Legislature(2023 - 2024)BUTROVICH 205
03/31/2023 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB64 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 64 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 64-CONTROLLED SUB.;HOMICIDE;GOOD-TIME DEDUC.
1:31:33 PM
CHAIR CLAMAN announced the consideration of SENATE BILL NO. 64
"An Act relating to homicide resulting from conduct involving
controlled substances; relating to the computation of good-time;
and providing for an effective date."
He noted that this was the second hearing and Ms. Tallmadge,
aide to Deputy Attorney General John Skidmore, would present the
sectional analysis for SB 64.
1:32:32 PM
Kathe Tallmadge, Aide to Deputy Attorney General John Skidmore,
Office of the Attorney General, Criminal Division, Department of
Law, Juneau, Alaska, reviewed the sectional analysis for SB 64.
It read as follows:
Section 1. This section reclassifies a homicide
resulting from conduct involving controlled substances
from manslaughter to murder in the second degree. A
person is guilty of murder in the second degree under
this theory where the person violates misconduct
involving a controlled substance in the first, second,
third, or fourth degree for a schedule IVA controlled
substance, and a person dies as a result of ingesting
the drugs. The person must knowingly manufacture or
deliver the controlled substance but there is no
required mental state for the death.
Section 2. This section amends computation of good-
time to preclude individuals convicted of misconduct
involving a controlled substance in the first, second,
third, and fourth degree from receiving a good-time
deduction from their sentence.
Section 3. This section is the repealer section.
Section 4. This section is the applicability section.
This bill will apply to offenses occurring on or after
the effective date. Section 5. This section
establishes the effective date as July 1, 2023.
Section 5. This section establishes the effective date
as July 1, 2023.
1:33:52 PM
CHAIR CLAMAN asked for questions.
1:34:07 PM
SENATOR KIEHL asked about the definition of delivers in
Section 1 and the range of conduct that it covers.
1:34:45 PM
JOHN SKIDMORE, Deputy Attorney General, Office of the Attorney
General, Criminal Division, Department of Law, Anchorage,
Alaska, responded that delivers is a term used throughout the
AS 11.71 drug statutes. It is defined in AS 11.71.900(7).
(7) "deliver" or "delivery" means the actual,
constructive, or attempted transfer from one person to
another of a controlled substance whether or not there
is an agency relationship;
1:35:29 PM
SENATOR KIEHL surmised that the definition covers controlled
substance importation or dealing. He wondered how the definition
would apply to two individuals using drugs together. He asked if
the person supplying the drugs would be "delivering" the drugs
to the other.
1:35:55 PM
MR. SKIDMORE replied that the court must establish and prove
beyond a reasonable doubt that one person provided the drugs to
the other and who that person was. He believed the circumstances
would fall under the definition, but he had never seen the
prosecution of a case where one person hands drugs to another
person. He explained that delivery normally defines the
selling of controlled substances. He agreed that the definition
of delivery is broader and does criminalize handing drugs from
one person to another person.
1:36:38 PM
SENATOR KIEHL addressed a separate topic. He requested more
information about the "causing death" language. He queried the
frequency that "causing death" was moved from manslaughter to a
murder charge.
1:37:19 PM
MR. SKIDMORE replied that the "causing death" provision is
rarely used. He noted the difficulty in establishing the
elements of the crime. The subsection of manslaughter was
enacted in 2006 and since January 1, 2018 just seven people had
been charged. He shared the story of a case in 2019 when four
people were charged with the death of a fifth person. He
explained that two of the four people charged simply shared the
drugs with their friend and agreed to cooperate and testify
against the person who sold them the drugs. The person who sold
the drugs was convicted of manslaughter and sentenced to seven
years.
1:40:01 PM
MR. SKIDMORE presented another case involving a person providing
drugs to another person who died from an accidental overdose.
The person did not sell the drugs, merely shared them. When the
person began to overdose, the friend sharing the drugs neglected
to call for help early enough and instead tried to revive the
person with less than adequate means. Mr. Skidmore spoke
graphically about the misguided attempts to revive the person
overdosing before calling for medical help. The person was
ultimately convicted for providing, not selling, a controlled
substance because of the extenuating circumstances in the case.
1:42:39 PM
SENATOR KAUFMAN pointed to the lack of parsing of substances in
the proposed legislation. He assumed that if a substance is
capable of causing death, then it applies to the bill.
MR. SKIDMORE agreed with Senator Kauffman's assessment. He
stated two rationales for the lack of labeling controlled
substances in the bill. He stated that the drug fentanyl is
responsible for significant increases in overdose deaths in
Alaska. Fentanyl is often mixed with a host of other drugs. He
added that a second drug, methamphetamine, also plays a
significant role in overdose deaths. He stated that the
controlled substances contributing to overdose deaths change
over time. Drug overdoses are often attributed to a combination
of drugs. He stated that heroin plus psychostimulants were the
two most common lethal multidrug combinations found in 18.6
percent of all drug overdose deaths. He added that synthetic
narcotics combined with psychostimulants resulted in an
additional 18.4 percent of overdose deaths. He stated that a
combination of drugs contributed to more than 58 percent of all
overdose deaths. In 34 percent of all overdose deaths, there
were three or more drugs used together. He stated that the
manslaughter statute was originally drafted to encompass all
drugs without parsing out drug definitions.
1:45:03 PM
SENATOR KAUFMAN wondered if the word "ingestion" on page 2, line
24, meant voluntary or involuntary absorption of a substance. He
proposed that the word "mean should read "means" for proper
grammar and vocabulary.
1:45:33 PM
MR. SKIDMORE agreed with the terminology correction.
1:45:54 PM
CHAIR CLAMAN commented on public testimony offered on 3/22/2023.
He recalled hearing one testifier state that the "street-level
dealer who sold to her son should not go to jail, but instead
should receive treatment." The testifier believed that the
manufacturer of the drugs was more culpable and should be going
to jail. He wondered if the bill neglected to provide that
distinction.
1:46:48 PM
MR. SKIDMORE perceived the testimony differently. He recalled
that the testifier believed that the law should address the
person who sold the drugs. He perceived that the testifier
sought to prosecute the dealers rather than those who were
simply sharing controlled substances. He agreed that the goal of
the legislation is to prosecute those selling controlled
substances, then he revisited his earlier example where a person
was prosecuted for neglecting to solicit medical help for an
accidental drug overdose. He added that a person sharing drugs
might be held accountable during some incidences where
additional conduct is harmful. He stated that prosecutors must
make discretionary decisions with the laws as they exist now and
with any future changes that the legislature offers.
1:48:10 PM
CHAIR CLAMAN called attention to the street-level dealer with
addiction problems. He queried the justification for the milder
treatment of a street-level dealer compared to one involved in
the manufacture or larger-level distribution. He asked if the
bill makes a distinction between the two hypothetical drug
dealers.
1:48:55 PM
MR. SKIDMORE referred to other elements of Alaska law, which are
known as aggravators. These include a person gaining a
substantial pecuniary interest from the distribution of
narcotics under AS 11.71. He opined that the aggravator or
harsher sentence should be applied in some circumstances. He
noted that the sentence range for murder in the second degree is
a minimum of 15 years and a maximum of 99 years. He pointed out
that the bill does not provide the distinctions mentioned by
Senator Claman. The law allows for the distinctions to be drawn
when it comes time for the court to assess the appropriate
sentence or penalty.
1:49:50 PM
CHAIR CLAMAN queried the minimum and maximum sentence for
manslaughter under the current statute.
1:49:55 PM
MR. SKIDMORE replied that manslaughter is a class A felony
without a mandatory minimum sentence. The manslaughter charge
has a presumptive sentence, which means that the sentence is
typical but might depart from traditional sentencing due to
aggravators or mitigators. He noted that a first-time sentence
for manslaughter has a presumptive range of four to seven years
and a maximum of twenty years.
CHAIR CLAMAN asked if an addicted street-level dealer should be
sentenced to four-to-seven years, while a person convicted of
manufacturing controlled substances should be sentenced to a
minimum of 15 years for murder in the second degree. He queried
a simple way to distinguish the two types of charges and
sentences.
1:51:08 PM
MR. SKIDMORE said he was unsure whether a focus on manufacturing
would lead to the proper sentencing distinctions because
manufacturing and delivery address different stages of the
process. He noted that the term manufacture would apply if the
drugs originated in Mexico with a drug cartel, where the cartel
would be subject to the murder charge, while all the other
entities involved in distribution would be charged for delivery.
Some analysis seeks to differentiate the quantity of the drug,
which provides challenges because fentanyl is potent in very
small quantities. He stated that a small quantity of
methamphetamine or other drug does not pose the same risk to an
individual. He highlighted the difficulties in differentiating
the levels of controlled substances. He stated that Alaska law
approaches the issue by using aggravators that review a
substantial monetary gain. He regretted that he did not have
alternative suggestions for labeling and sentencing distribution
versus manufacturing of controlled substances as it applies to
SB 64.
1:53:24 PM
CHAIR CLAMAN asked about page 3 and the proposal to eliminate
good-time deduction for a felony drug offense. He wondered why
every felony drug offense would lose the good-time options in
prisons.
1:53:59 PM
MR. SKIDMORE replied that the rationale behind the provision is
that fentanyl is frequently mixed with other drugs. Fentanyl is
the cause of many overdose deaths, which leads to the stiff
penalty. He stated that the provision discusses mandatory versus
discretionary parole. He stated that mandatory parole relates to
good behavior in custody, which is a tool utilized by the
Department of Corrections to manage behavior. He added that the
administration was amenable to more conversation about this
aspect of the proposed legislation.
1:55:36 PM
SENATOR KIEHL asked if a person was not eligible for good-time
would they spend less time in supervision when released from
prison.
1:56:22 PM
MR. SKIDMORE said yes and added that mandatory versus
discretionary parole means that a person is under supervision
after release from prison. Without the good-time option, the
person is in jail versus being supervised outside.
1:57:16 PM
CHAIR CLAMAN provided a hypothetical situation where a person
has a thirty-year sentence and is eligible for good-time release
after ten years and mandatory parole after twenty years. He
asked if the hypothetical situation could be applied to Senator
Kiehl's question.
1:58:03 PM
SIDNEY WOOD, Deputy Director, Division Operations, Department of
Corrections, Palmer, Alaska, asked to hear the question again.
CHAIR CLAMAN repeated Senator Kiehl's question related to good-
time release on parole and longer community supervision. He
provided the hypothetical situation where a person is in jail
with a thirty-year sentence and eligible for good-time release
after 10 years and mandatory parole at 20 years.
MR. WOOD noted the discrepancy in terms. The good-time release
is known as discretionary release. He explained that the person
could not be released at the twenty-year mark without the good-
time or discretionary release provision. The hypothetical person
would instead be released to mandatory parole for the last ten
years of the sentence. If the person were released at any point
before the two-thirds mark or twenty-year mark on a
discretionary release, the good-time would have no impact on the
supervision length. He agreed with Mr. Skidmore's comment that
removing the good-time release means that a person will spend
more time in prison versus out on supervision if mandatory
parole was part of the sentence. He noted that without a good-
time option, a prisoner would face probation and zero
supervision following release.
CHAIR CLAMAN asked Mr. Wood to focus on the good-time provision
and Senator Kiehl's question.
2:01:09 PM
SENATOR KIEHL requested additional information about the policy-
level issue including managing offenders in prison. He
understood that good-time provisions tend to encourage better
behavior. He wondered about the lost opportunity to reintegrate
people into the community. He wondered about the desirability of
less supervision following release.
2:02:24 PM
MR. WOOD replied that he could not comment on the desirability
of either option. He remarked that the Department of Corrections
has two community placement programs that do not rely on good-
time to qualify, including sentenced electronic monitoring and
furlough.
MR. SKIDMORE agreed with Senator Kiehl about the importance of
opportunities to reintegrate into the community. He described
various types of parole including discretionary parole,
mandatory parole, and probation. He stated that the bill limits
one avenue for supervision after release while leaving other
options in place. He restated the importance of community
reintegration.
2:04:07 PM
CHAIR CLAMAN revisited his hypothetical scenario with a prisoner
eligible for discretionary parole or good-time release. Removing
the good-time option mandates that a person remains in prison
for twenty years with ten supervised years outside. He wondered
if the bill might be removing meaningful opportunities for
supervision by eliminating the availability of the good-time
provision.
2:05:17 PM
MR. SKIDMORE agreed that the bill creates limitations for one
avenue of community supervision following release from prison,
but it retains four valid options
CHAIR CLAMAN asked about probation. He understood that probation
is appropriate when a person has completed the mandatory term of
prison.
MR. SKIDMORE agreed with the statement.
2:06:19 PM
SENATOR GIESSEL commented on the seriousness of the controlled
substances manufactured and delivered. She pointed to the recent
cases Mr. Skidmore discussed and noted that the people
committing the crimes described are often addicts themselves.
She stated that the longer a person remains in a controlled
environment, the more likely they are to receive addiction
treatment. She believed that the elimination of good-time
deduction provisions from the bill provided greater benefits to
an addicted prisoner.
2:08:38 PM
SENATOR KIEHL commented that the majority of prison treatment
options are offered at the end of the time served. He recalled
two recommendations in the last six months including the
Governor's Council on Opiate Remediation and the Alaska Opiate
Response. Both reports state the need for additional supervision
following criminal sentences. He noted that neither
recommendation calls for extended sentences. He shared his
struggle to square the reports' recommendations with the
language in the bill.
2:10:15 PM
CHAIR CLAMAN held SB 64 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 64 version A 2.8.2023.PDF |
SJUD 3/22/2023 1:30:00 PM SJUD 3/31/2023 1:30:00 PM |
SB 64 |
| SB 64 Transmittal Letter version A 2.7.2023.pdf |
SJUD 3/22/2023 1:30:00 PM SJUD 3/31/2023 1:30:00 PM |
SB 64 |
| SB 64 Highlights version A 2.8.2023.pdf |
SJUD 3/22/2023 1:30:00 PM SJUD 3/31/2023 1:30:00 PM |
SB 64 |
| SB 64 Sectional Analysis version A 2.8.2023.pdf |
SJUD 3/22/2023 1:30:00 PM SJUD 3/31/2023 1:30:00 PM |
SB 64 |
| SB 64 Additional Document - Alaska Department of Health Drug Overdose Mortality Update 2021 7.25.2022.pdf |
SJUD 3/22/2023 1:30:00 PM SJUD 3/31/2023 1:30:00 PM |
SB 64 |
| SB 64 Additional Document - Controlled Substances Reference Chart 3.1.2023.pdf |
SJUD 3/22/2023 1:30:00 PM SJUD 3/31/2023 1:30:00 PM |
SB 64 |
| SB 64 Opposing Document - Letters Received as of 3.30.2023.pdf |
SJUD 3/31/2023 1:30:00 PM |
SB 64 |
| SB 64 Fiscal Note DOA-OPA 2.1.2023.pdf |
SJUD 3/22/2023 1:30:00 PM SJUD 3/31/2023 1:30:00 PM |
SB 64 |
| SB 64 Fiscal Note DOA-PDA 2.1.2023.pdf |
SJUD 3/22/2023 1:30:00 PM SJUD 3/31/2023 1:30:00 PM |
SB 64 |
| SB 64 Fiscal Note DOC-IDO 1.28.2023.pdf |
SJUD 3/22/2023 1:30:00 PM SJUD 3/31/2023 1:30:00 PM |
SB 64 |
| SB 64 Fiscal Note DFCS-JJ 1.30.2023.pdf |
SJUD 3/22/2023 1:30:00 PM SJUD 3/31/2023 1:30:00 PM |
SB 64 |
| SB 64 Fiscal Note DPS-ABI 1.24.2023.pdf |
SJUD 3/22/2023 1:30:00 PM SJUD 3/31/2023 1:30:00 PM |
SB 64 |
| SB 64 Fiscal Note LAW-CRIM 1.4.2023.pdf |
SJUD 3/22/2023 1:30:00 PM SJUD 3/31/2023 1:30:00 PM |
SB 64 |