Legislature(2019 - 2020)BELTZ 105 (TSBldg)
02/08/2019 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB32 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 32 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 32-CRIMES; SENTENCING;MENT. ILLNESS;EVIDENCE
1:33:21 PM
CHAIR HUGHES announced that the only order of business would be
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."
SENATOR MICCICHE joined the meeting.
CHAIR HUGHES reviewed committee action on SB 32. The committee
heard an introduction of the bill on 2/6/19 and Mr. Henderson
reviewed the sectional analysis of the bill through Section 20.
She remarked that during these hearings the committee will not
consider amendments to the bill. After consulting with
legislative ethics and counsel, in accordance with AS 24.60.030,
it has come to her attention that she may have an indirect
conflict on this legislation. She said she is working to ensure
that the public is heard, and the integrity of this legislative
process is above reproach.
CHAIR HUGHES recognized that Representatives Knopp and Josephson
have joined the meeting.
1:35:34 PM
ROBERT HENDERSON, Assistant Attorney General, Criminal Division,
Central Office, Department of Law, reaffirmed the goal of SB 32
is to return discretion to prosecutors and judges to ensure that
adequate sentences are allowed under the law, and to allow
judges to impose sentences when necessary. He related that the
Department of Law (DOL) found that Senate Bill 91 had
significantly focused on the rehabilitation of the offender with
less focus on the victim and the community. He said that is
contrary to the sentencing criteria that prosecutors must
follow. This bill also focuses on other sentencing criteria,
including the seriousness of the offense, restoration of the
victim, and reaffirmation of societal norms. That does not mean
that rehabilitation is not important since it will always remain
an important factor. However, it cannot be the only factor that
is considered, he said.
1:36:57 PM
MR. HENDERSON continued the sectional analysis of SB 32. He
referred to Sections 21-22 of the sectional analysis which read
as follows:
Section 21: Clean up amendment for change that occurs
in section 22, making failure to appear a crime.
Section 22: Removes 30-day grace period for defendants
during which it was not a crime to fail to show up for
a hearing. Under current law, it is not a crime to
fail to appear for a court hearing unless the person
goes 30 days or longer without making contact with the
court or fails to appear with the intent being to
avoid prosecution. This section removes both of those
limitations.
MR. HENDERSON referred to page 12 of Section 21, which is a
conforming amendment that makes a failure to appear a criminal
offense.
He said that Section 22 would amend the crime of failure to
appear for those on release on bail. Senate Bill 91 made failure
to appear a violation, punishable by a $1,000 fine unless the
offender absconded for more than 30 days. After reviewing
Section 22, he added that the penalty for failure to appear
would be a class C felony if the person is on conditions of
release for a felony and the penalty would be a class A
misdemeanor if the person is on conditions of release for a
misdemeanor.
1:38:05 PM
MR. HENDERSON turned to Section 23 of the sectional analysis for
SB 32, which read as follows:
Section 23: Amends the crime of violating conditions
of release which relates to conditions imposed by the
court on persons on pretrial release. This section
makes it a class A misdemeanor for a person to violate
their conditions of release if they are on release for
a felony and a class B misdemeanor if they violate
while on conditions for a misdemeanor.
MR. HENDERSON reviewed Section 23 and added that Senate Bill 91,
as amended by Senate Bill 54, made all violations of conditions
of release for persons on pretrial release a class B
misdemeanor, punishable by up to five days in jail.
1:38:25 PM
SENATOR REINBOLD asked for further clarification on whether
Sections 22-23 would revert to pre-Senate Bill 91 law.
MR. HENDERSON agreed that Section 22 related to failure to
appear and Section 23 related to violating conditions of
release, which would repeal the penalty provision and revert to
pre-Senate Bill 91 law.
1:39:08 PM
MR. HENDERSON further explained that Section 23 would amend the
crime of violation of conditions of release. He said that Senate
Bill 54, which amended Senate Bill 91, made all violations of
conditions of release for persons on pretrial release a class B
misdemeanor punishable by up to five days in jail.
He said that [Section 23] would amend the kinds of violations of
conditions of release to make it a class A misdemeanor if the
person violates the conditions of release for a felony. It would
make it a class B misdemeanor if the person violates the
conditions of release for a misdemeanor.
MR. HENDERSON turned to the sectional analysis for Section 24,
which read as follows:
Section 24: Makes it a class A misdemeanor to refuse
to provide a DNA sample when arrested for a qualifying
offense. Under current law, those arrested for a
qualifying offense must provide a DNA sample for
inclusion in a DNA database. However, there is no
enforcement mechanism. This section adds that
enforcement mechanism.
This section would amend the crime of violation of condition of
release to a class A misdemeanor if the person violates a
condition of release for a felony. It would make it a class B
misdemeanor if the person violates a condition of release for a
misdemeanor. In response to Senator Reinbold, he clarified that
Section 23 of SB 32 would make it a class A misdemeanor if the
person is released on bail for a felony and a class B
misdemeanor if the person is released on bail for a misdemeanor.
Although he could not currently access the 2014 statutes to
confirm the pre-2016 law, he recalled that this provision will
revert the penalty provisions to pre-Senate Bill 91 and pre-2016
law.
1:41:09 PM
CHAIR HUGHES acknowledged that the sentiment in her office is
that Mr. Henderson is correct. She asked him to verify the
penalty provisions to be certain.
1:41:19 PM
SENATOR KIEHL asked for further clarification on the rationale
for this change. He said that a condition of release lists what
the person cannot do while on bail for the original offense. He
said the goal is for the offender to behave well during the
transition period into the community in order to become a
functional member of society. He asked for further clarification
whether the penalty provision under Senate Bill 54 for violating
a condition of release is to return the offender to prison under
the original sentence.
MR. HENDERSON answered that if a person violates a condition of
release while on bail, the court has the authority to revoke the
bail and impose a new bail on the underlying offense. Violating
of a condition of release means a new criminal charge can be
added for not following the court's order, he said. He
characterized it as a new sanction. This section provides
additional incentive for the offender so the person knows that a
consequence will be added if the person does not follow the bail
order. In further response to Senator Kiehl, he agreed that this
would relate to "pre-conviction" bail.
1:42:53 PM
SENATOR KIEHL asked whether stacking additional criminal charges
might interfere with dealing with the original offense. When a
person faces charge after charge being stacked up, the person
could plead to whatever seems easiest. He expressed concern that
prosecutors would not have the ability during sentencing to
appropriately deal with the underlying offense.
MR. HENDERSON responded that prosecutors always have the ability
to advocate for the appropriate sentence for the underlying
criminal offense. In fact, that charge is separate and distinct
from the violation of a condition of release. He agreed that
sometimes violating a condition of release may be joined to the
underlying offense for the purposes of trial or resolution.
However, sometimes "violating conditions of release" can be
charged separately and result in a separate case number.
1:44:09 PM
SENATOR KIEHL acknowledged that his experience may be limited,
and he may lack the appropriate perspective. He said he would
welcome a discussion on that topic.
MR. HENDERSON welcomed further discussions. He said that
resolving cases is fact dependent and case specific.
1:45:09 PM
SENATOR MICCICHE related his understanding that in terms of
"violating conditions of release," that this bill is a full
repeal of Senate Bill 91. The reason for "the stick" is that the
person is out on release "with a deal." The person is released
pre-trial if the person meets certain conditions, and the person
faces consequences when the requirements are not met.
MR. HENDERSON agreed.
SENATOR MICCICHE said that the consequences are reasonable ones,
scaled specifically to the original crime.
MR. HENDERSON agreed.
SENATOR MICCICHE offered his belief that this is a reasonable
approach. He surmised this might be what has been missing, and
it may highlight why the public was so upset about the direction
taken in [Senate Bill 91].
1:46:05 PM
SENATOR REINBOLD expressed her concern. She said she reviewed a
pre-Senate Bill 91 chart that showed the penalties for violating
conditions of release. She related that pre-Senate Bill 91,
violating conditions of release was a class A misdemeanor if the
underlying crime was a felony. She expressed concern that under
the bill the penalty is only a misdemeanor. Further, the penalty
is a class B misdemeanor if the underlying offense was a
misdemeanor. She said if her memory serves her correctly, the
pre-Senate Bill 91 penalty for class A misdemeanors would result
in 0-365 days in jail, and for class B misdemeanors would result
in 0-90 days. Under Senate Bill 91, the penalty for misdemeanor
offenses was reduced to 0-10 days for class B misdemeanor
offenses and 0-30 days for class A misdemeanor offenses. She
asked whether that is correct.
MR. HENDERSON answered that is correct. He said he would like
the record to be clear. He said Senate Bill 91 reduced the
penalty for class B misdemeanors from 90 days to 10 days. Senate
Bill 91 also reduced the penalty for class A misdemeanors from
365 days to 30 days, absent aggravating factors or certain
offenses.
SENATOR REINBOLD expressed concern that Senate Bill 91
dramatically reduced the penalties for class A and class B
misdemeanors. She elaborated on the effects of Senate Bill 54.
CHAIR HUGHES interjected that she would like to focus on SB 32.
In further response to Senator Reinbold, she asked to focus on
SB 32 and not Senate Bill 54.
1:48:38 PM
SENATOR KIEHL referred to Section 22 and asked for the rationale
for the law being repealed.
He referred to [page 12, lines 21-25 of SB 32] and the language
being deleted, "(A) DOES NOT MAKE CONTACT WITH THE COURT OR A
JUDICIAL OFFICER WITHIN 30 DAYS AFTER THE PERSON DOES 24 NOT
APPEAR AT THE TIME AND PLACE OF A SCHEDULED HEARING; OR."
SENATOR KIEHL asked whether this language might rob the court of
its discretion if someone on bail inadvertently made a mistake;
for example, if the person overslept. He asked whether this
would give the person an incentive to skip town.
MR. HENDERSON said that is a great question; however, that
circumstance is already covered. He referred to current law, AS
11.56.730 (b), which provides an affirmative defense for failure
to appear when unforeseeable circumstances outside the person's
control prevented the person from appearing before court or a
judicial officer for the scheduled hearing. The person must
contact the court orally and in writing immediately upon being
able to do so. He stated that this defense remains in law under
SB 32. It also existed in pre-Senate Bill 91 law. The scenario
Senator Kiehl described is not covered under Section 22, he
said.
1:50:36 PM
MR. HENDERSON reviewed Sections 24-25 of the sectional analysis,
which read as follows:
Section 24: Makes it a class A misdemeanor to refuse
to provide a DNA sample when arrested for a qualifying
offense. Under current law, those arrested for a
qualifying offense must provide a DNA sample for
inclusion in a DNA database. However, there is no
enforcement mechanism. This section adds that
enforcement mechanism.
Section 25: Clarifies that refusing to provide a DNA
sample after conviction, as a part of a person's
sentence, or because the person is required to
register as a sex offender or child kidnapper, is a
class C felony.
1:51:29 PM
CHAIR HUGHES related her understanding that this goes beyond a
repeal since it would add a tool not previously available.
1:51:39 PM
SENATOR KIEHL asked whether existing law would allow a judge to
order a DNA sample from a person who refuses to provide one. He
asked whether any mechanisms exist without the bill.
MR. HENDERSON said that the court could hold someone in contempt
until the person provided the DNA sample. He said that the Court
of Appeals has held that the prosecution does not have the
authority to file contempt charges, that only the court can
authorize the charge. However, it would be a very inefficient
mechanism and way to obtain DNA samples, he said. Creating the
enforcement mechanism to require a DNA sample upon arrest
provides law enforcement with the necessary tools to obtain the
DNA sample through a new criminal offense, he said.
1:52:55 PM
SENATOR KIEHL asked if the reason for this is to catch "cold
cases."
MR. HENDERSON answered yes, that is exactly the reason. The DNA
database or Combined DNA Index System, known as CODIS, is a
powerful law enforcement tool. It has allowed law enforcement
the ability to get the DNA into the system as quickly as
possible, which protects the public "downstream."
CHAIR HUGHES asked whether he would characterize this as closing
a loophole. She asked whether this was something that perhaps
was overlooked.
MR. HENDERSON agreed that Sections 24-26 close the gap or
loophole.
1:54:12 PM
SENATOR MICCICHE asked whether the required submittal of DNA
sample and charge for refusal has passed constitutional muster
in the U.S.
MR. HENDERSON said he was unsure if it has been challenged in
Alaska, but it is a tool used throughout the country. He
characterized the CODIS database as a robust system. He said he
has confidence that the constitutionality of this provision
would be upheld. He could not specifically recall if it has
already been upheld.
1:55:14 PM
CHAIR HUGHES asked Mr. Henderson to follow-up on this and he
agreed to do so.
1:55:23 PM
SENATOR MICCICHE agreed it provides a powerful tool. He
expressed concern about Alaskans' rights to privacy since that
has not been adequately defined. He was just curious if any case
law exists to address this.
MR. HENDERSON said that there are several reasons it would not
violate a person's privacy. He said the qualifying offenses are
very specific and unique. The two offenses are crimes against a
person, and felony DUI offenses, he said. Protections were added
to address people who are acquitted or when the court dismisses
the charges. In those instances, the DNA is removed from the
system, he said. He characterized this as the balance between
the need to ensure that the public has necessary information and
helping to solve cold cases.
1:56:40 PM
SENATOR REINBOLD said that people involved in criminal activity
lose some of their rights. She said this provision will help to
ensure speedy trials and avoid wrongful convictions. This is an
important tool for law enforcement, she said.
1:57:26 PM
SENATOR KIEHL asked for further clarification whether this
includes 100 percent of felonies and any crime against a person.
MR. HENDERSON referred to AS 44.41.035 (b), which read, "The
Department of Public Safety shall collect for inclusion into the
DNA identification registration system a blood sample, oral
sample, or both, from (1) a person convicted in this state of a
crime against a person or a felony under AS 11, AS 26.05, or AS
28.35, ."
He also read AS 44.41035 (b) (6): a person arrested for a crime
against a person or a felony under AS 11, AS 26.05, or AS 28.35,
." He agreed that it was any crime against a person, including
misdemeanor domestic violence offenses, any felony, and felony
DUI.
1:59:06 PM
SENATOR KIEHL noticed that in Sections 25-26 the penalty for
refusing to provide a DNA sample is sometimes a felony and in
other cases is a misdemeanor. He asked him the reason for the
difference.
MR. HENDERSON said that Section 25 makes refusing to provide a
DNA sample a class C felony if convicted and Section 26 makes it
a misdemeanor if arrested. Again, this provides balance, he
said. If you fail to provide a DNA sample upon arrest, the
penalty is a misdemeanor. The penalty for failure to provide a
DNA sample upon conviction is a class C felony, which is also
current law.
MR. HENDERSON referred to Section 26, which read as follows:
Section 26: Classification section. Classifies the
crime of violating an order to submit to DNA testing
upon arrest is a class A misdemeanor.
He said this provides an enforcement mechanism specific to
arrest.
2:00:31 PM
SENATOR MICCICHE said he supports the collection of DNA
evidence. However, he would like to be certain that this
provision is constitutional.
MR. HENDERSON offered to provide an answer to the committee.
2:01:37 PM
MR. HENDERSON turned to Section 27 of the sectional analysis for
SB 32, which read as follows:
Section 27: Enacts a generalized threat statute to
cover when an individual threatens to commit a serious
crime which reasonably places another person in fear.
Covers real threats of violence and not simply false
threats.
MR. HENDERSON said this adds a new provision that is not related
to Senate Bill 91. He explained that this focuses on the effect
of the threat, not on its falseness. The prior law related to
terroristic threatening was designed and implemented as an
aggravated form of making a false report. Under current law,
terrorist threatening is only a crime if the threat is false.
This changes it to add both real and false threats.
2:02:46 PM
CHAIR HUGHES asked whether the prior law made it a crime if the
threat was imminent or if it was false.
MR. HENDERSON explained that under the crime of assault in the
fourth degree, which is misdemeanor assault, the person makes a
threat if the person places someone in fear by words or conduct.
However, if the words or threat has an immediacy component to
it, under the crime of terrorist threatening, the threat had to
be false. This fixes that by creating a new offense that would
criminalize a generalized threat.
He explained that these types of generalized threat statutes
allow law enforcement to intervene for reports of threats
involving a school shooting, or some type of catastrophic event,
such as a bomb threat. In those instances, law enforcement can
take immediate action and not wait until the threat is imminent
or the person has taken a substantial step. These generalized
threat statutes have been upheld nationwide, because the
person's actions recklessly placed someone in fear of serious
physical injury, which does not infringe upon someone's first
amendment rights.
2:04:49 PM
CHAIR HUGHES said she understood the intent. She wanted to
ensure that this language does not extend the crime of
terroristic threatening to a situation in which two people are
in a bar fight and one of them threatens the other. She referred
to page 13 under Section 27, paragraph (1), subparagraphs (A)-
(D), are joined by "or." She referred to page 13, line 29 to AS
11.56.810(a)(1) (A), which read, "placing a person in reasonable
fear of serious physical injury to any person?" She asked
whether any confusion would happen, such that the person in the
bar would be charged with terroristic threatening.
MR. HENDERSON agreed that the new crime of terroristic threat is
not designed to capture the conduct she just described. The
conduct of a person in a bar who threatens to assault someone
would fall under the current assault statutes. This language is
limited since it would place the person in reasonable fear of
serious physical injury. He explained that the term "serious
physical injury" has a specific definition under the law and is
not just any injury. It must be a substantial injury that would
interfere with bodily functions, such as being shot, with
severely damaged body parts.
2:07:17 PM
CHAIR HUGHES acknowledged that if someone in a bar had a gun the
crime would be clear. However, what if the person in the bar was
strangling someone. She suggested that perhaps the committee
needs to better understand the definition for "serious physical
injury." She wanted to be sure that this language does not cast
too wide a net.
MR. HENDERSON related his understanding that a factual scenario
exists that could capture a person in terrorist threatening and
not the assault statutes. However, the criminal division would
be looking at the specific intent of the language when charges
are filed. The DOL is not trying to criminalize every potential
bar fight, but to provide law enforcement the necessary tools to
intervene with safety threats.
CHAIR HUGHES said she wanted to have this on the record to be
sure the intent is clear. She acknowledged that law enforcement
would likely realize the intent and distinction.
2:08:49 PM
SENATOR KIEHL asked for further clarification on Mr. Henderson's
comments on the language for false threats.
MR. HENDERSON said that in the commentary to current law,
terroristic threatening is referred to as an aggravated form of
making a false report.
SENATOR KIEHL asked whether the benefit of switching it to
terroristic threatening would be to make it a more serious
offense. He asked whether terroristic threatening in the second
degree would be more serious than an aggravated false report.
MR. HENDERSON said it would be the same level of offense with a
class C felony penalty. The goal is to create a statute that
ensures a crime covers the threat when it is real as opposed to
when it is false, he said. One of the necessary elements of the
current law is that the threat has to be false. For example, if
a person says, "I'm going to blow up the school tomorrow" and it
is just a joke, that would be covered. However, if the person
has an intent to follow through with it, it is not currently
covered in the criminal code. This provision is necessary, so
the state has the ability to stop that activity from happening.
2:10:40 PM
SENATOR MICCICHE said that the reason for AS 11.56.810(a) is
key. The language is almost verbatim, including the "or." This
language would essentially change the statute from making a
false report to committing the crime of terroristic threatening.
He related his understanding that previously, the statute
required that it be a false report and under [proposed Section
27] it can be either, so long as that threat is communicated.
MR. HENDERSON answered that is correct.
2:11:16 PM
MR. HENDERSON turned to Section 28 of the sectional analysis,
which read as follows:
Section 28: Makes the crime of disorderly conduct a
class B misdemeanor punishable by not more than 10
days.
MR. HENDERSON said that this would return disorderly conduct to
a class B misdemeanor, punishable up to 10 days in jail. Under
Senate Bill 91, the maximum penalty for district court was 24
hours. This returns discretion on disorderly conduct cases to
the court and prosecution, he said. In response to a question,
he clarified the penalty.
2:12:11 PM
MR. HENDERSON offered to cover each section separately but
highlighted that Sections 29-37 collectively return the drug
laws to pre-Senate Bill 91 law. He referred to a matrix in
members' packets. He said that two specific aspects of the
matrix will be relevant to this conversation, which are drug
possession and distribution.
2:13:12 PM
MR. HENDERSON turned to Section 29 of the sectional analysis,
which read as follows:
Section 29: Reenacts class A felony level crime for
the distribution of schedule IA controlled substances
(heroin) and making methamphetamine.
MR. HENDERSON explained that this relates to distribution of any
amount of a schedule IA controlled substance, which includes
opioids and opioid derivatives such as heroin, fentanyl, and
morphine. It would also return the manufacture of
methamphetamine to a class A felony offense. He explained that
Senate Bill 91 moved the manufacture of methamphetamine from a
class A felony to a class B felony offense.
2:14:16 PM
MR. HENDERSON read Section 30, which read as follows:
Section 30: Renames AS 11.71.030, misconduct involving
a controlled substance in the second degree to
misconduct involving a controlled substance in the
third degree. Amends the statute to include
manufacturing or distribution of any amount of a
schedule IIA or IIIA controlled substance. Also
repeals section of law regarding the delivery of 1g or
more of a schedule IA controlled substance or 2.5
grams or more of a schedule IIA or IIIA controlled
substance as the amendments in the bill focus on the
type of drug being distributed and not necessarily the
amount.
He added that schedule IIA controlled substances includes
dangerous stimulants, including cocaine, methamphetamine, LSD,
and PCP, and mushrooms. The schedule IIIA controlled substances
are anabolic steroids, and depending on how it is manufactured,
includes Spice [synthetic cannabinoids]. It also repeals Section
30, pages 16-17 of law for the distribution of one gram or more
of a schedule IA controlled substance or 2.5 grams of a schedule
IIA or IIIA controlled substance.
2:15:46 PM
CHAIR HUGHES asked for further clarification and acknowledged
she might be getting "into the weeds." She referred to Section
29, which relates to a class A felony for distributing and
manufacturing schedule IA controlled substances. She referred to
page 17, to Section 30, [AS 11.71.030](a), which relates to
misconduct involving a controlled substance in the third degree
and relates to manufacturing schedule IA controlled substances.
She asked whether this is a smaller amount of drugs or to
otherwise explain the difference.
MR. HENDERSON said he would explain each subsection of Section
30. He said that most of the current language in AS 11.71.030(a)
will be repealed by Section 51. What will remain is the
distribution of any schedule IIA or schedule IIIA controlled
substance, the distribution of any schedule IVA, VA, or VIA
drugs to a person under the age of 19, or possession near a
school.
He referred to the language related to the manufacture,
delivery, or possession with intent to manufacture or deliver
schedule IA controlled substances. He directed attention to page
16, Sec. 30, to AS 11.71.030(a)(1)(A), which read, "one or more
preparations, compounds, mixtures, or substances of an aggregate
weight of one gram or more containing a schedule IA controlled
substance;" and said that is repealed in Section 50. He related
that subparagraphs (B), (C), and (D) of Section 30 are also
repealed.
2:17:17 PM
CHAIR HUGHES asked why the repealed language is not shown in
Section 30.
MR. HENDERSON explained that this was a bill drafting decision
to include the repealed language together. He offered to further
explain. In further response, he stated it is standard drafting
protocol to group the repealed language.
2:18:05 PM
SENATOR MICCICHE asked the department for a markup version that
shows the effect of the repealed language in the body of the
bill.
CHAIR HUGHES agreed it would be helpful.
2:18:41 PM
CHAIR REINBOLD suggested that color coding could help and
elaborated on her request.
2:19:25 PM
MR. HENDERSON agreed to provide a marked-up version.
2:19:36 PM
At-ease.
2:21:01 PM
CHAIR HUGHES reconvened the meeting.
2:21:09 PM
MR. HENDERSON reviewed the repealed provisions in Section 30. He
said that [AS 11.71.030](a)(1) is repealed in Section 50; that
[AS 11.71.030](a)(4), related to the manufacture of
methamphetamines, has been repealed since it was moved to a
class A felony. On page 17, [AS 11.71.030](a)(6), possession of
a listed chemical with intent to manufacture methamphetamine was
repealed and moved to misconduct involving a controlled
substance in the second degree. On page 18. [AS 11.71.030](a)
(7), possess methamphetamine in an organic solution, and [AS
11.71.030(a)(8), [related to delivery of methamphetamine] were
both repealed.
He said that new language was added related to distribution of a
schedule IIA controlled substance or schedule IIIA controlled
substance in [AS 11.71.030](a)(9), which read as follows:
(9) under circumstances not proscribed under AS
11.71.021(a)(2) (6), manufactures or delivers any
amount of a schedule IIA or IIIA controlled substance
or possesses any amount of a schedule IIA or IIIA
controlled substance with intent to manufacture or
deliver.
2:22:24 PM
MR. HENDERSON read Sections 31-32 of the sectional analysis of
SB 32, as follows:
Section 31: Conforming amendment to the changes made
in section 30.
Section 32: Makes the possession of any amount of a
schedule IA (heroin) or IIA (methamphetamine, cocaine,
PCP, etc.) controlled substance and various amounts of
IIIA, IVA, and VIA controlled substances a felony.
He said that the language in paragraphs (1) and (2) are
unchanged, but paragraph (3) is new language that reinstates a
felony for possession of any amount of these very dangerous
drugs.
2:23:23 PM
SENATOR MICCICHE asked for further clarification [on marijuana
possession]. He has received calls from licensed marijuana
businesses. He asked for further clarification that licensees
possessing legal amounts of marijuana and growing legal
quantities of marijuana are not covered by [Section 32].
MR. HENDERSON answered that he is absolutely right. He explained
that AS 11.71 deals with unregulated or illegal marijuana and
does not touch upon or reach into AS 17.38, related to the
regulated marijuana industry.
2:24:03 PM
SENATOR MICCICHE asked whether the full repeal also includes a
full repeal of the sentencing changes, such that the class A
felony and class B felony for distribution goes back to the pre-
Senate Bill 91 sentencing guidelines.
MR. HENDERSON answered that is correct.
2:24:26 PM
SENATOR REINBOLD offered her belief that the committee agrees
and is working together on this issue. She said she thought this
was the most important crime bill. She related that prosecutors
and victims have identified this as one of the core problems.
She described the cycle of drug use that leads to burglary,
robbery, assault, or even homicide. She remarked that this bill
is so important and urged giving law enforcement these tools.
2:25:50 PM
MR. HENDERSON said that Senator Reinbold made a very important
point and one of the things this bill does is to reprioritize
prosecution and interdiction of drug offenses, which is what is
seen throughout this bill.
MR. HENDERSON continued his sectional analysis of SB 32. He
reviewed Sections 33-34, which read as follows:
Section 33: Conforming amendment to the changes made
in section 32.
Section 34: Removes possession of most dangerous
controlled substances from the crime of misconduct
involving a controlled substance in the fifth degree,
as those possessory crimes would be a class C felony
under the bill.
He said Section 34 reinstates the prior misconduct involving a
controlled substance in the fifth degree, which is a class A
misdemeanor. This would move possession of the most dangerous
drugs, such as heroin, methamphetamine, and cocaine from a
misdemeanor level [to a class C felony].
2:26:43 PM
MR. HENDERSON reviewed Sections 35-36 of the sectional analysis,
which read as follows:
Section 35: Renames AS 11.71.060 "misconduct involving
a controlled substance in the sixth degree" to conform
with the changes made to the drug offense statutes.
Section 36: Conforming amendment to statute
prohibiting prosecution of individuals who seek
medical or law enforcement assistance for a person who
is overdosing.
He stated that Section 35 will return to the 2016, pre-Senate
Bill 91 law. He said that Section 36 relates to the "Good
Samaritan Law" in Alaska, which prohibits the prosecution of
individuals for certain drug offenses when an individual seeks
medical or law enforcement intervention.
2:27:27 PM
CHAIR HUGHES remarked that Mr. Henderson has gotten through the
drug classification changes. She summarized that pre-Senate Bill
91 had six degrees, that Senate Bill 91 changed that to five
degrees, and SB 32 would bring it back to six degrees.
MR. HENDERSON answered that is correct. He said that everything
moved down one, except for the unclassified misconduct involving
a controlled substance in the first degree.
2:27:59 PM
SENATOR MICCICHE asked for further clarification on the drug
possessions. He related his understanding that the penalties
returned to a class C felony and a class A misdemeanor. He asked
whether the section has been retained that allows for a
suspended sentence to provide a treatment plan for a first-time
offender. He said this would help the person turn around his/her
life.
MR. HENDERSON answered that Senator Micciche is absolutely
correct. He related this provides several tools. The department
has always had a suspended imposition of sentence (SIS), but the
[criminal justice system] will also have a suspended entry of
judgment (SEJR), which is a sentence agreement for those who
complete treatment and the judgment is never entered, and the
conviction will not stand.
2:29:02 PM
MR. HENDERSON turned to Section 37 of the sectional analysis,
which read as follows:
Section 37: Increases the maximum period of probation
for felony sex offenses from 15 years to 25. Also
increases the maximum period of probation for any
other offense to 10 years.
MR. HENDERSON elaborated that Senate Bill 91 limited the length
of time for probation, depending on the offense and conviction.
This section would return that discretion to the court and
allows the court to place someone on probation for the length of
time necessary, based on the judge's judgment as to what would
be an appropriate length of probation.
2:29:49 PM
CHAIR HUGHES asked for further clarification on whether this
section would apply to those sentenced during the period that
Senate Bill 91 was in effect or if those parties would receive
shorter probation periods.
MR. HENDERSON said that would relate to the applicability
sections. The criminal penalties that would govern the criminal
conduct would be what existed at the time the person committed
the offense.
CHAIR HUGHES asked for the current probation time.
MR. HENDERSON answered that the 2016, pre-Senate Bill 91, felony
sex offenses were up to 25 years of probation and all other
offenses were 10 years. Under the current law, felony sex
offenses has a maximum probation term of 15 years, felony crimes
against a person has a maximum probation term of 10 years, and
felony non person crimes has a maximum probation term of five
years, and misdemeanor person crimes has a maximum probation
term of three years, and misdemeanor DUI has a maximum probation
term of two years, and all other misdemeanors have a one year
term.
2:31:14 PM
SENATOR REINBOLD remarked that this section is so important.
2:31:33 PM
SENATOR MICCICHE referred to drug distribution. He said that in
the next committee of referral, he may be interested in an
escalator on the maximum felony sentencing for certain
quantities of distribution. He asked whether the department
could assist him on proposed language.
MR. HENDERSON said that if Senator Micciche has questions as to
the impacts of sentencing enhancements, that the department
would be available to help.
2:32:29 PM
SENATOR KIEHL asked whether he could give an example of a
misdemeanor that needs 10 years of probation.
MR. HENDERSON answered yes. He related a scenario for a theft
case, when the restitution is outstanding. The alternative is to
have the restitution judgment become a civil judgment that the
victim must execute. In that instance, the victim would not have
the benefit of the criminal justice system. He said it may be
important to keep the person on probation to ensure that the
restitution is met. In other circumstances, a person may need a
longer period of time to meet the conditions of probation. He
pointed out that these are maximum terms, but this allows the
court the discretion to make those decisions.
SENATOR KIEHL recalled sentencing has a whole series of
aggravators. He asked whether those apply to probation.
MR. HENDERSON answered no.
2:34:22 PM
MR. HENDERSON turned to Sections 38-40, which read as follows:
Section 38 40: Enhanced sentences for making
methamphetamine around children or engaging children
in the sale of methamphetamine are reenacted. Also
increases the presumptive sentencing ranges for class
A, B, and C felonies.
Felony
Current Law SB 32
Level
Class A First Felony: 3-6 First Felony: 5-8
(20 max) (20 max)
Second Felony: 8-12 Second Felony: 10-14
(20 max) (20 max)
Third Felony: 13-20 Third Felony: 15-20
(20 max) (20 max)
Class B First Felony: 0-2 First Felony: 1-3
(10 max) (10 max)
Second Felony: 2-5 Second Felony: 4-7
(10 max) (10 max)
Third Felony: 4-10 Third Felony: 6-10
(10 max) (10 max)
Class C First Felony: 0-2 First Felony: 0-2
(5 max) (5 max)
Second Felony: 1-4 Second Felony: 2-4
(5 max) (5 max)
Third Felony: 2-5 Third Felony: 3-5
(5 max) (5 max)
MR. HENDERSON said that this would return the presumptive
sentencing to pre-Senate Bill 91. He suggested that Senate Bill
91 moved the ranges down one level. He explained presumptive
sentencing. When someone commits a felony offense their sentence
is dictated by two factors, one is the classification of the
offense, such as an unclassified class A, B, or C felony.
Secondly, the person's criminal history is considered, which
gives a range of sentencing. In order to go above or below the
range, the court must find an aggravator or a mitigator,
depending on the circumstances of the case.
He said that Section 38 would adjust all the presumptive
sentence ranges for class A felony back [to pre-Senate Bill 91].
He explained that this includes both the range itself and what
is often considered special circumstances, such as when a person
commits a class A felony and possessed a firearm, used a
dangerous instrument, or caused serious physical injury. In
those instances, the person would face a higher presumptive
sentence range. He directed attention to language on page 25 of
SB 32, which returns the enhanced penalty for making
methamphetamine in the presence of children. This returns the
presumptive sentence penalty to a range of seven to 11 years.
2:36:33 PM
MR. HENDERSON turned to Section 39 of the sectional analysis,
which returned the sentencing ranges for all class B felony
offenses to pre-Senate Bill 91, along with the return of the
enhanced sentencing provisions for class B felony offense for
someone attempting to make methamphetamine around children.
2:36:53 PM
MR. HENDERSON turned to Section 40 and stated this would return
the presumptive ranges for class C felony offenses. He pointed
out that Senate Bill 91 made the presumptive sentence range for
a first-time class C felony offense a presumptive probationary
term of 18 months. That was amended to 0-2 years in Senate Bill
54. He directed attention to Section 40 on page 26, of SB 32,
which leaves that change in since it was pre-Senate Bill 91
language. Again, that goes back to the 2016 pre-Senate Bill 91
law, he said.
2:37:41 PM
SENATOR MICCICHE asked whether a 20-year maximum sentence would
include an aggravator above the 5-8, 10-14 , or 15-20 years of
sentencing ranges. He asked if a judge would take excessive
amounts of drugs intended for distribution into account as an
aggravator or if it needed to be specified.
MR. HENDERSON replied that a specific aggravator exists for "a
large amount" that allows the court to go beyond the presumptive
sentence range. He said that "a large amount" is unique to the
facts of the case and is different in Kotzebue than "a large
amount" in Anchorage. That is one reason for a reluctance to
specify an amount in drug laws for very serious drugs. It is
important to allow the judge to have discretion to understand
the impact of a specific drug on a specific community when the
crime occurred, he said.
2:39:01 PM
SENATOR MICCICHE asked for further clarification why the maximum
is 20 years for a class A felony instead of using a sliding
scale. He further asked for the reason why the penalty for a
third felony is a maximum of 20 years when the maximum penalty
is the same for a first felony offense. He suggested he expected
it to be on a sliding scale.
MR. HENDERSON answered that it is based on the classification
system that is established in Alaska law, with four
classifications of felonies. Those classification always dictate
a maximum term, he said. For example, the maximum penalty for
all class C felonies is five years, for all class B felonies is
10 years, for all class A felonies is 20 years. Unclassified
felonies are unclassified and most go up to 99 years, he said.
He explained that the classification system sets the maximum
penalty, establishes ranges within the maximum, and depending on
the situation, also establishes mandatory minimum sentences.
2:40:11 PM
SENATOR REINBOLD said it seemed like Alaska has so many cases
that do not set mandatory minimums.
MR. HENDERSON recalled that minimums are scattered throughout
the code. For example, murder of a police officer establishes a
mandatory minimum of 99 years. He referred to the "three strikes
and you are out" provision in which a person who commits three
class A or unclassified offenses in a series, faces a mandatory
minimum of 99 years. He pointed out the mandatory minimum for
misdemeanor assault of police officer is either 30 or 60 days,
that a first-time DUI has a mandatory minimum of 3 days; a
second DUI has a mandatory minimum of 20 days. In addition,
mandatory minimums for felony DUIs also exist. He reiterated
that mandatory minimum sentences are found throughout the code.
SENATOR REINBOLD offered her belief that Alaska's criminal code
and laws are not that harsh compared to some other states. She
remarked that even the pre-Senate Bill 91 laws in Alaska are not
that harsh. She advocated for the governor to consider tougher
minimum penalties.
2:42:52 PM
CHAIR HUGHES also expressed concern. She advocated for
discretion as a powerful tool. The public has been outraged when
judges choose to impose zero penalties. She agreed with Senator
Reinbold, that the state has an opportunity to reconsider the
penalties.
2:43:48 PM
MR. HENDERSON turned to Section 41 of the sectional analysis
which read as follows:
Section 41: Prohibits the suspension or reduction of
the period of mandatory probation outlined in statute
for sex offenders.
MR. HENDERSON said that Section 41 would clarify that the
probation or suspended portion of a sentence in a sex offense
cannot be reduced.
MR. HENDERSON reviewed Section 42 of the sectional analysis, as
follows:
Section 42: Returns sentencing range for class A
misdemeanors to 0-1 year.
MR. HENDERSON reviewed Section 43 of the sectional analysis, as
follows:
Section 43: Returns sentencing range for class B
misdemeanors to 0-90 days.
He said Senate Bill 91 limited it to 10 days.
2:44:28 PM
MR. HENDERSON reviewed Sections 44-45 of the sectional analysis,
as follows:
Section 44: Reenacts prohibition on jail time for a
first marijuana offense if the person is not on
probation or parole at the time of the offense.
Section 45: Repeals requirement that a person serve
their sentence for a first DUI on electronic
monitoring or house arrest. Returns discretion to the
commissioner of corrections to place the person on
electronic monitoring at a private residence or at a
community residential center.
2:44:43 PM
SENATOR KIEHL said that one thing that strikes him about this
bill is that it is "kind of a double tap." Not only does it
raise each crime to a higher order of crime, but it also
proposes to increase the sentences for each level of offense. He
asked what deters criminals. He recalled that a few years ago,
the legislature raised the penalties for some of the most severe
violent crimes. He asked whether the crimes have gone down. He
further asked what deterrents work best.
MR. HENDERSON agreed that in some instances the criminal offense
is elevated and the criminal penalty. He pointed out that the
bill increases the ceiling, and not necessarily the sentence if
it is not necessary. The judge makes the decision based on the
circumstances of the case and sets the appropriate sentence.
This is important because it reaffirms that the court needs to
apply all of the sentencing factors, not just deterrence, not
just rehabilitation, not just community condemnation, but all of
the factors. The judge must weigh these factors appropriately,
and in some instance, rehabilitation might be the most important
sentencing factor. In other cases, it might not be the most
important factor, which might be isolation, community
condemnation, or restoration of victim's rights. The judge needs
to have the options to impose the sentence, when appropriate.
2:47:29 PM
SENATOR KIEHL asked whether the criminal justice system does not
have any deterrent to stop crime.
MR. HENDERSON said he thought the question is whether deterrence
works. He said he is not a social scientist so he cannot answer
it. He said that the criminal justice system must consider
deterrence for the specific offender and for the community as a
whole. He referred to the DUI laws and general deterrence that
imposing a mandatory penalty has on the public. He said that how
the person must serve that sentence will be discussed in the
next section. However, the general public knows if you commit
this offense, a DUI, this is going to happen.
2:49:00 PM
SENATOR KIEHL asked for certainty. "How do we know that has a
deterrent effect?" he asked.
MR. HENDERSON offered his belief that the number of DUIs have
dropped considerably over 30 years. He acknowledged that this is
due to a number of reasons; however, one reason is mandatory
incarceration. He suggested that lowering the blood alcohol
concentration (BAC) and instituting collateral consequences are
other reasons.
2:49:54 PM
CHAIR HUGHES suggested that cab drivers could verify if they
have more pickups on Friday and Saturday nights. She said she
thinks that they do, and that people think twice. Based on
conversations she has had with law enforcement in Southcentral,
Alaska has had an influx of criminals from the Lower 48 because
of the softening of Alaska's laws, she said. She said by
toughening them up, Alaska should slow down and stop that
importation and focus on Alaskans.
2:50:40 PM
MR. HENDERSON read Sections 45-46, of the sectional analysis for
SB 32, house arrest, as follows:
Section 45: Repeals requirement that a person serve
their sentence for a first DUI on electronic
monitoring or house arrest. Returns discretion to the
commissioner of corrections to place the person on
electronic monitoring at a private residence or at a
community residential center.
Section 46: The same changes in section 45 are made in
section 46 to the statute governing refusal to submit
to a chemical test.
2:51:08 PM
SENATOR KIEHL noticed that the DUI statutes have typically used
the same approach for a person who refused to "blow" by treating
it as though the person had a high reading. He asked for the
reason to apply a different standard for refusal to submit to a
chemical test.
MR. HENDERSON said he might be confused about the question. He
said that Sections 45 and 46 allows for the same amount of
discretion.
SENATOR KIEHL asked whether the person could serve the penalty
for refusal to submit to a chemical test on electronic
monitoring.
MR. HENDERSON agreed; however, it would need to be approved by
the Department of Corrections.
SENATOR KIEHL said he must have misread it.
2:51:59 PM
MR. HENDERSON reviewed Section 47 of the sectional analysis,
which read as follows:
Section 47: Conforming amendment due to the enactment
of the class A felony level offense for drug
distribution. Adds that conduct to the definition of
"illegal activity involving a controlled substance" in
the landlord tenant statutes.
MR. HENDERSON explained this is a conforming amendment to the
landlord tenant statutes with changes to the drug statutes.
2:52:21 PM
MR. HENDERSON reviewed Section 48 of the sectional analysis,
which read as follows:
Section 48: Conforming amendment. Adds all felony
level drug distribution to the list of crimes
involving a minor which the Department of Health and
Social Services will disclose information to the
public.
MR. HENDERSON explained this is a conforming amendment to the
list of crimes covered by the Department of Health and Social
Services (DHSS), Division of Juvenile Justice.
2:52:25 PM
MR. HENDERSON reviewed Section 49 of the sectional analysis,
which read as follows:
Section 49: Requires the Alaska Court System to
transmit information regarding involuntary commitments
that have occurred since October 1, 1981 to the
Department of Public Safety.
MR. HENDERSON said this change is not related to Senate Bill 91.
This change would ensure that the Alaska Court System can
transmit information related to involuntary commitments to the
Department of Public Safety. Prior to 2014, the department would
have the information available to upload into the national data
base.
2:52:52 PM
MR. HENDERSON reviewed Section 50 of the sectional analysis,
which read as follows:
Section 50: Allows a person's rap sheet to be used at
grand jury to prove the existence of prior convictions
when prior convictions are an element of the offense.
MR. HENDERSON said this change is not related to Senate Bill 91.
This is a rule of efficiency for the prosecution. It would amend
Criminal Rule 6(r) which governs the admissibility of certain
evidence at grand jury. This amendment would allow the
prosecution to introduce a person's criminal history
electronically, as opposed to using certified judgments, when
appropriate and when necessary to prove the existence of
predicate offenses. He suggested it would apply to recidivist
theft, assault, and felon in possession types of offenses. This
would allow the criminal justice system to hold the person on
the felony charge in instances in which a lag time in receiving
the certified judgment occurs. Otherwise, the prosecutors would
need to dismiss the felony charge or reduce it to a misdemeanor
charge.
2:53:54 PM
CHAIR HUGHES pointed out that delays can occur when the
information is coming from other state agencies. She said it can
result in significant delays, so this is a very sensible
approach.
2:54:14 PM
MR. HENDERSON explained that Section 51 is the repealer section
and Section 52 is the applicability section.
2:54:27 PM
SENATOR KIEHL asked whether there is a change in the domestic
violence (DV) look back in Section 51.
MR. HENDERSON recalled that this repeals the "look back" for
prior convictions for misdemeanors, in part, to return
discretion to the court on a misdemeanor for up to 365 days
since the cap has been eliminated. Now the court has the
authority to sentence appropriately within that entire range.
SENATOR KIEHL asked for further clarification.
MR. HENDERSON stated that under current law, Senate Bill 91, a
cap exists on class A misdemeanors of 30 days. The court can
impose a sentence up to 365 days if the person has prior
convictions or for certain offenses. A prior section unique to
the misdemeanor code repealed the definition of prior
convictions because the court now has the discretion to impose a
sentence up to a year. The court would consider all the facts
and circumstances in the case, he said.
2:56:13 PM
SENATOR KIEHL asked for further clarification on statutory
aggravators in Section 51.
MR. HENDERSON replied that the "Juneby rule" does not allow the
offense to be counted double. It does not allow the element of
the offense to be double counted and also make it an aggravating
factor to exceed the presumptive range. He said it has been the
law since the Court of Appeals issued the decision. In further
response, he explained that the "Juneby rule" is eliminated for
misdemeanors since the sentencing cap and aggravating factors
have been removed. It is not necessary to have a double counting
provision since the court would now have an overall range to
sentence appropriately and the misdemeanor aggravators have been
repealed.
2:57:37 PM
MR. HENDERSON related Section 52 is the applicability section
and Section 53 is the retroactivity section that makes section
49, the data sharing between the DPS and the court system,
retroactive. He said that Section 54 is the conditional effect
section for the court rule change for the criminal 6(r) change.
Section 55 creates an immediate effective date for Sections 49
and 55. Section 56 would establish July 1, 2019 as the effective
date for all other sections.
[SB 32 was held in committee.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| SJUD Agenda 2.8.19.pdf |
SJUD 2/8/2019 1:30:00 PM |
|
| SB32 - Version A.pdf |
SJUD 2/6/2019 1:30:00 PM SJUD 2/8/2019 1:30:00 PM SJUD 2/9/2019 1:00:00 PM SSTA 3/5/2019 3:30:00 PM SSTA 4/4/2019 1:30:00 PM SSTA 4/9/2019 3:30:00 PM SSTA 4/11/2019 3:30:00 PM SSTA 4/15/2019 6:00:00 PM |
SB 32 |
| SB 32 Transmittal Letter.pdf |
SJUD 2/6/2019 1:30:00 PM SJUD 2/8/2019 1:30:00 PM SSTA 3/5/2019 3:30:00 PM SSTA 4/11/2019 3:30:00 PM |
SB 32 |
| SB 32 - Classification and Sentencing Sectional.pdf |
SFIN 4/24/2019 1:30:00 PM SJUD 2/8/2019 1:30:00 PM SJUD 2/9/2019 1:00:00 PM SSTA 4/9/2019 3:30:00 PM SSTA 4/11/2019 3:30:00 PM SSTA 4/15/2019 6:00:00 PM |
SB 32 |
| SB32-DOA-PD-FN.pdf |
SJUD 2/6/2019 1:30:00 PM SJUD 2/8/2019 1:30:00 PM SJUD 2/9/2019 1:00:00 PM |
SB 32 |
| SB32-DOA-OPA-FN.pdf |
SJUD 2/6/2019 1:30:00 PM SJUD 2/8/2019 1:30:00 PM SJUD 2/9/2019 1:00:00 PM |
SB 32 |
| SB32-DOC-PopMgmt-IDO-FN.pdf |
SJUD 2/6/2019 1:30:00 PM SJUD 2/8/2019 1:30:00 PM SJUD 2/9/2019 1:00:00 PM |
SB 32 |
| SB32-DPS-CJISP-FN.pdf |
SJUD 2/6/2019 1:30:00 PM SJUD 2/8/2019 1:30:00 PM SJUD 2/9/2019 1:00:00 PM |
SB 32 |
| SB32-HSS-PS-FN.pdf |
SJUD 2/6/2019 1:30:00 PM SJUD 2/8/2019 1:30:00 PM SJUD 2/9/2019 1:00:00 PM |
SB 32 |
| SB32-Law-CrimDiv-FN.pdf |
SJUD 2/6/2019 1:30:00 PM SJUD 2/8/2019 1:30:00 PM SJUD 2/9/2019 1:00:00 PM |
SB 32 |