SB 32-CRIMES; SENTENCING;MENT. ILLNESS;EVIDENCE  3:33:56 PM CHAIR SHOWER announced the consideration of SENATE BILL 32 "An Act relating to criminal law and procedure; relating to controlled substances; relating to probation; relating to sentencing; relating to reports of involuntary commitment; amending Rule 6, Alaska Rules of Criminal Procedure; and providing for an effective date." He stated his intent to hear the introduction and sectional analysis. He advised that the committee would review the bill from both the state affairs and judiciary perspectives because the judiciary committee chair has declared a conflict of interest based on [an ethics committee ruling] about House Bill 44. He invited Mr. Henderson to the witness table and noted who was available to answer questions. 3:35:32 PM ROBERT HENDERSON, Deputy Attorney General, Criminal Division, Department of Law, Anchorage, explained that at its core, SB 32 is designed to return sentencing classifications to pre-Senate Bill 91 law. It is intended to ensure that prosecutors, law enforcement, and the court have the tools to respond to the general crime trends. The bill focuses on the mandated sentencing criteria that must be assessed including community condemnation, reaffirmation of societal norms, general and specific deterrents, the seriousness of the offense, victim input, restoration of the victim, and rehabilitation. He said rehabilitation and treatment are priorities, but not the only priorities. SB 32 is about balancing those things. MR. HENDERSON stated that SB 32 returns the statutory scheme for drugs to pre-Senate Bill 91 law. This is done to combat drug trafficking. He summarized that Senate Bill 91 reduced all the sentencing and statutory schemes, which impacted the ability to address drug trafficking. SB 32 also addresses sentencing for both felonies and misdemeanors. He noted that the parts of SB 32 that are not related to Senate Bill 91, are designed to close gaps or loopholes that have been identified. He said he would point these out in the sectional. 3:38:13 PM MR. HENDERSON delivered the following sectional analysis for SB 32. Section 1: Clean up language. Aligns murder in the second degree when a person dies during the course of a drug deal with the changes made to the drug statutes later in the bill. Section 2: Clean up language. Same change that is made in sec. 1 is made in sec. 2 for murder of an unborn child in the second degree. He explained that Sections 1 and 2 are conforming amendments to the murder statutes to include the new misconduct involving controlled substances in the second degree into the "felony murder rule." Section 3 10: Removes inflation adjustment from property crime statutes. He noted that the inflation adjustment, which was created by Senate Bill 91, is repealed from the theft and criminal mischief statutes. Section 11: Defines "prior convictions" when evaluating the existence of prior convictions in the recidivist theft statutes. He explained that this is a clarifying amendment to rectify the inadvertent omission of the definition. Section 12 18: Removes inflation adjustment from property crime statutes. [Also referred to as the theft and criminal mischief statutes.] Section 19: Adds to the crime of escape in the second degree persons who are under the jurisdiction of the Commissioner of Health and Social Services for a felony and restricted to the residence then leave their residence without permission. MR. HENDERSON clarified that this is about the Division of Juvenile Justice jurisdiction. Escape in the second degree is a class B felony. 3:39:57 PM SENATOR MICCICHE asked him to explain, to the public, the automatic inflation adjustment. CHAIR SHOWER requested members limit their questions to key points during the introduction. MR. HENDERSON explained that Senate Bill 91 created a mechanism beginning in 2020, that all the property thresholds for theft offenses would automatically increase at the rate of inflation, as determined by the Alaska Judicial Council. SB 32 repeals that in Sections 3-10 and Sections 12-18 for the following reasons: 1) as the Department of Law outlined in its review of Senate Bill 91, there may be a separation of powers problem; and 2) it eliminates the public involvement in determining what the thresholds should be. He noted that when Senate Bill 54 reduced the felony thresholds to $750, public involvement was very important in determining that amount. He reiterated that SB 32 repeals the inflation adjustment. He continued the sectional analysis for SB 32. Section 20: Makes it a class C felony to remove an electronic monitoring device or leave a person's residence while under official detention for a misdemeanor regardless if under the jurisdiction of the Department of Corrections or the Department of Health and Social Services [Division of Juvenile Justice]. Also makes it a class C felony if the person is on conditions of release before trial and ordered to electronic monitoring or house arrest by the court and the person removes the electronic monitoring device or leaves one's residence without permission. SENATOR REINBOLD asked what happens if a person on electronic monitoring doesn't maintain the battery and the monitor stops working. If that isn't covered in the bill, an amendment is needed, she said. MR. HENDERSON replied that would be covered under the tampering with physical evidence statute. SENATOR REINBOLD asked him to follow up with the statute. SENATOR COGHILL asked for clarification that this is new language, not a repeal. MR. HENDERSON said that's correct; both Sections 19 and 20 have new language to fill gaps that have been identified. 3:43:52 PM Section 21: Clean up [conforming] amendment for change that occurs in section 22, making failure to appear a crime. Section 22: Removes 30 day grace period for defendants during which it was not a crime to fail to show up for a hearing. Under current law, it is not a crime to fail to appear for a court hearing unless the person goes 30 days or longer without making contact with the court or fails to appear with the intent being to avoid prosecution. This section removes both of those limitations. He explained that failure to appear refers to a person on bail release who is ordered by the court to appear at their next court hearing and they do not show up. Under Section 22, it is a class C felony offense for somebody on felony bail release to fail to show up for a hearing. It is a class A misdemeanor for somebody on bail for a misdemeanor to fail to show up for a hearing. SB 32 repeals the 30-day grace period that Senate Bill 91 created for failing to appear or contact the court or absconding or fleeing the jurisdiction to avoid prosecution. SENATOR COGHILL said later he will ask how the provisions that are being repealed have worked, both the pros and cons. MR. HENDERSON continued the sectional analysis for SB 32. Section 23: Amends the crime of violating conditions of release which relates to conditions imposed by the court on persons on pretrial release. This section makes it a class A misdemeanor for a person to violate their conditions of release if they are on release for a felony and a class B misdemeanor if they violate while on conditions for a misdemeanor. He noted that later on the bill repeals the provision that a violation of conditions of release (VCR) is five days in jail. Returning the offense to a class A misdemeanor, given the changes later in the bill, if you're convicted of a class A misdemeanor the penalty provision is 0 to 1 year in jail. If it's a class B misdemeanor it would become 0 to 90 days, given the changes later in the bill. SENATOR MICCICHE questioned the reason that the penalties aren't scaled upward for more serious crimes that a person may commit while on electronic monitoring. MR. HENDERSON replied it's about striking that balance he described earlier. For the escape statutes, the intent is to ensure that the criminal sanction is adequate to give the Department of Corrections confidence to use electronic monitoring when appropriate. SENATOR REINBOLD asked why violating conditions of release for a felony conviction isn't a felony offense. "That's one huge flag I have on this bill," she said. MR. HENDERSON explained that violating conditions of release are not standalone new criminal acts. They're criminal acts because of the conditions set by the court for a person on bail. The idea is to ensure that a criminal sanction is available to interrupt that behavior, but it should not be so large that it is equivalent to the underlying offense. SENATOR REINBOLD said she wants further discussion because violating certain conditions of release for a felon is very serious. She cited the example of a felon approaching a victim after they were told to stay away. 3:50:14 PM MR. HENDERSON continued the sectional analysis for SB 32. Section 24: Makes it a class A misdemeanor to refuse to provide a DNA sample when arrested for a qualifying offense. Under current law, those arrested for a qualifying offense must provide a DNA sample for inclusion in a DNA database. However, there is no enforcement mechanism. This section adds that enforcement mechanism. He explained that under the current law, a person who is arrested for a qualifying offense must immediately submit a DNA sample. Also, a person who is convicted of a qualifying offense must submit a DNA sample upon conviction; failing to do so is a class C felony offense. However, current law does not provide a corresponding enforcement provision for failing to provide a DNA sample upon arrest. Section 24 closes that loophole by creating a class A misdemeanor offense for failing to provide the required DNA sample upon arrest. The conforming amendments are in Sections 25 and 26. SENATOR MICCICHE asked for clarification that Sections 24-27 are entirely new. MR. HENDERSON confirmed that these are new sections; they are not related to Senate Bill 91. SENATOR COGHILL recalled the question about privacy on DNA testing and asked if there had been a court challenge. He said he believes that was the reason the penalty wasn't provided initially. MR. HENDERSON said the State of Maryland took its statute on the issue to the U.S. Supreme Court and it was found constitutional. It did not violate the Fourth Amendment to seize a DNA sample for introduction into CODIS if the person is charged with what the court characterized as a "serious offense." He explained that it is not a violation of constitutional rights because technology has made the DNA sample no different than fingerprints or other identifying information. CHAIR SHOWER said he has a slight disagreement but would discuss it later. SENATOR REINBOLD said she supports the provision as a way to prevent wrongful convictions. 3:53:33 PM MR. HENDERSON continued the sectional analysis for SB 32. Section 25: Clarifies that refusing to provide a DNA sample after conviction, as a part of a person's sentence, or because the person is required to register as a sex offender or child kidnapper, is a class C felony. Section 26: Classification section. Classifies the crime of violating an order to submit to DNA testing upon arrest is a class A misdemeanor. Section 27: Enacts a generalized threat statute to cover when an individual threatens to commit a serious crime which reasonably places another person in fear. Covers real threats of violence and not simply false threats. MR. HENDERSON clarified that Section 27 is not related to Senate Bill 91. CHAIR SHOWER commented that this should be carefully vetted because it could be very contentious. He added that for this committee he will focus on protecting citizens' rights. "As you get to the point where we dig deeper, be prepared to answer those constitutional questions, because they're going to come up her," he advised. MR. HENDERSON opined that this generalized threat statute should hold up to constitutional challenge because similar statutes challenged under the First Amendment have not been successful. There are two reasons: 1) the mental state employed here is a reckless disregard; and 2) the person must be placed in reasonable fear. CHAIR SHOWER said he was just warning to be prepared because the questions would be hard and deep. He added that he takes the constitutional obligation to protect citizens' rights "as seriously as anybody you're ever going to see in this building." 3:56:33 PM MR. HENDERSON continued the sectional analysis for SB 32. Section 28: Makes the crime of disorderly conduct a class B misdemeanor punishable by not more than 10 days. He noted that Senate Bill 91 reduced the penalty for disorderly conduct to 24 hours and SB 32 returns it to [not more than] 10 days. Section 29: Reenacts class A felony level crime for the distribution of [any amount of] schedule IA controlled substances [opioid derivatives including heroin, Fentanyl, and Carfentanil] and making methamphetamine. He said Sections 29-37 collectively return the drug laws to the pre-Senate Bill 91 statutory scheme. He said he would try to point out the repealed the provisions as he goes along. SENATOR REINBOLD shared that she has ridden along with both the Anchorage Police Department and the Alaska State Troopers and this section is important to them. She said later she will ask what rights law enforcement has when they know that [methamphetamine] is being manufactured and likely distributed in a building. MR. HENDERSON said he made a note of the request. He continued the sectional analysis for SB 32. Section 30: Renames AS 11.71.030, misconduct involving a controlled substance in the second degree to misconduct involving a controlled substance in the third degree. Amends the statute to include manufacturing or distribution of any amount of a schedule IIA or IIIA controlled substance. Also repeals section of law regarding the delivery of 1g or more of a schedule IA controlled substance or 2.5 grams or more of a schedule IIA or IIIA controlled substance as the amendments in the bill focus on the type of drug being distributed and not necessarily the amount. He explained that this removes the threshold in the drug statutes that [Senate Bill 91] created and returns it to previous law where the amount of drugs being trafficked becomes a factor (not the factor) in determining the significance of the drug trafficking behavior. He noted that many of the repealers found in Section [51] come from Section 30. These include AS 11.71.030(a)(1) on page 16, (a)(4), (5), and (6) on page 17. SENATOR REINBOLD mentioned a park in her community where drug dealing occurs and said she would like a discussion about the prohibition for possessing schedule IA and IIA controlled substances within 500 feet of a school [page 17, line 15] because that's fairly close. CHAIR SHOWER added that he wanted a discussion about whether government has flexibility to react to changes in drug use patterns. MR. HENDERSON asked if he was referring to response to new drugs that come on the market. CHAIR SHOWER said yes. MR. HENDERSON highlighted that House Bill 312 from last session allowed the attorney general to schedule new drugs at they came onto the market. CHAIR SHOWER said he just wanted to make sure that any loopholes that have come to light receive attention this year. We want to get this right, he said. MR. HENDERSON continued the sectional analysis for SB 32. Section 31: Conforming amendment to the changes made in section 30. Section 32: Makes the possession of any amount of a schedule IA (heroin) or IIA (methamphetamine, cocaine, PCP, etc.) controlled substance and various amounts of IIIA, IVA, and VIA controlled substances a felony. He said this section returns possession of the most serious drugs to a felony offense. It also returns possession of larger amounts of schedule IIIA, IVA, and VA controlled substances to a class C felony offense. Section 33: Conforming amendment to the changes made in section 32. Section 34: Removes possession of most dangerous controlled substances from the crime of misconduct involving a controlled substance in the fifth degree, as those possessory crimes would be a class C felony under the bill. 4:05:25 PM SENATOR MICCICHE said he was thinking about inserting an exception for legal cannabis. Because a number of people are concerned, it's worth clarifying that this does not refer to the legal cannabis industry. He said he'd follow up to discuss where that should be inserted. MR. HENDERSON agreed it would clarify the intent. MR. HENDERSON continued the sectional analysis for SB 32. Section 35: Renames AS 11.71.060 "misconduct involving a controlled substance in the sixth degree" to conform with the changes made to the drug offense statutes. Section 36: Conforming amendment to ["Good Samaritan"] statute prohibiting prosecution of individuals who seek medical or law enforcement assistance for a person who is overdosing. Section 37: Increases the maximum period of probation for felony sex offenses from 15 years to 25. Also increases the maximum period of probation for any other offense to 10 years.  He noted that Senate Bill 91 limited the time a person could be placed on probation. Section [37] changes that to allow the court to impose probation for the time necessary to conform their behavior and meet their probation conditions. CHAIR SHOWER said he assumes these provisions align with the changes in other bills but wonders what happens if they don't all pass. MR. HENDERSON said all the bills act in concert and if they don't all pass, conforming amendments will be needed. 4:08:26 PM MR. HENDERSON continued the sectional analysis for SB 32. Section 38 40: Enhanced sentences for making methamphetamine around children or engaging children in the sale of methamphetamine are reenacted. Also increases the presumptive sentencing ranges for class A, B, and C felonies. Felony Current Law SB 32  Level Class A First Felony: 3-6 First Felony: 5-8 (20 max) (20 max) Second Felony: 8-12 Second Felony: 10-14 (20 max) (20 max) Third Felony: 13-20 Third Felony: 15-20 (20 max) (20 max)  Class B First Felony: 0-2 First Felony: 1-3 (10 max) (10 max) Second Felony: 2-5 Second Felony: 4-7 (10 max) (10 max) Third Felony: 4-10 Third Felony: 6-10 (10 max) (10 max)  Class C First Felony: 0-2 First Felony: 0-2 (5 max) (5 max) Second Felony: 1-4 Second Felony: 2-4 (5 max) (5 max) Third Felony: 2-5 Third Felony: 3-5 (5 max) (5 max)  He explained that under felony sentencing rules, the presumptive range is dictated by a person's criminal history and the level of offense for which they're convicted. The range of incarceration the judge may impose for the offender who commits the typical offense appears as a grid. Senate Bill 91 moved all the presumptive ranges down and Sections 38-40 seek to move them back. The sectional has a chart that includes that and a matrix. Section 38 amends the presumptive ranges for all non-sex class A felony offenses to pre-Senate Bill 91 law. It also reenacts the enhanced penalty provisions for manufacturing methamphetamine around children. Section 39 increases all presumptive sentences for non-sex class B felony offenses. It's about a two-year shift, he said. Section 40 increases all presumptive sentences for all non-sex class C felony offenses. 4:10:26 PM CHAIR SHOWER asked if it's fair to describe this as the controlling document for all the other crime bill. MR. HENDERSON agreed it is foundational. SENATOR REINBOLD said she finds it ridiculous that somebody who commits their first felony potentially has zero jail time. She said she isn't asking for the discussion today, but she's flagging it. 4:11:29 PM MR. HENDERSON continued the sectional analysis for SB 32. Section 41: Prohibits the suspension or reduction of the period of mandatory probation outlined in statute for sex offenders. He said this is a provision that directly ties to some of the other crime bills the committee has heard. Section 42: Returns sentencing range for class A misdemeanors to 0-[365 days]. [It also repeals the 30- day cap placed on some misdemeanors found in Senate Bill 91.] SENATOR REINBOLD said she wanted it on the record that the sentencing range was reduced from 0-365 days down to 0-30 days. She described that as a major pet peeve and the 0-10 range for class B misdemeanors outrageous. She said overall, she loves SB 32. 4:12:48 PM MR. HENDERSON pointed out that in Section 42, the aggravating factors that were created for misdemeanors are repealed. The need for and how to apply the aggravators becomes unnecessary with the return to the overall range of one year in jail at the court's discretion. Section 43: Returns sentencing range for class B misdemeanors to 0-90 days. Section 44: Reenacts prohibition on jail time for a first marijuana offense if the person is not on probation or parole at the time of the offense. He noted that this is outside AS 17.38, the regulation of marijuana provision. Section 45: Repeals requirement that a person serve their sentence for a first DUI on electronic monitoring or house arrest. Returns discretion to the commissioner of corrections to place the person on electronic monitoring at a private residence or at a community residential center. Section 46: The same changes in section 45 are made in section 46 to the statute governing refusal to submit to a chemical test. Section 47: Conforming amendment due to the enactment of the class A felony level offense for drug distribution. Adds that conduct to the definition of "illegal activity involving a controlled substance" in the landlord tenant statutes. Section 48: Conforming amendment. Adds all felony level drug distribution to the list of crimes involving a minor which the Department of Health and Social Services will disclose information to the public. Section 49: Requires the Alaska Court System to transmit information regarding involuntary commitments that have occurred since October 1, 1981 to the Department of Public Safety. He clarified that this provision is not related to Senate Bill 91. Current law does not allow transmission of information earlier than 2014 and this allows that sharing to ensure that DPS and the national database has the information necessary regarding involuntary commitments. 4:15:28 PM SENATOR MICCICHE asked what problem the provision was trying to solve since involuntary commitments don't necessarily have anything to do with criminal activity. He opined that it seems like a disincentive for families to get someone needed help if it ends up in DPS records. MR. HENDERSON said this tries to close a gap in current law. If somebody has been involuntarily committed, that person is prohibited from possessing firearms under federal law. Sharing the information with DPS authorizes that agency to share the information with the national instant background check system. This ensures that the prohibited person cannot obtain a firearm. SENATOR MICCICHE said he needed to understand more details, but it seems that there could be potential for misuse. SENATOR REINBOLD noted that her perspective was a little different. She mentioned the zookeeper and Orlando murders and emphasized the importance of closing loopholes. She acknowledged that this was beyond the scope of Section 49, but she believes that fixing that loophole it an important part of the discussion of SB 32. SENATOR COGHILL added that he wants the courts to talk about what they can and can't do regarding involuntary commitments because this will be no small task. Section 50: Allows a person's rap sheet to be used at grand jury to prove the existence of prior convictions when prior convictions are an element of the offense. He said Section 50 is not related to Senate Bill 91. It amends Court Rule 6(r) to allow a person's electronic criminal history, which is technically heresy, to be used at grand jury (not trial) to prove a predicate offense. Rule 6(r) currently allows the use of this information at grand jury only in felony DUI cases. 4:19:53 PM SENATOR REINBOLD said she understands that it's the law, but she has a hard time accepting that information on a person's rap sheet related to sexual assault is heresy. She advised that she was considering an amendment to allow law enforcement to enter victims' testimony as evidence, not heresy. MR. HENDERSON continued the sectional analysis for SB 32. Section 51: Repealer section. Section 52: Applicability section. Section 53: Retroactivity section. Makes section 49 retroactive. Section 54: Conditional effect section for court rule change. Section 55: Immediate effective date for sections 49 and 55. Section 56: July 1, 2019 effective date for all other sections. 4:21:32 PM CHAIR SHOWER stated he would hold SB 32 in committee for future consideration.