Legislature(2019 - 2020)SENATE FINANCE 532
05/02/2019 01:30 PM FINANCE
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SENATE BILL NO. 32 "An Act relating to criminal law and procedure; relating to controlled substances; relating to probation; relating to sentencing; relating to reports of involuntary commitment; amending Rule 6, Alaska Rules of Criminal Procedure; and providing for an effective date." Co-Chair von Imhof introduced the bill. 1:33:17 PM BETH GOLDSTEIN, INTERIM PUBLIC DEFENDER (via teleconference), discussed that the American Bar Association recommended amount was used. Four attorneys to handle the caseload. The Department of Law (LAW) support staff positions. She remarked that there was an anticipated increase in new felony drug cases, with the anticipation that there would be approximately 740 new cases based on the rollback and statistics. She assumed that approximately 19 percent would not come to the Public Defender Agency, because either the defendants would not be eligible for appointed counsel or they would have a conflict with the agency. Therefore they would go to the Office of Public Advocacy (OPA) or contracted counsel. She stated that there would be a remaining 600 new felony drug cases that the agency would handle under the legislation. She remarked that the agency used the American Bar Association recommended amount of 150 felony cases per attorney per year to determine what would be needed with respect to the felony drug cases. As a result, there would be four attorney to handle the increased case load. She noted that one additional attorney would be needed to handle the recriminalizing of the driving without a license cases. The department was also seeking five additional support staff positions. She stressed that, currently, the Public Defender office was understaffed with respect to law office assistants and paralegals. She felt that in order to avoid requesting more attorney positions, four new staff were needed for the new drug felony cases and one new staff for the driving cases. 1:35:38 PM Co-Chair von Imhof noted that the review of the fiscal note 8 OMB 1631. She stated that it was approximately $1.4 million a year to handle the new caseload of 600 new cases. Senator Bishop asked if the fiscal note was adequate for the bill. Ms. Goldstein that there would be an updated fiscal note was actually $1.3 million Senator Bishop asked about the new cases ever year. He asked if the cases would all go to trial. He wondered if the state could execute the proper action. Ms. Goldstein responded that it was not anticipated that all the cases would go to trial. She explained that the most drug cases were basic felony cases, but some were more complicated than others. She stated that the American Bar Association determined that a reasonable caseload for a felony-level attorney was 150 cases per year. She explained that, because the cases would move through the system, the agency could handle 600 more cases with four felony-level attorneys. Senator Bishop stated that he would discuss the issue with the Co-chairs. Co-Chair von Imhof corrected the fiscal note 8 amount to $1.3 million. Senator Wielechowski asked about Section 47 and the switch to allow for hearsay evidence to be presented to the Grand Jury. He queried support for that section. Ms. Goldstein responded that she also had concerns about the section. She noted that the cases may take longer without the certified judgements. She stated that the agency did not typically participate in Grand Jury proceedings. She remarked that it may take a little longer to plead out the cases, because there would not be certified judgments from the Grand Jury. Senator Wielechowski asked if there would be an increased fiscal note as a result, or only an increased workload. Ms. Goldstein replied that she believed that it would only slightly increase the workload. Senator Wielechowski asked about Section 29 and a change in time to be served for possession. He understood that the first two offences for simple possession were currently a Class A misdemeanor with no jail time, and the section changed it to a Class C felony with up to five years in jail. Ms. Goldstein agreed. Senator Wielechowski asked about the policy perspective. 1:41:02 PM Ms. Goldstein noted that the directed measure could increase litigation and caseloads. Senator Wielechowski asked how many cases could be expected to be first time possessors of drugs. He noted that the felony provision. Ms. Goldstein responded that the first time cases could not be predicted. She noted that tracking future cases would be easier with new software. She stated that the philosophy that treatment available was necessary. Senator Shower pointed out the analysis. He wondered if a section might be missing. Co-Chair von Imhof wondered whether there was work with the Office of Management and Budget (OMB) administrative director to acquire new fiscal notes. Ms. Goldstein noted that the mistake on the fiscal note was being corrected. Senator Shower stressed that it seemed to be a recurring theme, so wanted to be sure it was correct. 1:44:42 PM Senator Wielechowski expressed concern about the terminology related to possession. He asked about the perspective of the long-term impacts of someone getting a felony arrest. He specifically asked about job, education, and housing opportunities. Ms. Goldstein noted that conviction of a felony had many major ramifications from not being able to vote to getting a job. She noted that there were some ramifications with respect to child custody issues and needed public housing. She reiterated that a felony conviction could put a person behind in many areas of life. Senator Wielechowski stated that the prosecutors understood that possession could be pled down to a misdemeanor. He queried that rational, and the experience about pleading down simple possession. Ms. Goldstein agreed that the felony caused additional issues when compared to a misdemeanor. She stated that the ramifications in life. Senator Wielechowski commented on the argument about a suspended entry of judgment. He queried the percentage of drug possession cases that were dealt with in that manner, and whether it was a reasonable way to deal with future cases. Ms. Goldstein replied that she would provide the numbers. She noted that there were some useful tools that would help people to gain treatment. She noted other components to help succeed. She added that the different challenges to receiving treatment. 1:49:15 PM Senator Micciche asked about incentive to seek treatment. He remarked that someone may not want to seek treatment without a suspended entry of judgment. He felt that issuing a violation would not have a higher incentive for rehabilitation. Ms. Goldstein noted that a person has to want to have the treatment. She stressed that the addictive cycle showed that people regularly try to get sober, but built into the recovery is a failure rate before they can get back into recovery. Senator Micciche stated that the state was at war because of drug related crime. He noted that crimes related to supporting requirement. He stated that the change was a lifesaver. He felt that someone who has 1:51:37 PM Ms. Goldstein believed that the charge versus the conviction. She commented that the obstacles to overcome were, and not everyone who possesses is addicted. Co-Chair von Imhof stated that a specialist regarding mental health and addiction would be presenting to the committee. Senator Hoffman agreed with the chair that another contributing entity might be necessary. He felt that new treatment centers were likely necessary. He stated that the doors could be open by the individuals to seek treatment. The provision might provide false hope. 1:54:52 PM Senator Wilson stated that the without incentive for treatment the facilities do not succeed. He stressed that without the supportive infrastructure there would be to patient incentive. The lingering time can affect. Senator Wielechowski asked about treatment incentive experience as the public defender and punishment. Ms. Goldstein responded that the approach much be holistic, and multiple things were asked of the people that were overwhelming. Senator Bishop wanted to have a difficult conversation about addiction. He thought that the dialog was very important. Co-Chair von Imhof agreed that the holistic approach was very important. She noted that federal funds were available for behavioral health therapy. 1:59:14 PM JAMES STINSON, DIRECTOR, OFFICE OF PUBLIC ADVOCACY, echoed the statements made by Ms. Goldstein. He remarked on the increase in caseload for the legislation. He stated that OPA was requesting $694,700, which equated to three attorneys and two support staff. He believed that was needed to absorb the increase in caseload. Co-Chair von Imhof noted the fiscal note, OMB 43, at approximately $350,000. Mr. Stinson stated that it was incorrect, because it was an older fiscal note. She queried the new fiscal note number. Senator Hoffman replied that it was OMB 694. Senator Bishop asked if the fiscal note was accurate. Mr. Stinson replied that he believed it was accurate. The fiscal note was based on the numbers that were most easily monetized. He noted that there were probably additional costs, that were still uncertain. He felt the money allowed for a distribution to the key areas and offices for the new cases. Senator Bishop asked about the new fiscal note and the elimination of the DNA testing. Mr. Stinson was in agreement. He remarked that there was no anticipated cost increase as a result of the DNA testing, so there would be no impact on the fiscal note. Senator Micciche asked about the contract to staff funding shift. He wondered whether there was work to resolve some of the conflict problems with the Public Defenders Agency. Mr. Stinson replied that the Office of Public Advocacy (OPA) relied on expensive independent contractors. He remarked that there was a proposal to remove $500,000 out of the contractor line, and utilize additional PCNs for attorneys. He noted that the request did not consider SB 32. He stated that OPA was attempting to find efficiencies to bring the taxpayer the best value for their dollar. He noted that contractors were more expensive than inhouse attorneys in almost all circumstances. He stressed that there was an attempt to find a balance, while also being conscious of large overhead with a large amount of employees. 2:04:10 PM Senator Wilson asked about different jurisdictions that were more conflicted out. Mr. Stinson replied that there were localities with higher conflict rates. He shared that Kenai was a smaller community, and remarked that an increase in felony drug prosecutions would result in more codefendants and additional drug cases. He was not completely sure where the positions would be placed geographically, but the positions were based on raw numbers. Senator Wilson requested the rates of the conflicted cases. He remarked that, in Palmer, he may prefer to conflict out as a public defender for the person who had the contract. He felt that it would be a better attorney's office than the Public Defenders Agency. Senator Wielechowski asked about an expired narcotic prescription, and whether that be a crime under this bill. Mr. Stinson replied that, presuming it would meet the new definition, it would be the zero to two year presumptive range up to five years. Senator Wielechowski wondered whether it would be a felony. Mr. Stinson replied in the affirmative, but would further examine the exact answer. Senator Wielechowski queried was considered a Class 6A controlled substance. He wondered if marijuana was in that class. 2:06:52 PM Mr. Stinson asked for the location within the bill Senator Wielechowski stated that he was looking at page 19, lines 22-24. Co-Chair von Imhof wondered whether this question was better for a different testifier. Senator Wielechowski agreed. Co-Chair von Imhof stated that Mr. Skidmore might be better to provide the requested information. Mr. Stinson deferred to Mr. Skidmore. 2:08:19 PM Co-Chair von Imhof recalled a presentation about Fentanyl. She noted that any weight of Fentanyl seemed almost deadly, but a small amount of oxycontin of similar weight may have a different impact on the body. She wondered if the drugs were treated similarly under the legislation. JOHN SKIDMORE, DIRECTOR, CRIMINAL DIVISION, DEPARTMENT OF LAW, stated that a schedule 6A drug was marijuana. He stated that Fentanyl and oxycontin were both considered schedule 1A substance, but SB 32 did not differentiate based on weight. He stated that there were different factors within the law, both aggregators and mitigators that both applied. He stated that the amounts and the seriousness of the amount was treated differently, which is why there was a range in sentencing. He referred to the Knight Case, which addressed those different considered factors within the current Alaska law. Co-Chair von Imhof remarked that there was a consideration of both sentencing and also having a felony on someone's record. She did not know whether there was a way to sever those two drugs, and treat each one differently. 2:10:44 PM Senator Wielechowski asked if an expired prescription for oxycodone, and that was given to someone in pain, whether that would be a felony under the bill. Mr. Skidmore responded that the concept of giving another person a controlled substance without a prescription would qualify as a felony. He noted that in his 20 years of prosecution, there was no case with those referred facts. He stressed that all the prosecutors state that, with that hypothetical, that they would decline that case. He remarked that his division did not evaluate those drugs, rather the Controlled Substance Advisory Board made those determinations. Senator Wielechowski requested statement from Department of Law (DOL) that they would not be prosecuting someone because of an expired prescription. Mr. Skidmore noted that he was not in a position to make such claims. 2:13:11 PM Senator Wielechowski asked about the schedule 6, four ounces or more of marijuana was now a felony under the legislation. Mr. Skidmore explained that the possession outside of the legal amounts within the industry was affirmative. He noted the exceptions on page 18, line 19, which showed more complications than the one subsection addressing the amount. Senator Micciche wondered whether the intent of the administration was to pass the bill in order to prosecute the person who takes another person's controlled substance for some temporary relief from pain. Mr. Skidmore replied that it the intent was not the intent of the administration. Senator Micciche asked whether the state's drug problems were a associated with a single oxycodone provided to someone is a necessary pain relief situation. Mr. Skidmore replied that he did not believe so. Senator Micciche asked for the difference between the legal and black market marijuana industry. 2:15:53 PM Mr. Skidmore noted that the black market for marijuana remained a crime. He noted that outside of the industry regulation remained a crime. Senator Micciche wondered whether the bill was clarified that legal marijuana was not a part of the increased sentences. Mr. Skidmore replied that it was on page 18, and was repeated in a number of sections. Senator Wielechowski cited the language in Section 29, which said, "if a person possesses any amount of a Schedule 1A controlled substance, they are committing a felony." He understood that there may not be an attempt to prosecute with a felony, but wondered whether a trooper or police officer could arrest and charge a person with a felony and put that person in jail requiring that person to post bail and possibly lose their housing, child custody, and housing, under the bill made it possible under the bill. Mr. Skidmore agreed that the law stated that it was illegal, but his experience showed him otherwise. Senator Wielechowski wondered why a trooper could authorize with a heavy hand, and advised that the felony portion be changed. He 2:19:50 PM Mr. Skidmore responded that Oxycodone was scheduled as a controlled substance. He stated that a prescription was necessary to obtain the drug. He stressed that the bill was focused on the seriousness of the drug. Co-Chair von Imhof stated that it was the intent to hear public testimony at a later meeting. SB 32 was HEARD and HELD in committee for further consideration.