Legislature(2017 - 2018)BUTROVICH 205
05/08/2018 04:00 PM Senate RULES
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| Audio | Topic |
|---|---|
| Start | |
| HB312 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 312 | TELECONFERENCED | |
HB 312-CRIMES AGAINST MEDICAL PROFESSIONALS
5:20:13 PM
CHAIR MEYER announced consideration of HB 312 [version 30-
LS1225\O was before the committee]. He said the discussion today
is about adding other crime bills to HB 312 and the sponsor was
agreeable to talking about that.
REPRESENTATIVE KELLY moved to adopt SCS HB 312(RLS), version 30-
LS1225\M.
CHAIR MEYER objected for discussion purposes.
REPRESENTATIVE CLAMAN, sponsor of HB 312, Alaska State
Legislature, Juneau, Alaska, said the Senate Committee
Substitute for HB 312 reflects what Alaskans want in public
safety issues and continues their commitment to find ways to use
public safety dollars wisely. The sectional analysis followed.
5:22:34 PM
Section 1 provides the legislative intent stating that the 48-
hour hold on defendants with out-of- state criminal histories
will no longer apply once the assessment tool includes those
convictions with charges.
Sections 2-7 address the concepts initially introduced in SB
146, HB 291, and HB 387 regarding the attorney general (AG)
scheduling controlled substances.
Section 2 designates the president of the Board of Pharmacy as
the chair of the Controlled Substances Advisory Committee.
Section 3 makes conforming changes to Controlled Substance
Advisory Committee enabling statute.
Section 4 adds a new duty to the Controlled Substance Advisory
Committee, which is to advise the attorney general on the need
to schedule substances for emergency regulation.
Section 5 allows the attorney general to schedule substances by
emergency regulation and clarifies that the AG may schedule a
substance by emergency regulation only if the substance is
currently listed on the Federal Controlled Substance Schedule.
REPRESENTATIVE CLAMAN commented that the original version of the
bill didn't place that limit on the AG's authority; she could
have listed any substance. The attorney general shall also post
a notice on the Alaska online public notice system 60 days
before the effective date of an emergency regulation that
schedules a substance, and the notice must include written
findings.
5:24:01 PM
Section 6 defines "controlled substances" to include those
scheduled by the attorney general by an emergency regulation.
Section 7 defines "substance" to include a drug-controlled
substance or immediate precursor in the schedule set out in
statute or that is scheduled by the attorney general by
emergency regulation.
Sections 8&9 are the part of HB 312, which is where all this
started: crimes against medical professionals. Section 8
establishes that a peace officer may arrest a person without a
warrant when the peace officer has probable cause to believe
that the person has committed an assault in the fourth degree, a
misdemeanor, at a health care facility and that person was not
seeking medical treatment at the facility or was stable enough
for discharge. He noted that the police officer's authority to
arrest without a warrant extends here to misdemeanors without
any change. The present law today specifically allows peace
officers to arrest for probable cause for any felony assault
without a warrant.
Section 9 establishes the definition of "health care facility."
Sections 10-16 address out-of-state convictions in the context
of pretrial release, an area in which the public has had a lot
of interest.
Section 10 allows the prosecution additional time to demonstrate
that the release of the person will not reasonably assure their
appearance in court or the safety of the community if the person
is to be held up to 48-hours. They are allowed a 48-hold if the
person has an out-of-state criminal conviction or charge that
has not been used in determining the person's risk level in the
risk assessment tool.
5:26:03 PM
The whole topic of the pretrial risk assessment tool and the
topic of out-of-state felonies is central to issues that have
been under discussion. They have learned that giving judges
unfettered discretion in making pretrial release decisions was
not improving public safety. Detailed analysis of 20,000 Alaska
cases from 2014 - 2015, which was studied before the passage of
any justice reform legislation, showed that 37 percent of those
on pretrial release were arrested for new crimes. This historic
level of new offenses while on pretrial release was simply not
acceptable.
REPRESENTATIVE CLAMAN explained that Alaska has a long history
of restricted judicial discretion. When judges were inconsistent
in their felony sentencing decisions from one judge to another
and from one region to another in the 1960s and 1970, a
comprehensive sentencing reform structure was enacted in 1980 to
ensure more consistent sentences and established mandatory
minimums and sentencing ranges for all classes of felonies.
Similarly, when judges were too lenient with DWI offenders and
Mothers Against Drunk Driving became much more involved, the
legislature changed the laws to require mandatory minimum
sentences for first time and repeat offenders, another example
of restricting judicial discretion.
This bill and the existing justice reform legislation places
similar limits on judges' discretion. The good news is that
their investment in stronger pretrial supervision is already
showing public safety improvements. Data from April of this year
shows that of the individuals under pretrial supervision, less
than 5 percent had active arrest warrants. That's a substantial
improvement from the new offense rate of 37 percent when judges
had unfettered discretion.
5:28:17 PM
Section 11 makes conforming changes to clarify that a judge may
order a person released on his own recognizance or upon an
unsecured bond unless other provisions of the statute provide
otherwise.
Section 12 makes conforming changes so that persons who have an
out-of-state criminal charge or conviction that has not been
used in determining the person's risk level by the risk
assessment tool will not be required to be released on their own
recognizance or upon an unsecured bond.
Section 13 changes the mandatory release on their own
recognizance for low risk class C felonies to presumptive own
recognizance (OR). Low risk misdemeanors and moderate risk
misdemeanors remain mandatory release on their own recognizance
except when modified by out of state criminal history as
described earlier.
5:29:15 PM
REPRESENTATIVE CLAMAN commented that the misdemeanor crimes
against the person, misdemeanor sex offenses, misdemeanor crimes
involving domestic violence, misdemeanor DWI offenses,
misdemeanor failure to appear offenses, and misdemeanor
violation of conditions of release are not included in the
mandatory release on their own recognizance. So, all the violent
offenses against the person are not included in any of the
mandatory release provisions.
Section 14 makes conforming and technical changes to the
mandatory conditions of release.
Section 15 makes conforming changes to clarify that the court
shall consider out of state convictions when determining the
conditions of release.
Section 16 changes the law so that when a defendant who would
otherwise be mandatorily released on his own recognizance has an
out-of-state criminal conviction or a charge, the judicial
officer may require monetary bail upon a finding that there is
clear and convincing evidence that other conditions are not
sufficient to ensure public safety.
5:30:26 PM
Section 17 addresses the bills introduced as SB 149 and HB 294
regarding surcharges for criminal offenses and increases the
felony surcharge upon conviction from $100 to $200. It increases
the surcharge for a misdemeanor DUI offense from $75 to $150;
increases the surcharge for a misdemeanor or a violation of a
municipal ordinance if a sentence of incarceration may be
imposed for the misdemeanor or ordinance violation other than a
provision identified in Sections 2 increasing the surcharge from
$50 to $100. It increases the surcharge for misdemeanors and
violations or infractions under state of municipal code where
incarceration may not be imposed from $10 to $20. In rough
terms, this means all the criminal surcharges are doubled.
5:31:08 PM
Section 18 returns language that address crimes against medical
professionals to the bill. It adds an "aggravated" to Alaska's
felony sentencing statute when a defendant commits the offense
at a health care facility and knowingly directs the conduct
constituting the offense at a medical professional during or
because of the medical professional's exercise of their
professional duties.
5:31:33 PM
Sections 19-21 return to the issue of out-of-state convictions
and pretrial release. Section 19 authorizes pretrial services
officers to file complaints with the court, arrest with or
without a warrant, and request the court to issue warrants
related to any violation or conditions of release.
REPRESENTATIVE CLAMAN said the current law as passed by the
legislature has led to some dispute within the trial courts.
Some courts have ruled that pretrial services officers have the
authority to file complaints with the court while other courts
have rules that do not have that authority for them. This
exercise of judicial discretion highlights the need for the
legislature to step in from time to time and remove judicial
discretion by, in this instance, confirming the authority of
pretrial services officers to file complaints with the court.
Section 20 makes conforming changes to ensure pretrial services
officers can file complaints with the court, arrest with or
without a warrant, and request the court to issue warrants
related to a violation of conditions of release.
Section 21 allows the attorney general to schedule a substance
by emergency regulation.
Section 22 requires notice of an emergency regulation scheduling
a controlled substance to be published on the Alaska online
public notice system.
Sections 23-28 all relate to the AG controlled substance
authority. Section 23 requires the public notice of an emergency
regulation scheduling a controlled substance to include a
summary of the AG's compliance with the procedures set out in
proposed AS 11.71.125.
5:33:25 PM
Section 24 exempts the procedure for scheduling a controlled
substance by emergency regulation from the regular emergency
process.
Section 25 adds authority to issue regulations to schedule a
controlled substance by emergency regulation to the current
emergency regulation procedure.
Section 26 exempts the procedure for scheduling a controlled
substance by emergency regulation from the 120-day time limit
for other emergency regulations.
5:33:56 PM
Section 27 provides that a substance scheduled by the AG for
emergency regulation will remain on the schedule for a period
not to exceed 1,095 days (3 years) unless the legislature
schedules the substance by law or annuls the regulation by law.
This is one of the changes suggested originally by the governor.
There was a real interest in having the legislature maintain its
authority to have the final word on scheduling the substances,
but they wanted the AG to have the ability to do it quickly, but
if the legislature chose not to act after three years it would
become unlisted, and during that three-year period the
legislature could act as quickly as it wanted. If it's a bad
idea, the legislature would not have to wait three years to
unlist it. Basically, final authority would come to the
legislature, but this provision would give the governor and the
AG the flexibility to list substances more quickly.
5:35:06 PM
Section 28 amends the state policy on emergency regulations to
clarify that the section does not limit the AG's authority to
schedule the controlled substance by emergency regulation.
5:35:16 PM
Sections 29-32 address court changes, applicability, and
conditional effective dates. Section 29 involves the indirect
court rule amendment. Sections 11-15 have the effect of changing
Court Rule 41 by changing release conditions for defendants so
there would be changes to the Court Rule based on section 29.
Section 30 provides applicability provisions. The act applies to
offenses committed on or after the effective date.
5:35:46 PM
Section 31 is the conditional effect that the act only takes
effect if the indirect Court Rule amendment receives a two-
thirds majority vote.
Section 32 provides an effective date that only sections
applicable to pretrial release will take effect immediately.
That concluded the sectional analysis.
5:36:14 PM
CHAIR MEYER said he brought up a good point that HB 312 has
several other bills rolled into it and that they were originally
introduced by the governor and have since been enhanced in the
House and Senate Judiciary Committees and then rolled into one
bill.
5:36:50 PM
CHAIR MEYER removed his objection and announced that SCS HB
312(RLS), version 30-LS1225\M, was adopted.
SENATOR GARDNER asked if a substance is currently on the
federally controlled substance schedule, it's not automatically
on the state-controlled substance schedule. Does it have to be
incorporated?
REPRESENTATIVE CLAMAN answered that is correct. Before this
bill, any addition to the state-controlled substance list had to
be done by an act of the legislature. For example, when spice
first came out, it took a while for the legislature to approve
it, so only the federal government could prosecute spice. This
bill would allow the attorney general, after the federal
government has acted, to say she wants to prosecute spice, too.
SENATOR GARDNER said section 18 says, "knowingly directed the
conduct" and comes to the heart of the concern about the
original bill, which has to do with people who are in a mental
health crisis, under the influence of some substance, or
something has happened to them where they wouldn't be held
responsible for the things they say and do and asked if this is
the aspect that might give comfort to vulnerable people.
REPRESENTATIVE CLAMAN replied that was the intent of the bill
and crimes against medical professionals included an
automatically enhanced sentence. So, if certain factors were
proved, the sentence would be higher. But because of the concern
about what happens to someone who is not in their right mind,
even if it could be established, it would be an aggravating
factor that the judge might choose to apply or not.
SENATOR GARDNER asked him to elaborate on the indirect court
rule amendment in section 29 that talks about changing release
conditions for defendants. Is that the mandatory OR releases
that are being changed?
REPRESENTATIVE CLAMAN replied that it's only the changes that
are in the bill. The changes to the court rule would involve two
different parts: one would be changing the mandatory own
recognizant (OR) release for class C felonies that would now be
presumptive OR release but not mandatory. The other changes
relate to information regarding out-of-state charges and
convictions, which previously had not been considered. The
expectation with the Department of Corrections (DOC) is that the
assessment tool would incorporate those out-of-state charges and
convictions by the end of the year, and at that point once they
are incorporated in the tool, that wouldn't be a basis to go
outside the analysis. Today, once the bill passes, the judge
would be able to go to a presumptive OR based on those out-of-
state charges and convictions.
5:41:18 PM
SENATOR GARDNER asked him to describe how pretrial is working
now.
REPRESENTATIVE CLAMAN answered that the Department of
Corrections (DOC) has described the pretrial risk assessment
tool and the use of the pretrial services officers as showing
improvements already. Sixty pretrial services people have been
hired and trained. Part of what they do is supervise people who
are charged with crimes for more consistency. So, they are
tracking and paying more attention to folks on pretrial release.
Practitioners in the field have said the noticeable change,
particularly on Monday mornings after the weekend, is over who
is still in jail. More folks with prior histories and charged
with violent crimes are being seen in jail.
5:43:47 PM
CHAIR MEYER said one concern has been not being able to see out-
of-state criminal charges, which they can now do. And secondly,
this bill provides the judge discretion in sentencing class C
felonies, especially for car theft that is prevalent in
Anchorage now. For some this bill doesn't go far enough, and he
gets that. He is still not comfortable with how lower and
moderate level misdemeanors are dealt with and asked what
Representative Claman's response would be to that.
REPRESENTATIVE CLAMAN replied that auto thefts are part of the
reason they discussed whether to take any category of mandatory
OR and put it into presumptive OR. The dominant thing they heard
from the community about auto theft was that judges had to have
discretion. Regarding the misdemeanors, the most important part
to communicate to the public is that the group of misdemeanors
that would qualify as low and moderate risk, by definition,
don't include violent crimes. All the places that put the public
at greatest risk and have the greatest potential for injury are
the crimes that will never be mandatory OR. They are only
talking about folks that have very limited criminal history and
the crimes they are charged with are non-violent.
CHAIR MEYER assumed even for non-violent misdemeanors that the
more times a person gets picked up the higher they rate in the
risk assessment category and ultimately will get to the higher
level where the judge will have discretion.
REPRESENTATIVE CLAMAN said that was exactly correct.
5:46:49 PM
SENATOR MICCICHE asked if the effects of alcohol or substance
abuse would be a defense for a defendant who "knowingly directed
the conduct" at a health care facility. Does that have a
personal responsibility requirement?
REPRESENTATIVE CLAMAN answered that he couldn't quote the
statute, but one can't claim intoxication as a defense to
knowingly doing something. It is an aggravating factor at
sentencing as opposed to an element of the crime, itself, as
opposed to someone who is suffering from a psychiatric disorder.
He also reminded them that someone can be arrested there would
need to be a finding that they were stable for discharge, which
addresses both physical, psychiatric, and psychological issues.
5:48:36 PM
REPRESENTATIVE KELLY moved to report SCS HB 312(RLS), version
30-LS1225\M, from committee with individual recommendations and
forthcoming fiscal note(s). There were no objections and it was
so ordered.
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