HOUSE BILL NO. 246 "An Act restricting the release of certain records of convictions; and providing for an effective date." 10:13:54 AM REPRESENTATIVE JONATHAN KREISS-TOMKINS, SPONSOR (via teleconference), introduced the legislation that aimed to reflect the new law and consensus in Alaska around the decriminalization of marijuana and removed the convictions of simple marijuana possession from public view. He reported that the legislation had attracted support from both sides of the isle and his office had worked closely with the administration. He believed it was a timely policy change to make, especially as the state settled into the new post-marijuana decriminalization. 10:15:44 AM CLAIRE GROSS, STAFF, REPRESENTATIVE JONATHAN KREISS- TOMKINS, explained the bill had two distinct parts, which addressed the two primary ways employers and members of the public access criminal justice information in Alaska. The first part pertained to the Alaska Court System. She highlighted that the two parts were separate, one was automatic and the other required a petition process. She detailed that the court system would automatically remove the very specific type of minor marijuana conviction from CourtView at no cost. She noted the department would be able to absorb the cost. The bill applied to convictions where a person was convicted for less than one ounce of marijuana, they were 21 years of age or older at the time of the offense, and they were not convicted of any other criminal charges in that case. She explained the specific convictions had been selected due to some CourtView technology protocol requirements. She explained the court system could not take one charge or conviction out of a case on CourtView, it had to process one entire case at a time. Ms. Gross addressed the second portion of the bill pertaining to the Department of Public Safety (DPS). She detailed that DPS maintained and worked from the Alaska Public Safety Information Network (APSIN) database. She explained that employers could use the APSIN database for formal background checks. For example, the system could be accessed by employers outside the state, for jobs requiring state licensure, for people applying to work in law enforcement, and other. She elaborated that any employers could request an "any persons" report from DPS. She explained that individuals with past convictions that met the aforementioned requirements could petition DPS to have the specific information in their background checks shielded from view. She clarified that the information would not be officially sealed, but shielding the information was functionally the same thing. She noted that any member of the criminal justice system would continue to have access to the information. Ms. Gross relayed that DPS would need one full-time employee for one year at a cost of approximately $100,000 in order to work through the cases and respond to petitions. She reported there was some cost associated with updating the APSIN software to access the records and shield them from view. 10:20:18 AM Representative Josephson asked if it would be a friendly amendment if the bill covered 18 to 20 year olds even though the law did not protect their right to smoke marijuana. Ms. Gross replied that the bill aimed to address things that Alaskans had determined were no longer a crime. She stated the problem with including people under the age of 21 was it was still a crime in Alaska; therefore, it was not something the sponsor's office wanted included in the bill. Representative Josephson noted he would like to ask the court system a question at some point. Co-Chair Merrick replied affirmatively. Representative LeBon stated in his "banking days" he had a customer that required drug (including marijuana) testing for his employees due to the nature of his business. He asked if the employer should know about a person's background and use of marijuana when going into a hiring process where a company policy was in place to test for marijuana use (whether the use of marijuana was legal or not). Ms. Gross replied that under the legislation, the answer was no. She reasoned that being high at a job or testing positive for marijuana at a job where it was not allowable was a different situation than a past minor conviction. 10:22:24 AM Representative LeBon appreciated the answer. He asked if it would be fair for an employer to ask a future employee if they had a prior legal conviction or incident of use when the employer had told the future employee there would be testing going forward. Ms. Gross asked for clarification on the question. Representative LeBon was trying to think the bill through from the perspective of a private employer with a drug testing program due to the nature of the work where a sober workforce was important. He asked if it was relevant information for the hiring process to know about an applicant's past or to provide notice to a potential employee the business would be testing for marijuana use. He remarked that his comment was more of a statement than a question. 10:23:49 AM Vice-Chair Ortiz asked if he was correct in understanding that for persons under the age of 18 nothing about a person's criminal record ever met public view. Ms. Gross deferred the question to the court system. NANCY MEADE, GENERAL COUNSEL, ALASKA COURT SYSTEM, answered that if someone under the age of 18 was accused of a crime, the Division of Juvenile Justice generally handled the case. She elaborated that the proceedings were part of juvenile delinquency, and the cases were confidential. She explained that the court system did not file the information on CourtView and generally people other than law enforcement did not have access to the information. Vice-Chair Ortiz stated his understanding that under the legislation, people between the ages of 18 and 21 would not be protected and their records would continue to be available in the current form. He asked if the court system would be averse to providing an avenue to shield the records for the specific age group. 10:26:45 AM Ms. Mead answered that the court system would not take a position on a policy call made by the legislature. For example, several years back, the legislature decided that minor consuming alcohol cases should not appear on CourtView if they were not charged with other criminal cases (because of the limitations on how the court system could and could not post things on CourtView). The court system followed the policy and minor consuming charges for individuals under the age of 21 were not posted on CourtView. She relayed the court system would be able to do the same for marijuana use if it was the policy call made by the legislature. Representative Josephson stated he had come to have more sensitivity about the court's rights over CourtView and whether it exists at all because the tool belonged to the court system, not the legislature. He considered the scenario where the bill passed and directed the court system to do or not do certain things with CourtView. He asked if it would be viewed by the court system as an encroachment on its jurisdiction. Ms. Mead appreciated the sensitivity. She stated it depended on the level of the infringement on CourtView. She detailed that CourtView was the court system's case management system and the court made numerous decisions about the database as its own policy. She elaborated that starting in 2015 the legislature required any criminal case ending in dismissal or acquittal to be removed from CourtView. She informed the committee it had been a strong policy at the time. She expounded that the supreme court had not simultaneously considered the same sorts of policies and the court system did not consider it an infringement because it had been easy to do and there was a strong view on the part of the legislature that it should happen. She explained that the current bill would be worded fairly similarly and globally the court system could remove things from CourtView if the legislature desired. She noted it was not currently an issue the supreme court was focused on. She remarked it would be different if the supreme court was in the midst of considering changes to CourtView in a more global manner or wanted to make a review of everything on or off of the database. She explained that during that time period she may have a different reaction to the legislature stepping in and making some of the decisions being considered by the court. Representative Josephson asked if the court system could decide it no longer wanted to have the CourtView system. Ms. Mead answered affirmatively. 10:30:23 AM Representative LeBon remarked that Alaska was not the only state to legalize the use of marijuana. He asked if it was a trend among other states that had legalized marijuana use to clear the court records of prior use as described in the bill. Ms. Mead replied that Ms. Gross had data on the topic. Ms. Gross replied that the majority of other states that had legalized marijuana had enacted a much broader version of something like HB 246. She explained that other states were excusing felonies and reducing charges. She elaborated that many states that had [the legalization of marijuana on] a ballot initiative had included the changes [similar to those proposed in the current bill] automatically. She stated that Alaska was behind the times compared to other states. She added that the majority of states that had not legalized marijuana had taken some type of step in the direction taken by the bill. Representative LeBon was interested in a summary of states that had backed off of the reporting and had cleared record to understand how far behind Alaska was. 10:31:52 AM Representative Wool asked about individuals convicted of minor marijuana crimes and not charged with another crime in the same incident. He had heard in the past there were not many standalone marijuana crimes. He understood dealing and cultivation were likely not minor crimes. Ms. Mead clarified that the bill looked at people who were not convicted of any other charges in the case. She explained that other charges may have been filed in the case. Under the legislation, the court system would remove from CourtView, cases where possession of under an ounce of marijuana was the sole conviction in the case. She relayed the estimated number of cases that would be removed from CourtView was somewhere between 700 and 1,000. She added that defendants needed to be over 21 years of age. She noted that the bill had been around in different iterations brought by different legislators in the past. She detailed that in the past there had been a question about what happened in cases where a person had been charged with other things and it had been dealt down to marijuana. The court system had been asked for the number of the cases with no other charges. The court system had found the number to be approximately half with other charges in the case. She clarified that the current bill only applied to cases where there were no other convictions apart from the marijuana charge. She relayed that the court system could count the specific cases readily. 10:34:05 AM Ms. Gross explained that DPS and the court system were working from different numbers because they did things differently and had different constraints related to how the data was originally stored. She explained the number was very different from the DPS side, which had identified 8,500 records in the state's criminal case history repository. She elaborated that some of the people had died and some of the people accounted for more than one of the convictions. She believed when factoring in the information, the number of actual people who would benefit from the legislation was around 8,000. Representative Wool stated his understanding that the bill applied to minor marijuana crimes without any other convictions attached. He asked for verification that the only charge seen on CourtView was the marijuana charge and it included no other crimes such as a DUI. Ms. Mead clarified that it was the only conviction that would be seen on CourtView. She explained that a person may have been originally charged with four things, but only convicted on the marijuana charge. Representative Wool referenced Ms. Mead's earlier statement that minor consumption of alcohol cases (below the age of 21) were not listed on CourtView. He asked if the charges associated with minor consumption of alcohol or marijuana were similar. Ms. Mead replied, "No." She elaborated that minor consuming alcohol was a minor offense and not considered a crime. She explained that the offense was a violation carrying a ticket cost of $500. Individuals had the ability to reduce the fine to $250 if they did a certain training. She clarified that possession of marijuana was still a crime for individuals under the age of 21. She elucidated that the possession of marijuana was still a crime on the books under Title 11 for individuals over the age of 21, but it was a defense for individuals over 21 years of age in possession of one ounce. 10:37:49 AM Representative Wool asked for verification that under the bill, individuals aged 18 up to 21 who were caught with possession of marijuana would not have their record expunged. Ms. Mead confirmed that the court system would not review those cases from CourtView. Co-Chair Merrick asked Ms. Mead to review the court system's fiscal note. Ms. Mead reviewed the department's zero fiscal note. She detailed that the court system intended to identify the specified cases and already had a fairly global list. The department would remove cases that contained conduct that fell under the bill from CourtView. She reported that the bill sponsor agreed to a delayed effective date to allow time for the court system to implement the change without additional resources. She noted that making the removal of the cases automatic instead of via petition had been selected because it did not require additional resources. She cautioned there may be a small number of errors because sometimes the court system could identify the cases that came in under the particular subsection of possession of under one ounce of marijuana, in addition to a person's birthdate and offence date. She explained that sometimes the prosecuting authority did not provide a precise subsection and provided a more global charge (e.g., 11.71.060 without specifying which subsection). She clarified that the particular cases would not be automatically removed from CourtView because they contain conduct other than that described in Section 4 of the bill. Under the particular circumstances, the court system may miss someone in the automatic process. She explained that the person would be able to fill out a form to notify the court system they were improperly on CourtView. The court system staff would have to assess the cases individually. She noted that if the system was flooded with forms, there may be some sort of fiscal impact in the future. She added she did not foresee it being an issue. 10:40:25 AM Representative Josephson asked for verification that the change would not prevent law enforcement from knowing an entire history of unconvicted charges if they were looking for pattern and practice, proper propensity evidence, and MO evidence. Ms. Mead answered that law enforcement should not be relying on CourtView for access to official criminal records in any event. She noted that law enforcement would be impacted by Sections 1 through 3 of the legislation, which did not pertain to CourtView. She noted that law enforcement would still have full access to the records. Sections 1 through 3 would only shield the records from the "any persons" requests. 10:41:23 AM Co-Chair Merrick asked the Department of Public Safety to review its fiscal note. KELLY HOWELL, SPECIAL ASSISTANT TO THE COMMISSIONER, DEPARTMENT OF PUBLIC SAFETY, relayed that DPS, through an analysis of the records contained in APSIN, identified approximately 8,500 records that were standalone convictions as classified in the bill. She elaborated that because DPS could not estimate how many of the individuals would come forward to request that the information be prohibited from disclosure, DPS would request to hire a temporary position to enable the department to deal with the incoming requests and to proactively research records in order to expedite requests from individuals to prohibit the information from disclosure in certain background reports. The department would request $184,200 UGF in the first year to cover personal services and the necessary programming changes to APSIN to prohibit release of the information. The cost in the second year would be $121,200 in personal services costs for the position and associated overhead costs. 10:43:40 AM Representative Josephson asked for the reason between the difference in the 700 to 1,000 cases [projected by the court system] and the 8,000 [projected by DPS]. Ms. Mead replied that the court system was counting cases that were filed under the specific subsection of the illegal marijuana law (AS 11.71.060) specifying that possessing under one ounce of the substance was a crime. She clarified that if the case came into the court system charging AS 11.71.060(a)(2)(a), the court system would remove the case, given it was the conduct the bill wanted shielded from CourtView. She elaborated that the law had changed a number of times over the years. For example, in the 1980s the marijuana possession law specified it was legal to possess up to half a pound of the substance. She detailed if the court system had a case in its records where a person had been convicted for possessing over half a pound, the case would not be removed from CourtView under the legislation because the person may have been in possession of seven ounces. She expounded that a person may come forward requesting the department to look at the case if they had only been convicted of possessing up to one ounce. She explained the case would be removed [from CourtView] if it was found to meet the criteria. She clarified the department's estimate only counted cases it was certain fell within the bill's specifications. Ms. Howell explained the reason for the discrepancy in between the court system and DPS numbers. She detailed that APSIN was the state's criminal history repository and contained official records of a person's criminal history. Out of an abundance of caution, the department had identified and included a number of cases that could meet the criteria in the bill. The cases were standalone convictions for possession of marijuana. She highlighted that the law had changed many times and the department did not know without conducting further research whether a person's particular conviction would meet the criteria in the bill; therefore, the department had identified any record that could potentially fall under the bill (including state convictions and municipal offenses). She added that the department's bureau chief for Criminal Records and Identification was available online to speak as the subject matter expert on APSIN and criminal history records. 10:47:07 AM LISA PURINTON, BUREAU CHIEF, CRIMINAL RECORDS AND IDENTIFICATION, DEPARTMENT OF PUBLIC SAFETY (via teleconference), confirmed Ms. Howell's prior statement that the major discrepancy between the court system and DPS numbers was the difference between having the specific subsections as Ms. Mead had identified versus the more general version of AS 11.71.060 without any reference to subsections. She explained those cases would have to be individually researched by DPS to determine if the criteria had been met as outlined in the bill for preventing the records from being displayed in an "any persons" background check request. She highlighted that the DPS data went much further back than the court's data. She believed the court was limited to going back to around 2007, while DPS included all historic marijuana conviction records that could potentially fall within scope. Ms. Mead clarified that initially the court system had gone back to 2005 when all of the courts were on CourtView and records were most reliable. She noted that the bill had started several years back. Since that time, more information had been added to CourtView. In general, the court system identified about 700 cases from 2005 forward. The cases going back to 1990 accounted for the slightly higher number. Co-Chair Merrick asked for the bill sponsor about the catalyst for the bill. Representative Kreiss-Tompkins replied that the idea had been discussed in past legislatures since the ballot initiative decriminalizing marijuana had passed a number of years back. He explained that the issue had always been on his radar and the action seemed very reasonable, especially as other states around the country had gone much farther than the scope of the bill. He added that the bill reflected a calibration toward what he hoped could attract maximum support from the legislature and pass. He would be pleased to see a greater scope, but he had matched the bill to what he believed were the political realities in the building. He believed the bill made a lot of sense given how marijuana had evolved over the past decade and had been changed in the state's criminal statutes. He viewed the action taken by the bill as a commonsense step. 10:50:45 AM Vice-Chair Ortiz asked if there was a difference in the public's accessibility of records shown on CourtView versus in the DPS APSIN database. Ms. Howell answered that APSIN was not accessible by the general public. Representative Carpenter was concerned about rewriting history and the inability for employers to access past records from the court system for prospective employees. He understood it was an effort to destigmatize something that had been illegal and was now legal. He provided a hypothetical scenario where the speed limit increased from 55 miles per hour (mph) to 65 mph. He asked if individuals who had received a speeding ticket when the speed limit was lower should no longer have the speeding violation on their record. He explained that as an employer, he would look at the record and determine that when the speed limit had been 55 mph the individual had a violation. He explained it provided information about their following of the law. He asked if there were instances where other laws had changed. He understood it was a policy call, but he wondered if there were instances where speeding tickets had been removed from CourtView because of speed limit changes or other violations, misdemeanors, or felonies had changed and therefore records had been removed from CourtView. Alternatively, he asked if the bill was an isolated case. 10:53:22 AM Ms. Mead answered that the short answer was "no" with respect to CourtView. She explained that when laws changed there was not a policy or law directing the court to remove entries on Court View. The bill would be unique in that regard. She pointed out that the court system was neutral on the bill. She highlighted that the legislation was not a full expungement bill and did not destroy records. She noted that law enforcement would continue to have full access to the information. She explained that based on what the legislature had done in the past, the bill followed the pattern of saying that the cases would be removed from the publicly available internet site CourtView. The change would mean people in their homes could not easily and readily access the material for free. She clarified that the action would not eliminate the court record and a person could still access the information at a courthouse. Representative Carpenter stated he may have used the word "expungement," but it was not his intent. He recognized the bill removed something from public view and it was a destigmatization of a past offense. 10:54:48 AM Vice-Chair Ortiz stated his understanding that traffic citations were removed from a person's record for insurance companies and other after a period of time. He did not believe traffic violations went back any further than two or three years if a person had a clean traffic record. He thought it may explain why the concern expressed by Representative Carpenter may not apply in relation to the bill. Representative Carpenter stated, "Not a representative of any of the insurance companies or whatever the case might be, that sounds like a policy for that particular institution." He knew that CourtView had past violations that were not removed after a period of time. Ms. Mead confirmed that Representative Carpenter was correct. The court system did not have a time period after which it removed any cases from Court View. She stated that a speeding ticket issued by the state would still be on CourtView. Representative Josephson agreed with Representative Carpenter's position. For example, a trucking company may want to know for its own liability what a person's history was. He believed under the bill the information would still be accessible to an employer. He stated that Representative Carpenter's question was well taken to inquire whether other things with a statutory change were removed [from CourtView]. He would be more comfortable with the bill if the charges were standalone. He explained there were cases where a person had three or four counts and they were all dismissed. He explained that more often than not when there were three or four counts, even though they were dismissed, there was a bit of smoke there, while there may not have been a fire. He explained that attorneys and employers tried to do research as inexpensively and quickly as possible. He noted that the individuals did not want to have to go to a courthouse to file a motion for everything that was not available on CourtView. He pointed out that family and criminal law attorneys and those working on restraining order cases, wanted as quick access as possible to the entire history of a person. He stated that an attorney learned all types of things and found witnesses with the method. He would be more comfortable with a standalone misconduct involving a controlled substance (MICS 6) charge because it was clearly an isolated case without tangents. Co-Chair Merrick thanked the presenters. HB 246 was HEARD and HELD in committee for further consideration. Co-Chair Merrick reviewed the schedule for the following meeting.