Legislature(2023 - 2024)BUTROVICH 205

03/31/2023 01:30 PM Senate JUDICIARY

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Audio Topic
01:30:59 PM Start
01:31:33 PM SB64
02:10:41 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
-- Testimony <Invitation Only> --
+ Bills Previously Heard/Scheduled 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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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