Legislature(2023 - 2024)GRUENBERG 120
02/27/2023 01:30 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HJR2 | |
| HB38 | |
| HB66 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HJR 2 | TELECONFERENCED | |
| += | HB 38 | TELECONFERENCED | |
| *+ | HB 66 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 66-CONTROLLED SUB.;HOMICIDE;GOOD TIME DEDUC.
2:03:46 PM
CHAIR VANCE announced that the final order of business would be
HOUSE BILL NO. 66, "An Act relating to homicide resulting from
conduct involving controlled substances; relating to the
computation of good time; and providing for an effective date."
2:04:12 PM
JOHN SKIDMORE, Deputy Attorney General, Criminal Division,
Department of Law (DOL), introduced HB 66, on behalf of the
House Rules Standing Committee, sponsor by request of the
governor. He paraphrased the transmittal letter [included in
the committee packet], which read as follows [original
punctuation provided]:
Dear Speaker Tilton:
Under the authority of Article III, Section 18, of the
Alaska Constitution, I am transmitting a bill relating
to penalties for drug distribution and using
controlled substances.
Drugs and drug overdoses have had a devastating effect
on our state. According to the Department of Health's
2021 Drug Overdose Mortality Update, between 2020 and
2021, Alaska experienced the largest percent increase
of drug overdose deaths of any state. In 2021, Alaska
recorded over 100 deaths more than the previous year.
Unfortunately, fentanyl, a highly potent opioid, makes
up a large percentage of these drug related deaths.
Increasingly, those who distribute drugs are mixing
fentanyl with other types of drugs in order to
cultivate addiction and attract buyers. These buyers
may not necessarily know that fentanyl is mixed in
with their drug of choice, increasing the risks
associated with drug use.
This legislation attacks the problem at the point of
distribution, making it second degree murder when a
person distributes or manufactures a controlled
substance and a person dies as a direct result of
ingesting that substance. This legislation further
serves to protect our communities by ensuring
offenders convicted of distributing or manufacturing
drugs will not be subject to early release due to a
"good time" deduction from their sentence. Those who
choose to manufacture or distribute drugs illegally
should be put on notice that there are significant
consequences for the harm they cause.
I urge your prompt and favorable action on this
measure.
2:16:57 PM
KACI SCHROEDER, Assistant Attorney General, Criminal Division,
DOL, on behalf of the House Rules Standing Committee, sponsor by
request of the governor, presented the sectional analysis for HB
66 [included in the committee packet], which read as follows
[original punctuation provided]:
Section 1. This section reclassifies a homicide
resulting from conduct involving controlled substances
from manslaughter to murder in the second degree. A
person is guilty of murder in the second degree under
this theory where the person violates misconduct
involving a controlled substance in the first, second,
third, or fourth degree for a schedule IVA controlled
substance, and a person dies as a result of ingesting
the drugs. The person must knowingly manufacture or
deliver the controlled substance but there is no
required mental state for the death.
Section 2. This section amends computation of good
time to preclude individuals convicted of misconduct
involving a controlled substance in the first, second,
third, and fourth degree from receiving a good time
deduction from their sentence.
Section 3. This section is the repealer section.
Section 4. This section is the applicability section.
This bill will apply to offenses occurring on or after
the effective date.
Section 5. This section establishes the effective date
as July 1, 2023.
CHAIR VANCE invited questions from members of the committee.
2:19:02 PM
REPRESENTATIVE GROH agreed that the rise in fentanyl-induced
deaths was a plague on the state. He inquired about the
presumptive and maximum penalties for murder in the second
degree.
MR. SKIDMORE shared his understanding that second degree murder
carried a mandatory minimum sentence of 20 years with a maximum
penalty of 99 years.
REPRESENTATIVE GROH inquired about the presumptive sentencing.
MR. SKIDMORE explained that murder was different than other
types of felonies in that most felonies were accompanied by a
presumptive term, which could be varied by the presence of
aggravators or mitigators. He corrected a previous
misstatement, clarifying that the mandatory minimum sentencing
for second degree murder was 15 years.
REPRESENTATIVE GROH understood that the punishable act would be
manufacturing or delivery, as opposed to the sale of, [the
controlled substance]. He asked whether that was correct.
MR. SKIDMORE confirmed that his understanding was accurate.
REPRESENTATIVE GROH asked whether "delivery" included gifting of
a drug from one person to another without any compensation.
MR. SKIDMORE answered yes.
REPRESENTATIVE GROH shared his understanding that in some cases,
death occurred as a result of one friend giving a drug to
another friend without the commercial element. He asked whether
that was correct.
MR. SKIDMORE agreed.
2:21:51 PM
REPRESENTATIVE GROH acknowledged the severity of the crimes in
question; nonetheless, he cited the concern that someone could
be charged with murder, which carried a maximum penalty of 99
years in prison, for giving a drug to another person. He asked
Mr. Skidmore to discuss the prosecutorial power associated with
the proposed legislation.
MR. SKIDMORE reflected on several real-world examples, in which
two individuals provided drugs to a friend and were initially
charged with manslaughter. After agreeing to cooperate with law
enforcement, both individuals eventually plead down to the
lower-level offense of misconduct involving a controlled
substance. He cited case law, which indicated that murder in
the second degree carried a typical sentence of 20-30 years;
therefore, he said it was unlikely that a person who distributed
drugs to another person would be charged with a 99-year
sentence. He added that typically speaking, for a penalty
beyond 20-30 years to be imposed, far more egregious conduct or
a significant criminal history would need to be present. He
indicated that prosecutors were interested in going after drug
dealers, as opposed to drug users. He added that prosecutors
had the authority to engage in plea negotiations to get
cooperation from a person in an effort to go after someone else
- known as a "cooperation mitigator" in Alaska Statutes.
2:26:30 PM
REPRESENTATIVE GRAY recalled that Mr. Skidmore had cited five
[manslaughter] charges in 2019, as well as a massive increase in
overdose deaths. In light of the increasing rate of overdose
related deaths, he asked whether there was a corresponding
increase in the number of charges since 2019.
MR. SKIDMORE clarified that he had described five cases that
occurred within a two-year timespan, of which four revolved
around one single overdose death. In 2022, he said, those
figures doubled, as two different cases involving two separate
deaths occurred in that year alone.
REPRESENTATIVE GRAY asked how many of the cases resulted in
convictions.
MR. SKIDMORE said the first five cases resulted in charges. The
four revolving around one overdose death resulted in three
convictions, of which one was for manslaughter, while the other
two were reduced for a lower-level conviction. He stated that
the fifth case [that occurred between 2018-2019] also resulted
in a manslaughter conviction. He declined to provide details on
the additional two cases that were charged in 2022, as they were
active pending litigation.
REPRESENTATIVE GRAY observed that, although overdose rates were
increasing, the number of charges being brought was low. He
asked whether that was a fair characterization.
MR. SKIDMORE conveyed that Representative Gray was accurately
highlighting the difficulty of acquiring adequate evidence in
such cases, shown by the limited number of prosecutions. For
that reason, when evidence can be obtained in these cases, he
argued that drug dealers should be taken off the streets for a
longer period of time, which spoke to the proposal before the
committee for harsher sentencing.
2:30:55 PM
REPRESENTATIVE GRAY shared his understanding that
benzodiazepines were classified as a schedule IVA controlled
substance. Referring to page 2, lines 21-24 of HB 66, which
specifically addressed schedule IVA drugs, he asked what would
happen if a mother gave her daughter a klonopin and the daughter
died from an allergic reaction to ingesting the drug.
MR. SKIDMORE cited AS 11.71.140(c)(29), which expressly listed
fentanyl as a scheduled IA in Alaska. He suspected that
Representative Gray was confusing the federal schedule, in which
fentanyl was a schedule II, with Alaska's drug classification
schedule. In response to the hypothetical scenario, he
indicated that the focus of the proposed legislation was on
elicit street drugs that were manufactured and distributed by
drug cartels and often laced with fentanyl, adding that
prosecutors had no desire to go after people who prescribed
medications. He proceeded to explain that schedule IVA drugs
were included in the bill because they were also being sold
illicitly, and therefore, could be laced with fentanyl. He
directed attention to page 4 of the supporting document, titled
"Alaska Dept of Health Drug Facts (07-25-22)" [included in the
committee packet], which listed the types of narcotics that
resulted in overdose deaths across the state. He indicated that
schedule IVA drugs would not be the primary focus of HB 66
unless they were mixed with something else.
2:36:20 PM
REPRESENTATIVE GRAY asked whether the intent of the bill was to
increase sentencing.
MR. SKIDMORE answered yes.
REPRESENTATIVE GRAY asked whether that would cost the state more
money.
MR. SKIDMORE answered yes.
REPRESENTATIVE GRAY asked whether there would be a fiscal note
associated with that.
MR. SKIDMORE answered yes.
REPRESENTATIVE GRAY inquired about the purpose of "good time."
MR. SKIMORE stated that "good time" referred to mandatory
parole, meaning that if a person was well-behaved while
incarcerated, he/she would be released on mandatory parole after
serving one-third of his/her sentence. In contrast, if that
person was engaged in inappropriate behavior, good time could be
reduced. He added that because good time was statutorily
constructed, Alaska Statutes already set forth different types
of crimes for which someone would be ineligible for mandatory
or "good time"- parole and could only apply for discretionary
parole. He clarified that under HB 66, the distribution of
drugs would be added to the list of crimes for which mandatory
parole was restricted due to the significant increase in
overdose deaths.
2:39:37 PM
REPRESENTATIVE ALLARD asked whether it was illegal to share
prescription drugs.
MR. SKIDMORE answered yes.
REPRESENTATIVE ALLARD asked Mr. Skidmore to provide a scenario
in which it was okay to share prescription drugs.
MR. SKIDMORE said he could not.
REPRESENTATIVE ALLARD asked whether the mom who shared
prescription drugs in the aforementioned scenario posed by
Representative Gray would be treated differently under the law.
MR. SKIDMORE confirmed that the behavior was illegal; however,
he said it was not the type of conduct that prosecutors were
interested in. He suggested that although ill-advised, sharing
prescriptions between family members was common behavior. He
reported that he had yet to see such a case be charged in his 25
years as a prosecutor.
REPRESENTATIVE EASTMAN attempted to clarify whether the intent
of the bill was to strengthen the penalty for current illegal
conduct or make it easier for prosecutors to prosecute.
MR. SKIDMORE conveyed that the intent was to increase
sentencing.
2:42:00 PM
REPRESENTATIVE EASTMAN asked whether the "or" on page 2, line 11
was in the correct place, or whether it should be moved to line
19 [on page 2].
MR. SKIDMORE acknowledged the drafting error. He confirmed that
the "or" in question should be moved to the end of the paragraph
on page 2, line 19.
REPRESENTATIVE EASTMAN asked for the definition of "delivers."
MR. SKIDMORE described "to deliver" by its common meaning,
"giving to someone else."
REPRESENTATIVE EASTMAN asked whether the drug dealer was the
intended target or any/all persons who delivered the drug.
MR. SKIDMORE answered both.
REPRESENTATIVE EASTMAN remarked, "And so, there's not
necessarily any particular intent when you make that delivery
that the person you're delivering it to is going to be the one
ingesting it."
MR. SKIDMORE responded, "That's correct."
REPRESENTATIVE EASTMAN considered a hypothetical example in
which a postal worker delivered a package with a controlled
substance in it. He asked whether that would fall under the
definition of "deliver."
MR. SKIDMORE answered no, because the delivery must have an
associated mens rea, meaning the person must have known that
he/she was providing the controlled substance. For that reason,
unless the postal worker knowingly delivered the controlled
substance, he/she would have no criminal culpability.
REPRESENTATIVE EASTMAN sought to differentiate between knowing
what was in the package or knowing how it would be used.
MR. SKIDMORE stated that knowing what was in the package would
establish the mens rea.
REPRESENTATIVE EASTMAN considered a scenario in which someone
was practicing medicine without a license, and someone died as a
result. He asked whether that person would be prosecuted for
practicing medicine without a license or prosecuted for murder.
MR. SKIDMORE presumed that in the hypothetical, the person
practicing medicine delivered a controlled substance and the
controlled substance caused the death. He confirmed that the
person delivering the controlled substance could be held
accountable, as he/she would not be protected without a valid
license.
REPRESENTATIVE EASTMAN asked whether the physician who was
practicing without a license would be prosecuted for murder
under the current law, or whether HB 66 would change that.
MR. SKIDMORE said the physician would be prosecuted for
manslaughter under current law; however, if HB 66 were to pass,
that person would be prosecuted for second degree murder.
REPRESENTATIVE EASTMAN asked whether a group of friends who
passed a controlled substance from one to another would all be
legally liable for murder in the second degree if the person on
the receiving end were to die as result of ingestion.
MR. SKIDMORE said yes, they could be charged if the mens rea was
established for each friend in the chain of delivery.
2:49:15 PM
REPRESENTATIVE CARPENTER emphasized the seriousness of the
fentanyl crisis. He remarked, "whether the person dies of
ingestion or dies because they crossed the center line and
killed somebody head on, why are we focusing on consumption?"
MR. SKIDMORE briefly discussed the term "proximate cause." In
response to the hypothetical, he speculated that the person who
provided the controlled substance would not be charged with
murder, as the ingestion was not the cause of death. He
explained that the drug would need to a substantial factor in
bringing about the cause of death.
REPRESENTATIVE CARPENTER considered the scenario of a "drug deal
gone bad," during which a person died as a result of gun fire.
He opined that state laws should be structured such that the
person responsible for manufacturing the drug should also be
held responsible, despite not being at the scene of the crime.
MR. SKIDMORE said a "drug deal gone bad" would be prosecuted as
murder in the second degree. He cited AS 11.41.110(a)(3), which
read as follows [original punctuation provided]:
(3) under circumstances not amounting to murder
in the first degree under AS 11.41.100(a)(3), while
acting either alone or with one or more persons, the
person commits or attempts to commit arson in the
first degree, kidnapping, sexual assault in the first
degree, sexual assault in the second degree, sexual
abuse of a minor in the first degree, sexual abuse of
a minor in the second degree, burglary in the first
degree, escape in the first or second degree, robbery
in any degree, or misconduct involving a controlled
substance under AS 11.71.010(a), 11.71.021(a),
11.71.030(a)(2) or (9), or 11.71.040(a)(1) or (2) and,
in the course of or in furtherance of that crime or in
immediate flight from that crime, any person causes
the death of a person other than one of the
participants;
MR. SKIDMORE added that if the person in the hypothetical
scenario was both the drug dealer and the person who engaged in
the shooting, he/she could be charged with distribution and
felony murder.
REPRESENTATIVE CARPENTER clarified his query. He said he was
suggesting that the supplier or manufacturer of the drug should
also be held accountable.
MR. SKIDMORE clarified that Representative Carpenter was
referring to a Racketeer Influenced and Corrupt Organizations
Act (RICO) case, which was a conspiracy charge used by the
federal government to hold everyone involved responsible.
REPRESENTATIVE CARPENTER shared his understanding that if a
person died from ingesting a controlled substance, the bill
would address the chain of custody from the delivery up to the
manufacturer; however, under the "drug deal gone bad" scenario
in which someone was shot, the manufacturer would not be
charged. He sought to differentiate between the two scenarios.
MR. SKIDMORE confirmed that with a felony murder charge, only
those present could be charged.
REPRESENTATIVE CARPENTER asked why a felony murder charge
[involving a "drug deal gone bad"] could only go after those
present if the goal was to get fentanyl off the streets.
MR. SKIDMORE reiterated that the elements of a felony murder
charge required focus on the people who were present for the
crime, whereas manslaughter [or murder in the second degree if
HB 66 were to pass] was associated with delivery that resulted
in ingestion. He added that because the two crimes involved
different elements, different analyses were applied to each.
2:59:11 PM
CHAIR VANCE announced that HB 66 would be held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HJR 2 - Amendment 1 (A.7).pdf |
HJUD 2/27/2023 1:30:00 PM |
HJR 2 |
| HJR 2 - Amendment 2 (A.8).pdf |
HJUD 2/27/2023 1:30:00 PM |
HJR 2 |
| HB 38 - Amendment 1 (A.6).pdf |
HJUD 2/27/2023 1:30:00 PM |
HB 38 |
| Weiss v. State 939 P.2d 380 (Alaska 1997).pdf |
HJUD 2/27/2023 1:30:00 PM |
|
| Forrer v. State 471 P.3d 569 (Alaska 2020).pdf |
HJUD 2/27/2023 1:30:00 PM |
|
| Response to Judiciary Committee.pdf |
HJUD 2/27/2023 1:30:00 PM |
|
| Alaska Dept. of Health Drug Facts (07-25-22).pdf |
HJUD 2/27/2023 1:30:00 PM |
|
| HB 66 - Transmittal Letter.pdf |
HJUD 2/27/2023 1:30:00 PM |
HB 66 |
| HB 66 - v.A.PDF |
HJUD 2/27/2023 1:30:00 PM |
HB 66 |
| HB 66 - Sectional Analysis.pdf |
HJUD 2/27/2023 1:30:00 PM |
HB 66 |
| HB 66 - Highlights Document.pdf |
HJUD 2/27/2023 1:30:00 PM |
HB 66 |