SB 56-RECLASSIFYING CERTAIN DRUG OFFENSES  1:12:42 PM CHAIR KELLER announced that the first order of business would be CS FOR SENATE BILL NO. 56(JUD), "An Act relating to certain crimes involving controlled substances; and providing for an effective date." CHAIR KELLER noted that SB 56 is the companion legislation to HB 178, which has already been heard in the House Judiciary Standing Committee. He related his desire to move SB 56. 1:14:18 PM CHUCK KOPP, Staff, Senator Fred Dyson, Alaska State Legislature, speaking on behalf of the sponsor of CSSB 56(JUD), informed the committee that the Department of Law (DOL) had expressed concern that the five-year look-back period for a person found in possession of a drug was too short for those with two strikes prior to a felony charge. Therefore, [the amendment labeled 28- LS0355\C.6, Strasbaugh, 4/5/13] would lengthen the period to seven years. He related that the return to seven years complies with the intent of the sponsor and provides more time for a defendant to seek treatment and rehabilitation. The amendment labeled 28-LS0355\C.6, Strasbaugh, 4/5/13, read: Page 2, line 2: Delete "five" Insert "seven" MR. KOPP then explained that the amendment [labeled 28- LS0355\C.7, Strasbaugh, 4/5/13] would require screening, evaluation, and treatment - if necessary - for a defendant convicted of misconduct involving a controlled substance in the fifth degree. The sponsor believes the aforementioned would comport with the intention of CSSB 56(JUD), which is to refer those with a drug addiction to treatment. The proposed amendment, he opined, clearly provides direction to the court that anyone picked up for drug possession, as CSSB 56(JUD) addresses, will be referred to treatment. Furthermore, if it's determined after the initial screening that the treatment is necessary, then treatment will follow. The amendment labeled 28-LS0355\C.7, Strasbaugh, 4/5/13, read: Page 5, following line 15: Insert a new bill section to read:  "* Sec. 3. AS 12.55.135 is amended by adding a new subsection to read: (l) A defendant convicted of misconduct involving a controlled substance in the fifth degree shall be ordered to satisfy the screening, evaluation, referral, and program requirements of an alcohol safety action or drug abuse evaluation program, if an alcohol safety action or drug abuse evaluation program is available in the community where the person resides, or of a private or public treatment facility approved by the Department of Health and Social Services under AS 47.37 to make referrals for rehabilitative treatment or to provide rehabilitative treatment." Renumber the following bill sections accordingly. 1:19:09 PM REPRESENTATIVE MILLETT inquired as to whether these changes would lower the tolerance for date rape drugs. She stated that she didn't want to create a situation that would make it easier to rape women and not be prosecuted when the drugs are in their possession. MR. KOPP clarified that CSSB 56(JUD) does not address the date rape drug, Rohypnol, which is a schedule IV drug. He pointed out that there are hundreds of drugs that can be used for nefarious reasons and the number one date rape drug in the world is alcohol. However, he related that during his 23 years of law enforcement experience, he saw only alcohol and Rohypnol once being used to commit [rape]. REPRESENTATIVE MILLETT, drawing from experiences her children related to her regarding Rohypnol use to commit nefarious acts, maintained concern that the legislation would lower the standards. With regard to alcohol being the number one date rape drug, she highlighted that it's someone's choice to drink. MR. KOPP assured the committee that [even with CSSB 56(JUD)] when one is charged with sexual assault in the first degree, whether or not the defendant caught with the first possession of this drug would be a misdemeanor or not has nothing to do with the unclassified felony with which the defendant will be charged. Furthermore, most of the drugs listed in this legislation have legitimate uses, although they can be misused. He noted that the public defender and the director of the Office of Public Advocacy (OPA) could speak more on this issue as they have dealt with thousands charged with these types of acts. 1:23:43 PM REPRESENTATIVE MILLETT then inquired as to whether possession [of the controlled substances listed in CSSB 56(JUD)] by [a defendant] in a rape case would be considered a mitigating factor if convicted. MR. KOPP deferred to the public defender and the director of OPA. 1:24:21 PM REPRESENTATIVE LEDOUX said that her concern isn't regarding the defendant in a rape case rather her concern is regarding a situation in which someone has the [date rape] drug in their possession because they are thinking of using it. MR. KOPP emphasized that there are a number of chemicals that can be misused for the purpose [of rape], which is why the focus is only on criminal acts and behaviors. 1:25:24 PM RICK ALLEN, Director, Office of Public Advocacy (OPA), Department of Administration (DOA), began by informing the committee that he can speak from experience as a prosecutor in Palmer for almost eight years, during which time he prosecuted hundreds of felony cases, after which he became a public advocate. With regard to Rohypnol, he told the committee that although it's illegal in the United States it's still prescribed in locations in Latin America, such as Mexico, and Europe. Although it sometimes is found in the U.S., he couldn't recall a single Rohypnol case that was ever prosecuted in the Matanuska- Susitna Valley. Furthermore, he couldn't even remember hearing of any such cases in Alaska. The drug Rohypnol is similar to valium in that it's an anti-anxiety drug. Rohypnol is a schedule IV drug. He reiterated earlier testimony that SB 56 and HB 178 don't address schedule IV drugs. 1:27:02 PM REPRESENTATIVE PRUITT expressed concern with anyone having any amount of the types of drugs typically used [in nefarious situations such as rape]. Therefore, he indicated hesitation moving forward [with the legislation]. He said he's not yet comfortable with the legislation's proposed changes. Although he wasn't comfortable with allowing individuals to possess small amounts of controlled substances as addictive as methamphetamines and other drugs in the categories in the legislation, he wasn't "a fan" of such an individual being a felon for 10 years. Representative Pruitt inquired as to whether the [legislation] is headed in the appropriate direction or is it part of a larger discussion that should be held regarding overall sentencing and existing mechanisms. 1:30:13 PM MR. KOPP reiterated that this legislation has nothing to do with date rape drugs. "That is a red herring," he stressed. He further stressed that nothing in the legislation makes a drug legal. Furthermore, the legislation doesn't decriminalize anything. The legislation recognizes that current law doesn't provide an individual caught for simple drug possession an opportunity to participate in reform - as is provided for those convicted with driving under the influence (DUI), misdemeanor assault, and misdemeanor theft - rather than house them for $54,000 per year and have the felony label keep the offender on public assistance for 10 years after release. He highlighted that domestic violence, alcoholism, and recidivism rates decrease for those who can obtain a job. Therefore, family units have a much better chance of staying together. Mr. Kopp then directed attention to a Pew Center report that relates the vast majority of the nation, including conservatives, [agree] with the approach proposed by the legislation. The Pew Center has authored several prominent studies that have confirmed that the states experiencing progress that is actual reductions in recidivism are states that are going in the direction [proposed by SB 56]. 1:35:09 PM QUINLAN STEINER, Director, Public Defender Agency, Department of Administration, regarding date rape drugs, related that in the last 15 years he didn't recall any prosecutions for drugs used in date rape situations. He offered his understanding that the core of CSSB 56(JUD) addresses simple possession of recreational drugs and drug use and places the penalty at a misdemeanor, which is a significant penalty. For a misdemeanor one faces up to a year in jail and up to a $10,000 fine. [The changes embodied in CSSB 56(JUD)] are important because they allow for the Alcohol Safety Awareness Program (ASAP) screening, which allows a neutral individual to evaluate whether an individual has an addiction or has made an error in judgment in terms of determining what is necessary to divert them. Therefore, the proposed change in statute allows individuals to take personal responsibility for their decisions and actions, which could've been a youthful indiscretion. The change, he opined, will have a profound impact on juvenile, younger offenders. A felony for life has a tremendous impact on one's ability to attend college and obtain work in many different fields, whereas a misdemeanor will allow the offender to take responsibility and divert their path. For instance, the vast majority of individuals who receive a DUI never receive a second DUI, and an even smaller amount receive a third DUI. Those receiving a third DUI tend to repeat, which is the point at which the felony conviction, increased supervision, and penalties is directed. With recreational drugs, one can assume that a third-time offender is dealing with a significant problem requiring more supervision. 1:38:29 PM REPRESENTATIVE PRUITT asked whether the [public defender's office] has the ability to select with what an individual is going to be charged. MR. STEINER explained that the prosecution is the entity that determines what charge with which to proceed. If an individual is in possession of a controlled substance set at a felony level, the prosecution proceeds on a felony. With regard to entering into a plea bargain and reducing the charge, it's up to the state to reduce a charge in exchange for a plea with jail time and other conditions and the client would have to agree to it. With plea bargaining in these simple possession cases, one of the problems is disparity in jurisdictions and prosecutors. This legislation would level the playing field since individuals with one or two simple possessions would have the opportunity to take responsibility and correct their behavior prior to being supervised under felony probation. 1:41:57 PM REPRESENTATIVE LYNN mentioned that he has reservations about CSSB 56(JUD), although the goals of it are good. He asked whether the legislation achieves the goal of decreasing prison populations. He then questioned whether it would be appropriate to include a 10-year sunset to ensure that the legislation accomplishes the goals. MR. KOPP reiterated that other states have implemented [similar changes]. In fact, the conservative State of Wyoming, after which Alaska's law is modeled, has a lower violent crime and property crime rate than Alaska. Furthermore, Alaska's as well as the nation's current approach [for simple possession of controlled substances] illustrates that incarceration is not the way out of the drug problem. He recalled that Alaska's attorney general, speaking before the Senate Finance Committee, said the state's laws aren't working that is the current policy and approach isn't resolving the issues. 1:44:35 PM PEGGY BROWN, Executive Director, Alaska Network on Domestic Violence and Sexual Assault (ANDVSA), expressed concern that CSSB 56(JUD) would indeed lower the standard for [date rape drugs]. She related that the National Drug Intelligence Center (NDIC) reports that in the U.S. gamma-hydroxybutanoic acid (GHB) has now surpassed Rohypnol as the substance most commonly used in drug facilitated sexual assault. The NDIC report attributes the aforementioned to the likelihood that GHB is much more easily available, cheaper, and leaves the body more quickly. Ms. Brown highlighted that Alaska is a state that has two and a half times the national average in child sexual assault. These are drugs, more appropriately referred to as "predator" drugs, which can be used in various degrees to incapacitate and paralyze people. She then requested that the committee closely review CSSB 56(JUD) in order to ensure that it isn't declassifying certain drugs that are predator drug components and maintain that while reducing the costs of prison and incarcerations. Noting that her brother is a former warden for a prison in Louisiana, she said she understands the concern [of the cost of prison and incarceration]. Ms. Brown acknowledged that she didn't have any answers for the committee, but offered that a larger discussion, particularly regarding date rape/predator drugs, [may be necessary]. 1:48:39 PM CHAIR KELLER, upon determining no one else wished to testify, closed public testimony on CSSB 56(JUD). He then requested that the committee address the two amendments provided to it. 1:49:46 PM REPRESENTATIVE PRUITT asked whether the proposal in this legislation removes a tool from prosecutors. 1:50:16 PM ANNE CARPENETI, Assistant Attorney General, Legal Services Section, Criminal Division, Department of Law (DOL), in response to questions, echoed earlier testimony that in Anchorage first offense possession of schedule I or IIA drugs are routinely reduced to misdemeanors. Therefore, that's definitely a tool. She then informed the committee that GHB is a schedule IA controlled substance. 1:51:04 PM REPRESENTATIVE LEDOUX asked whether any of the drugs referred to in CSSB 56(JUD) would be referred to as date rape/predator drugs. MS. CARPENETI offered her understanding from Ms. Brown and a sexual assault nurse that GHB, gamma-valerolactone 4-pentanolide (GVL), and 1,4 butanediol (BD) are all being used as date rape drugs. However, the nurse wasn't familiar with gamma hydroxyvalerate (GHV). She opined that the difficulty with these date rate drugs is that they leave the body very quickly, which she attributed to the lack of cases being brought forth. This legislation would reduce possession of date rape/predator drugs from a felony to a misdemeanor. 1:52:52 PM REPRESENTATIVE PRUITT inquired as to the result of removing schedule IA, which includes the date rape drug, from the legislation. He then requested an estimation of how many cases involve [controlled substances] in schedule IA and schedule IIA. He questioned whether it's appropriate to include some of the worst controlled substances in schedule IA or [controlled substances] in a lesser category. MS. CARPENETI answered that these are policy decisions for the committee to make. Although the sponsor of the legislation has great intentions, there may be unintended consequences of a blanket change that makes possession of schedule IA controlled substances for the first and second offense a class A misdemeanor. One of the concerns is with the date rape drug, which she didn't view as a red herring. In fact, she stated that the concern with the date rape drug should be considered. REPRESENTATIVE PRUITT inquired as to how many cases there have been [in which a first offense of a class A] felony was [not prosecuted as a felony]. MS. CARPENETI responded that she didn't know and would have to determine whether such information is available. She then related that the information available in this realm is fairly archaic. REPRESENTATIVE LEDOUX questioned whether the legislation could be changed such that it could refer to schedule I controlled substances except any predator controlled substances without specifically naming them. MS. CARPENETI stated that an exception could be included for this category of controlled substances that are generally considered to be date rape drugs. 1:56:33 PM CHAIR KELLER surmised that there is no legal definition of a date rape drug. MS. CARPENETI related her belief that's correct, but pointed out that what are considered to be date rape drugs are specified in AS 11.71.140(e)(1)-(2)(A)-(D). 1:57:19 PM The committee took a brief at-ease. 1:58:22 PM REPRESENTATIVE MILLETT related her support for the concept of CSSB 56(JUD), but maintained concern that the proposed change includes date rape drugs. MR. KOPP offered that the legislation could be amended to not apply to date rape drugs. However, he pointed out that Rohypnol, the date rape drug, is already a misdemeanor in Alaska statute. This legislation would maintain Rohypnol as a misdemeanor for initial possession, but the third offense would become a felony. He noted that it was news to him that use of GHB has surpassed Rohypnol as a date rape drug. He also highlighted the testimony of Alaska's public defender and director of OPA, who between the two of them have many decades of prosecution and defense experience and who have not dealt with a date rape drug case. Therefore, he said it's not an issue. REPRESENTATIVE MILLETT highlighted that since the date rape drugs are fast acting that might be why there aren't prosecutions involving those drugs. Though she supported the legislation, she maintained concern with the impact in relation to the date rape drugs. She thanked Mr. Kopp for his willingness to amend CSSB 56(JUD) in regard to date rape drugs. MR. KOPP characterized such an amendment as a friendly amendment. 2:02:44 PM REPRESENTATIVE GRUENBERG asked whether the word, "shall" on line 5 of the amendment labeled 28-LS0355\C.7, Strasbaugh, 4/5/13, should instead be changed to "may" and leave it to the discretion of the court. Drawing from a situation in another state in which the [requirement to participate in an alcohol safety action or drug abuse evaluation program] was abused; he asked whether there has been any abuse of it in Alaska. MR. ALLEN related that much of the latest literature and best practices trend toward ordering rehabilitative treatment for simple possession regardless of whether it's appropriate in a given case. He confirmed that sending individuals who aren't addicts to rehabilitative facilities in which they are surrounded by addicts can do more damage than good. However, the way this legislation is drafted and the way it works with the DUI context is that there is an initial screening process. He said he is very comfortable with the way the aforementioned process works in Alaska. For example, in the DUI context an individual with a blood alcohol content (BAC) of 0.085 who has never been in trouble before and the facts of the case are clear that the individual had a couple too many glasses of wine with dinner and shouldn't have driven, the individual will [be required] to sit through a video and a course on alcohol safety. In his view, a similar scenario will be followed in the drug context. While he shared Representative Gruenberg's concern on a national level, he opined that the ASAP does a fairly good job of those evaluations. 2:07:07 PM MR. STEINER noted his concurrence with much of Mr. Allen's response. However, he highlighted that independence is one of the keys to the success of the screening approach. Therefore, the screeners need to be professionals who aren't associated with particular programs in order to make an independent recommendation. In Anchorage, there is a good reputation for the independent screening process such that the recommendations are consistent with the facts of the case and the individuals. He remarked that compulsory language is helpful if there isn't independence or to ensure against the possibility of abuse. MS. CARPENETI clarified that the mandatory language, the "shall", only pertains to evaluations not treatment. Without the evaluation of those convicted of possession of serious drugs covered by CSSB 56(JUD), it potentially leaves these individuals without supervision. Therefore, the mandatory evaluation is appropriate, she posited. CHAIR KELLER announced that CSSB 56(JUD) would be set aside in order to allow the sponsor time to address members' concerns.