Legislature(2019 - 2020)SENATE FINANCE 532

05/02/2019 01:30 PM FINANCE

Note: the audio and video recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.

Download Mp3. <- Right click and save file as

* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Bills Previously Heard/Scheduled: TELECONFERENCED
+= SB 32 CRIMES; SENTENCING;MENT. ILLNESS;EVIDENCE TELECONFERENCED
Heard & Held
+ SB 33 ARREST;RELEASE;SENTENCING;PROBATION TELECONFERENCED
Heard & Held
+ SB 34 PROBATION; PAROLE; SENTENCES; CREDITS TELECONFERENCED
Scheduled but Not Heard
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.                                                                                                                  
                                                                                                                                

Document Name Date/Time Subjects