HB 66-CONTROLLED SUB.;HOMICIDE;GOOD TIME DEDUC.  1:01:42 PM CHAIR VANCE announced that the first order of business would be HOUSE BILL NO. 66, "An Act relating to homicide resulting from conduct involving controlled substances; relating to the computation of good time; and providing for an effective date." 1:02:02 PM JOHN SKIDMORE, Director, Criminal Division, Department of Law (DOL), referred to a document, titled "Controlled Substance Statutes References Chart" [included in the committee packet]. He directed attention to the state drug classifications on page 2, noting that Fentanyl was a schedule 1A according to Alaska Statutes. He proceeded to provide a summary of the controlled substances found in schedule IA through VIA. 1:07:11 PM MR. SKIDMORE returned to page 1 of the document, which summarized the statutory tiers of misconduct involving a controlled substance in the first through fifth degree. He described the presumptive range in addition to the criminal conduct associated with the first degree. CHAIR VANCE asked why age 19 was chosen [in regard to the conduct classified as misconduct involving a controlled substance in the first and third degree]. MR. SKIDMORE said he did not know the answer. He added that he would need to analyze the legislative history to understand that policy decision. CHAIR VANCE noted the lack of consistency in statute in terms of the age of minors. 1:13:02 PM REPRESENTATIVE GROH referred to the drug classifications on page 2 of the supporting document and asked whether the comprehensive listing of schedule IA through VIA controlled substances included lesser "B" or "C" tiers. MR. SKIDMORE conveyed that additional subsections were not utilized in this particular classification system. 1:13:58 PM MR. SKIDMORE returned to page 1 and resumed his overview of the controlled substances statutes reference chart, detailing misconduct involving a controlled substance in the second through fifth degree. He reiterated that this was not an exhausted listing of the laws. 1:18:30 PM REPRESENTATIVE EASTMAN suspected that the bill would give prosecutors added discretion. He asked which schedule Adderall fell under. MR. SKIDMORE indicated that Adderall was a schedule IIA. He disagreed with Representative Eastman's assertion that the bill would provide prosecutors with greater discretion, adding that HB 66 would simply change the classification of offense. REPRESENTATIVE EASTMAN remarked: What I mean by that is currently, you would not be able to charge an individual for second degree murder without the bill, and when the bill passes, if it does, you would then have the discretion of being able to charge some of the same conduct as second degree murder. Is that correct? MR. SKIDMORE acknowledged that it would change the classification of offense from manslaughter to murder in the second degree; however, he contended that such a change was not providing additional discretion. He defined prosecutorial discretion as deciding whether to charge a person, which would not be impacted by the bill. REPRESENTATIVE EASTMAN asked what the bill would accomplish. He considered a hypothetical scenario in which a parent shared his/her Adderall prescription with a child. He asked whether that conduct could be prosecuted as murder in the second degree if the bill were to pass. MR. SKIDMORE said the proposed legislation did not address prescription sharing with a child. Nonetheless, he emphasized that the conduct was illegal under current law, regardless of the outcome of HB 66. 1:22:15 PM REPRESENTATIVE EASTMAN asked whether the bill would change the classification for that conduct. MR. SKIDMORE answered no. CHAIR VANCE directed attention to Section 1, paragraph (2) of the bill, which read as follows [original punctuation provided]: (2) the person knowingly engages in conduct that results in the death of another person under circumstances manifesting an extreme indifference to the value of human life; CHAIR VANCE asked whether "indifference to the value of human life" should be referenced in paragraph (6) on page 2 of the bill. MR. SKIDMORE supposed one could argue the theory that the distribution of drugs could be considered an extreme indifference to the value of human life given the unregulated increased use of Fentanyl. Ultimately, he opined that the element of extreme indifference belonged under the provision for murder in the second degree, as drafted. He remarked, "In order for the state to get to a murder two, we would need to move the subsection, as the bill proposes, from manslaughter to murder two." 1:26:51 PM REPRESENTATIVE GRAY asked how good behavior was determined by the Department of Corrections (DOC). 1:27:23 PM MIKE MATTHEWS, Lead Research Analyst, Division of Administrative Services, DOC, offered to follow up with the requested information, adding that the determination of "good time" was a process that occurred within each individual institution. REPRESENTATIVE GRAY asked how much a sentence could be reduced for good behavior. MR. MATTHEW answered one third. REPRESENTATIVE GRAY asked which offenses were excluded from receiving good time. MR. MATTHEW offered to follow up with the requested information. MR. SKIDMORE, in response to Representative Gray, cited AS 33.20.010(a)(1)-(4), which read as follows [original punctuation provided]: (1) to a mandatory 99-year term of imprisonment under AS 12.55.125(a) after June 27, 1996; (2) to a definite term under AS 12.55.125(l); (3) for a sexual felony under AS 12.55.125(i) (A) and has one or more prior sexual felony convictions as determined under AS 12.55.145(a)(4); or (B) that is an unclassified or a class A felony; or (4) for an unclassified felony under AS 11.41.100 or 11.41.110. REPRESENTATIVE GRAY asked whether removing eligibility for a good time deduction would remove a tool for encouraging good behavior while incarcerated. MR. MATTHEW offered to follow up with the requested information. 1:30:25 PM REPRESENTATIVE GRAY inquired about the percentage of drug dealers that were also drug users. MR. SKIDMORE was unsure of the answer. He anecdotally reported that there was significant overlap between those that use drugs and distribute drugs to support their own addiction. REPRESENTATIVE GRAY asked how to reduce recidivism. CHAIR VANCE asked Representative Gray to narrow the question. REPRESENTATIVE GRAY asked how recidivism could be reduced for individuals struggling with substance abuse issues. MR. SKIDMORE indicated that one tool available to the courts was rehabilitation, such as substance abuse treatment, which could be received either in or out of custody. Additionally, he cited educational programs and stipulations of probation or parole. REPRESENTATIVE GRAY asked whether there was evidence that longer sentences lead to lower rates of crime. MR. SKIDMORE indicated that it was possible; however, the notion behind the proposed legislation was to consider appropriate criteria for individuals who were distributing "poison" to Alaskans, which was resulting in their death. He listed the five components of the Chaney Criteria as follows: rehabilitation, general deterrents, specific deterrents, community condemnation, and isolation. He submitted that isolation and community condemnation should be imposed on more egregious offenses, such as the one in question. 1:34:28 PM REPRESENTATIVE GRAY directed attention to the added provision under good time exclusions on page 3, lines 10-12, of HB 66. He shared his understanding that the provision, which removed the possibility of good time deduction for those charged with a felony under AS 11.71.010 11.70.040, would remove good time eligibility for all drug offenses, not just those that resulted in death. MR. SKIDMORE confirmed that the bill would exclude anyone distributing drugs from receiving a good time deduction, the rational being that all drug dealers were participating in the larger industry that was responsible for the substantial increase in overdose deaths. 1:36:48 PM REPRESENTATIVE CARPENTER asked why Section 1 of the bill expressly focused on schedule IVA controlled substances. MR. SKIDMORE stated that the reference to schedule IVA controlled substances was a policy decision that was made previously when the manslaughter provision was initially adopted. REPRESENTATIVE CARPENTER shared his understanding that the bill would not apply to a person who died from consuming a schedule IA or IIA drug, such as heroin or PCP. He suggested that HB 66 would only apply to a person who overdosed from consuming a schedule IVA controlled substance. MR. SKIDMORE answered no. He directed attention to page 2, line 21, of HB 66, which referred to a person who knowingly manufactures or delivers a controlled substance in violation of AS 11.71.010 11.71.030. He clarified that AS 11.71.010 11.71.030 covered misconduct involving a controlled substance for schedule IA IVA drugs. 1:41:00 PM REPRESENTATIVE C. JOHNSON asked for verification that, unlike bath salt, a loophole could not be created by altering the synthetic composition of fentanyl to make it legal. MR. SKIDMORE confirmed that fentanyl had a definitive chemical composition that could not be easily changed. He explained that now, the attorney general (AG) had the ability to add altered chemical compositions of synthetic controlled substances to the statutory schedules, pending approval by the legislature, based on recommendations from the Controlled Substance Advisory Committee an option that was not available to the state during the bath salt wars referenced by Representative C. Johnson. 1:43:08 PM MR. SKIDMORE, in response to a question from Representative Eastman, disagreed with his analysis of Section 2 of the bill, explaining that the restriction [of good time eligibility] was based upon the sentence imposed on the prisoner for a particular crime. Therefore, if a person were convicted of both misconduct involving a controlled substance, for which a good time deduction would not be permitted per HB 66, and a DUI, the individual could receive a good time deduction for the DUI sentence. REPRESENTATIVE EASTMAN asked where that was specified in statute. He contended that, per his reading of the language, an offender would not be eligible for a good time deduction if he/she had been sentenced. MR. SKIDMORE deferred the question to the Department of Corrections (DOC). He shared his understanding that the intent of restricting good time for specific crimes was not so that a person would be ineligible from receiving good time for additional offenses. REPRESENTATIVE EASTMAN considered a scenario in which a person committed suicide with a controlled substance. He asked whether the person who sold or delivered that controlled substance could be charged with second degree murder if HB 66 were to pass. MR. SKIDMORE confirmed that the bill would allow the prosecutor to hold the distributor of the controlled substance responsible for causing another person's death, regardless of whether the death was intentional suicide. REPRESENTATIVE EASTMAN asked Mr. Skidmore to opine on a scenario in which a substance was altered between distribution and ingestion. MR. SKIDMORE said he would need to follow up after further analysis of the question. 1:49:51 PM REPRESENTATIVE GRAY inquired about the daily cost of keeping someone incarcerated. MR. MATTHEW answered $176 per day. REPRESENTATIVE GRAY inquired about the costs associated with extending sentences and asked why the fiscal note was zero. MR. MATTHEW said the fiscal note was zero because there was a current capacity of 750 beds [in DOC facilities]. He estimated that the bill would increase the prison population by a maximum of 38-39 people per day. REPRESENTATIVE GRAY inferred that the cost remained at zero because there were extra beds available in the DOC facilities. He asked whether that was correct. MR. MATTHEW said, generally speaking, yes. He said additional money would not be requested unless maximum capacity was exceeded. REPRESENTATIVE GRAY sought to confirm that as long as there were available beds, housing the incarcerated population was free. MR. MATTEW answered, "Yes and no." He explained that DOC charged federal agencies a daily bed rate of $176 for holding their prisoners. REPRESENTATIVE GRAY asked whether state prisoners were held free of charge. MR. MATTHEW remarked: It's a mathematical formula based on how many people we have per day and how much the costs are for that at a given period of time. In a sense, yes, it is free in that context but of course there are costs any time you have additional people. But we are budgeted for a certain amount of people and right now, our budget is under that many people. 1:53:29 PM REPRESENTATIVE GRAY surmised that it would cost money to increase the prison population, which would require a fiscal note. He asked whether that was wrong. MR. MATTHEW asked Representative Gray to repeat the question. REPRESENTATIVE GRAY declined. He maintained his belief that a zero fiscal note inaccurately reflected the bill. REPRESENTATIVE ALLARD offered an analogy between the cost of incarceration and the cost of driving a school bus, indicating that the cost would be the same whether there were 10 students or 20 students. She asked whether that was an accurate analogy. MR. MATTHEW said, "That's a pretty good analogy." 1:55:26 PM REPRESENTATIVE GROH calculated that $176 multiplied by 365 equaled over $64,000. He asked whether that was correct. MR. MATTHEW confirmed. 1:55:58 PM REPRESENTATIVE C. JOHNSON asked whether DOC's budget was based on capacity or the number of incarcerated individuals. MR. MATTHEW indicated that the formula was based on the budgeted amount in addition to the number of people incarcerated and the number of days served. 1:56:49 PM CHAIR VANCE announced that HB 66 would be held over.