone 4-pentanolide
(GVL), and 1,4 butanediol (BD) are all being used as date rape
drugs. However, the nurse wasn't familiar with gamma
hydroxyvalerate (GHV). She opined that the difficulty with
these date rate drugs is that they leave the body very quickly,
which she attributed to the lack of cases being brought forth.
This legislation would reduce possession of date rape/predator
drugs from a felony to a misdemeanor.
1:52:52 PM
REPRESENTATIVE PRUITT inquired as to the result of removing
schedule IA, which includes the date rape drug, from the
legislation. He then requested an estimation of how many cases
involve [controlled substances] in schedule IA and schedule IIA.
He questioned whether it's appropriate to include some of the
worst controlled substances in schedule IA or [controlled
substances] in a lesser category.
MS. CARPENETI answered that these are policy decisions for the
committee to make. Although the sponsor of the legislation has
great intentions, there may be unintended consequences of a
blanket change that makes possession of schedule IA controlled
substances for the first and second offense a class A
misdemeanor. One of the concerns is with the date rape drug,
which she didn't view as a red herring. In fact, she stated
that the concern with the date rape drug should be considered.
REPRESENTATIVE PRUITT inquired as to how many cases there have
been [in which a first offense of a class A] felony was [not
prosecuted as a felony].
MS. CARPENETI responded that she didn't know and would have to
determine whether such information is available. She then
related that the information available in this realm is fairly
archaic.
REPRESENTATIVE LEDOUX questioned whether the legislation could
be changed such that it could refer to schedule I controlled
substances except any predator controlled substances without
specifically naming them.
MS. CARPENETI stated that an exception could be included for
this category of controlled substances that are generally
considered to be date rape drugs.
1:56:33 PM
CHAIR KELLER surmised that there is no legal definition of a
date rape drug.
MS. CARPENETI related her belief that's correct, but pointed out
that what are considered to be date rape drugs are specified in
AS 11.71.140(e)(1)-(2)(A)-(D).
1:57:19 PM
The committee took a brief at-ease.
1:58:22 PM
REPRESENTATIVE MILLETT related her support for the concept of
CSSB 56(JUD), but maintained concern that the proposed change
includes date rape drugs.
MR. KOPP offered that the legislation could be amended to not
apply to date rape drugs. However, he pointed out that
Rohypnol, the date rape drug, is already a misdemeanor in Alaska
statute. This legislation would maintain Rohypnol as a
misdemeanor for initial possession, but the third offense would
become a felony. He noted that it was news to him that use of
GHB has surpassed Rohypnol as a date rape drug. He also
highlighted the testimony of Alaska's public defender and
director of OPA, who between the two of them have many decades
of prosecution and defense experience and who have not dealt
with a date rape drug case. Therefore, he said it's not an
issue.
REPRESENTATIVE MILLETT highlighted that since the date rape
drugs are fast acting that might be why there aren't
prosecutions involving those drugs. Though she supported the
legislation, she maintained concern with the impact in relation
to the date rape drugs. She thanked Mr. Kopp for his
willingness to amend CSSB 56(JUD) in regard to date rape drugs.
MR. KOPP characterized such an amendment as a friendly
amendment.
2:02:44 PM
REPRESENTATIVE GRUENBERG asked whether the word, "shall" on line
5 of the amendment labeled 28-LS0355\C.7, Strasbaugh, 4/5/13,
should instead be changed to "may" and leave it to the
discretion of the court. Drawing from a situation in another
state in which the [requirement to participate in an alcohol
safety action or drug abuse evaluation program] was abused; he
asked whether there has been any abuse of it in Alaska.
MR. ALLEN related that much of the latest literature and best
practices trend toward ordering rehabilitative treatment for
simple possession regardless of whether it's appropriate in a
given case. He confirmed that sending individuals who aren't
addicts to rehabilitative facilities in which they are
surrounded by addicts can do more damage than good. However,
the way this legislation is drafted and the way it works with
the DUI context is that there is an initial screening process.
He said he is very comfortable with the way the aforementioned
process works in Alaska. For example, in the DUI context an
individual with a blood alcohol content (BAC) of 0.085 who has
never been in trouble before and the facts of the case are clear
that the individual had a couple too many glasses of wine with
dinner and shouldn't have driven, the individual will [be
required] to sit through a video and a course on alcohol safety.
In his view, a similar scenario will be followed in the drug
context. While he shared Representative Gruenberg's concern on
a national level, he opined that the ASAP does a fairly good job
of those evaluations.
2:07:07 PM
MR. STEINER noted his concurrence with much of Mr. Allen's
response. However, he highlighted that independence is one of
the keys to the success of the screening approach. Therefore,
the screeners need to be professionals who aren't associated
with particular programs in order to make an independent
recommendation. In Anchorage, there is a good reputation for
the independent screening process such that the recommendations
are consistent with the facts of the case and the individuals.
He remarked that compulsory language is helpful if there isn't
independence or to ensure against the possibility of abuse.
MS. CARPENETI clarified that the mandatory language, the
"shall", only pertains to evaluations not treatment. Without
the evaluation of those convicted of possession of serious drugs
covered by CSSB 56(JUD), it potentially leaves these individuals
without supervision. Therefore, the mandatory evaluation is
appropriate, she posited.
CHAIR KELLER announced that CSSB 56(JUD) would be set aside in
order to allow the sponsor time to address members' concerns.
| Document Name | Date/Time | Subjects |
|---|---|---|
| CSHB 34 ver. O Sponsor Statement.pdf |
HJUD 4/8/2013 1:00:00 PM |
HB 34 |
| CSHB 34 ver. O Sectional.pdf |
HJUD 4/8/2013 1:00:00 PM |
HB 34 |
| CSHB 34 Explanation of Changes.pdf |
HJUD 4/8/2013 1:00:00 PM |
HB 34 |
| CSHB 34 ver. O.pdf |
HJUD 4/8/2013 1:00:00 PM |
HB 34 |
| CSSSHB 54 Sponsor Statement.pdf |
HJUD 4/8/2013 1:00:00 PM |
HB 54 |
| CSSSHB 54 Sectional Analysis.pdf |
HJUD 4/8/2013 1:00:00 PM |
HB 54 |
| CSSSHB 54 (HSS) Summary of Changes SSHB 54 to CSHB 54 version R.pdf |
HJUD 4/8/2013 1:00:00 PM |
HB 54 |
| CSSSHB 54 (HSS) Ver. I.pdf |
HJUD 4/8/2013 1:00:00 PM |
HB 54 |
| SSHB 54 Version P.pdf |
HJUD 4/8/2013 1:00:00 PM |
HB 54 |
| HB 54 Version N.pdf |
HJUD 4/8/2013 1:00:00 PM |
HB 54 |
| HB 54 Fiscal Note-HSS.pdf |
HJUD 4/8/2013 1:00:00 PM |
HB 54 |
| CSSSHB 54 Supporting Document-OCS Frontline Turnover Rate.pdf |
HJUD 4/8/2013 1:00:00 PM |
HB 54 |
| CSSSHB 54 Letter of Support-Presbyterian Hospitality House.pdf |
HJUD 4/8/2013 1:00:00 PM |
HB 54 |
| CSSSHB 54 Letter of Support-Jennifer Payton.pdf |
HJUD 4/8/2013 1:00:00 PM |
HB 54 |
| HB 57 Proposed Amendment O.1.pdf |
HJUD 4/8/2013 1:00:00 PM |
HB 57 |
| 2- SB 56 Sponsor Statement.pdf |
HJUD 4/8/2013 1:00:00 PM SFIN 3/18/2013 9:00:00 AM |
SB 56 |
| 4- CSSB 56(JUD) Section Analysis.pdf |
HJUD 4/8/2013 1:00:00 PM SFIN 3/18/2013 9:00:00 AM |
SB 56 |
| 6 SB56 - Summary of Changes.pdf |
HJUD 4/8/2013 1:00:00 PM SFIN 3/18/2013 9:00:00 AM |
SB 56 |
| CSSB 56 (JUD) Amendment C.7.pdf |
HJUD 4/8/2013 1:00:00 PM |
SB 56 |
| CSSB 56 (JUD) Amendment C.6.pdf |
HJUD 4/8/2013 1:00:00 PM |
SB 56 |
| SB 56 Supporting Document-FBKS Newsminer Article.pdf |
HJUD 4/8/2013 1:00:00 PM |
SB 56 |
| SB 56 Letter of Support-Mike Moore.pdf |
HJUD 4/8/2013 1:00:00 PM |
SB 56 |
| SB 56 Letter of Support-ACLU.pdf |
HJUD 4/3/2013 1:00:00 PM HJUD 4/8/2013 1:00:00 PM |
SB 56 |
| HB 140 Letter of Support-AK Chamber of Commerce.pdf |
HJUD 4/8/2013 1:00:00 PM |
HB 140 |
| CSHB 57 Proposed Amendment O.1.pdf |
HJUD 4/8/2013 1:00:00 PM |
HB 57 |