SB 32-CRIMES; SENTENCING;MENT. ILLNESS;EVIDENCE  4:29:46 PM CHAIR SHOWER reconvened the meeting and announced the consideration of SENATE BILL NO. 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 that this is the third hearing and the purpose today is to get answers to the questions that have been raised. 4:31:57 PM SENATOR KAWASAKI read the first question: Section 28: What was the average sentence length for disorderly conduct both pre- and post- SB 91? From the time of arrest, what is the average amount of time that a person is in custody for a disorderly conduct charge? (Presume no prior convictions or mitigators or aggravators) ROBERT HENDERSON, Deputy Attorney General, Department of Law, Criminal Division, Anchorage, said DOL did not have that information, but they were checking to see if the Department of Corrections had it. He added that pre-Senate Bill 91, the maximum term for disorderly conduct was 10 days. Prior convictions, mitigators, and aggravators didn't change that maximum. Under the current law, the maximum term of imprisonment for disorderly conduct is 24 hours, regardless of the number of prior convictions or whether there are mitigators or aggravators. SENATOR KAWASAKI said he was trying to understand the impact of returning the maximum term of imprisonment for disorderly conduct to ten days. 4:33:51 PM SENATOR KAWASAKI read question 2: Section 32: How was the threshold for 1A and 2A drug position determined? How did the Department determine the threshold to show personal use versus intent to distribute? MR. HENDERSON explained that the Alaska Criminal Justice Commission (ACJC) initially proposed a 2.5 gram threshold for schedule IA and IIA controlled substances, but the thresholds were changed during the legislative process. Under current law, trafficking under 1 gram of a schedule IA controlled substance is a class C felony and trafficking under 2.5 grams of a schedule IIA drug is a class C felony. Trafficking more than that amount is a class B felony. The Justice Reinvestment Report to the Legislature said the rationale for the changes to the drug laws was that post- conviction admissions to prison for drug offenses had grown 35 percent in the 10 years prior to criminal justice reform and that felony drug offenders were spending more time in jail than they were 10 years ago. The proposal to reduce the sentences available to drug offenders was based on the commission's determination that there was little evidence of a deterrent effect in the sentencing scheme for drug offenders. Reclassifying drug trafficking of schedule IA and schedule IIA controlled substances achieved the intended goal to reduce sentencing and the prison terms available to drug traffickers. The reduction of presumptive sentencing for most offenses also reduced the availability of prison and jail as a sanction for drug trafficking. CHAIR SHOWER asked the department representatives to follow up with responses to any lingering questions by Thursday, 4/12/19, and not later than next Tuesday. 4:37:09 PM SENATOR COGHILL said he agrees in part about the intended effect of less charges but he also recalls there was discussion about charges that were bargained down pre-Senate Bill 91. He suggested it would be helpful to have a graph that shows the difference between the initial charge and the bargained down offense. Then maybe we can see how that has changed the existing law, he said. The point is to look at where the failure was to ensure we don't return to a failure. MR. HENDERSON asked him to describe the graph he was requesting. SENATOR COGHILL clarified that he was looking for a graph that shows the pre and post-Senate Bill 91 possession and trafficking charges, the convictions on the original charges, and the plea bargains. He recalled discussions about the felony charges that were bargained down to misdemeanors. MR. HENDERSON said getting the information that includes both the charge and whether or not it was resolved at a lower charge for both pre and post-Senate Bill 91 will be difficult to get in the allotted time but he'd try. SENATOR COGHILL said the bill goes to finance and it could be answered there. He recalled that the Criminal Justice Commission discussed that bargaining from a felony to a misdemeanor was quite significant pre-Senate Bill 91. You need to show in a chart how it was working before, how it doesn't work now, and how going back will be better, he said. CHAIR SHOWER asked Mr. Henderson if he could get that information to the committee for Senator Coghill. MR. HENDERSON said yes; it's a good point. He added that between 2015 and 2017, the Department of Law saw felony drug prosecutions drop about 70 percent. In part that was because DOL didn't have the tools to address some of the drug trafficking. It was also partially due to reducing felony possession offenses to the misdemeanor level. He suggested it might be helpful for the committee to hear Deputy Commissioner Duxbury describe this phenomenon with drug prosecutions. SENATOR COGHILL said he'd like to hear that and how the felony charge for possession helped police get dealers. 4:43:10 PM MICHEAL DUXBURY, Deputy Commissioner, Department of Public Safety, Anchorage, Alaska, asked him to repeat the two questions. SENATOR COGHILL said the discussion is about returning possession and trafficking schedule IA and schedule IIA drugs to felony level offenses. His question is how many cases were bargained pre-Senate Bill 91 versus now. He said he's trying to find out if the problem was the drug amount or the felony charge on possession and if it was a police problem or a prosecution problem. MR. DUXBURY said that when possession of small amounts of these drugs were no longer felonies, they found that the small dealers weren't interested in cooperating because the sanctions weren't impactful. There was systematic inertia. Then the prosecution didn't have the resources to handle the rising person on person and violent crimes. This all made it difficult for law enforcement to have an impact on the amount of drugs coming into communities. SENATOR COGHILL said he's come to understand that a felony hanging over a small user encourages them to cooperate but he's still interested in looking for ways to help someone turn their life around after they've been charged with a felony. 4:48:21 PM MR. DUXBURY said the best thing they can do for a small time user is to get the person into some form of treatment. When somebody is going to be charged and they decide to cooperate, the negotiations usually involve the prosecutor and the investigator whether it's the local police or the troopers. He said he can't gauge what the impact would be on the individual but DPS is focused on getting the large amounts and maintaining quality of life for the community. He restated that any plea negotiations involve a prosecutor and pre-Senate Bill 91 there was also the discretion to target places to make an impact on the amount of drugs coming into the community. SENATOR COGHILL said he wanted it to be very clear that this is charging people with a felony to get to people who are committing felonies. He agreed that downward pressure is needed but this disregards those people who have been cooperative and need help to turn their lives around. 4:52:15 PM SENATOR MICCICHE said he understands what Senator Coghill is saying and it's one reason he supported Senate Bill 91, but it's not working. He's talked to the troopers in his community about the drug house issue and their hands are tied. He said we're also not thinking about the user/dealer. He hopes to see more use of suspended imposition of sentence to try to negotiate with low level first-time users and help them turn their lives around but meanwhile the carrot won't work if there isn't a stick. He talked about the crime meetings in his community and related that the provision in the disorderly conduct statute to be able to hold someone was important because disorderly conduct can be a precursor to domestic violence. He asked Mr. Duxbury to comment on increasing the maximum hold for disorderly conduct from 24 hours to 10 days. MR. DUXBURY said taking the people who repeatedly victimize others out of circulation for a few days provides a cooling down period that seems to be helpful in breaking the cycle. SENATOR MICCICHE highlighted that a common theme among people who have turned their lives around after convictions for possession of small quantities of drugs is that they didn't realize how far they'd fallen until they were faced with a significant charge. That's why he believes in combining the carrot of treatment with the stick that's the threat of a felony. He expressed hope that prosecutors will use the suspended imposition of sentence tools on first-time offenders. CHAIR SHOWER commented that without the tools to get people into the system, law enforcement is not able to get help for them. SENATOR COGHILL added that the police have said that they can only pick up somebody up and take them to jail. There aren't enough treatment facilities and certainly not enough to divert someone the day they're picked up. He stressed that charging somebody for one thing to encourage them to do something else means that charge will follow that individual for the rest of their life. [Senate Bill 91] intended to avoid that but what happened was there was no longer any leverage to get offenders to change their behavior. The police feel hamstrung because people bounce right out if they go to jail. He reiterated the caution that "we're charging somebody something, to do something else." He said he wanted people to understand, "that's why we're doing this." 4:58:32 PM SENATOR MICCICHE offered his perspective that the only way to get hold of the problem is to impose a consequence for possessing a small quantity of drugs. If the arrest is for possession of meth, for example, the arresting officer probably won't know how the person, who may be a user/dealer, is funding their habit or if they're spreading that habit to others. If they're spreading the habit, their behavior will never change without a substantial consequence. But if the person really is a first timer who is in possession of just a small quantity, he said he hopes law enforcement will use the tools of suspending entry and give the person another chance. SENATOR COGHILL said the proposed statute doesn't provide that latitude but he does agree that there is thievery associated with drug use. CHAIR SHOWER transitioned the discussion by advising both the Department of Law and the Department of Public Safety that he had problems with some of the language in Section 27 regarding terroristic threats. He asked both agencies to be prepared to speak to that section on Thursday. He warned that he would "dive pretty hard" on the DNA swabbing and associated personal privacy issues. He also asked DOC if they had data that shows the numbers of drug possession felonies both pre and post-Senate Bill 91. 5:02:47 PM SENATOR MICCICHE said his request was for clarification that the legal marijuana industry authorized in AS 17 is excepted from the increased penalties involving a controlled substance in Title 11. He said he will also ask about the constitutionality of separating revoked licenses from suspended licenses. If that's not possible, he would evaluate returning both to an arrestable offense. 5:04:08 PM CHAIR SHOWER held SB 32 in committee.