04/02/2012 09:00 AM Senate FINANCE

SENATE BILL NO. 151                                                                                                           
                                                                                                                                
     "An  Act  relating to  mitigation  at  sentencing in  a                                                                    
     criminal case  for a  defendant found  by the  court to                                                                    
     have  been   affected  by  a  fetal   alcohol  spectrum                                                                    
     disorder."                                                                                                                 
                                                                                                                                
9:51:32 AM                                                                                                                    
                                                                                                                                
SENATOR KEVIN MEYER,  introduced SB 151. He  referred to the                                                                    
Sponsor Statement (copy on file).                                                                                               
                                                                                                                                
     SB 151  would include Fetal Alcohol  Spectrum Disorders                                                                    
     (FASD)  as a  mitigating  factor in  sentencing.   This                                                                    
     would  allow  some  flexibility in  sentencing  if  the                                                                    
     defendant is found by the  court to be affected by FASD                                                                    
     and   this   condition   substantially   impaired   the                                                                    
     defendant's   judgment,  behavior,   and  capacity   to                                                                    
     recognize reality or ability  to cope with the ordinary                                                                    
     demands of life.                                                                                                           
                                                                                                                                
     Individuals  diagnosed with  a  fetal alcohol  spectrum                                                                    
     disorder  (FASD)   are  disproportionately  represented                                                                    
     within Alaska's  criminal justice system.   SB 151 does                                                                    
     not require  a judge to  use the mitigating  factor and                                                                    
     it   DOES  NOT   automatically  adjust   a  presumptive                                                                    
     sentence.  The defense would  have to provide clear and                                                                    
     convincing  evidence  that the  defendant's  disability                                                                    
     significantly  affected  the  defendant's  conduct  and                                                                    
     substantially   impaired    judgment,   behavior,   and                                                                    
     capacity  to recognize  reality in  order to  apply the                                                                    
     mitigating factor.                                                                                                         
                                                                                                                                
     Evidence  shows  that   directing  people  with  mental                                                                    
     illness   and  other   brain  disorders   to  supported                                                                    
     services,  both  inside  and  outside  of  Corrections,                                                                    
     significantly  reduces the  high  financial and  social                                                                    
     costs associated with  re-incarceration and recidivism.                                                                    
     Felons and  repeat offenders with FASD  are more likely                                                                    
     to stop committing crimes when  they are given the same                                                                    
     supports that  benefit people  with mental  illness and                                                                    
     other  disabilities,  which   can  include  Therapeutic                                                                    
     Court,   housing   and  employment   assistance,   case                                                                    
     management, counseling and rehabilitation.                                                                                 
                                                                                                                                
Co-Chair Stedman noted the three  zero fiscal notes from the                                                                    
Department of  Corrections (DOC), DOA, and  the Alaska Court                                                                    
System. He  also pointed out  the indeterminate  fiscal note                                                                    
from the Department of Law (DOL).                                                                                               
                                                                                                                                
ANNIE  CARPENETI,  CRIMINAL   DIVISION,  DEPARTMENT  OF  LAW                                                                    
(DOL), testified  that the reason  the fiscal note  from DOL                                                                    
was considered  indeterminate was because in  order to apply                                                                    
the mitigating  factor, it would  allow the court  to reduce                                                                    
the sentence  to 50  percent below the  range or  reduce the                                                                    
sentence  to  zero.  She expressed  concern  for  the  bill,                                                                    
because  it was  not  easy or  inexpensive  to diagnose  the                                                                    
illness.  She stressed  that  individuals  were required  to                                                                    
prove by  clear and  convincing evidence that  they suffered                                                                    
from  the disease,  but if  the  prosecution disagreed  with                                                                    
that position, the prosecution would  be required to provide                                                                    
evidence and  testimony in the  contrary. She  stressed that                                                                    
the  sentencing  hearings in  this  area  would probably  be                                                                    
longer  and more  expensive, because  of  the testimony  and                                                                    
evidence that would need to be adduced at sentencing.                                                                           
                                                                                                                                
9:56:45 AM                                                                                                                    
                                                                                                                                
KATE  BURKHART, MEMBER,  ADVISORY  BOARD  ON ALCOHOLISM  AND                                                                    
DRUG  ABUSE, JUNEAU,  testified in  support of  SB 151.  She                                                                    
noted that the cost  of intensive mitigating case management                                                                    
was  approximately $50  a day,  and incarceration  was about                                                                    
$150 a day.  He felt that this  bill was a result  of a long                                                                    
and  thoughtful  collaboration,  and would  save  the  State                                                                    
money.                                                                                                                          
                                                                                                                                
TRISH   SMITH,  VOLUNTEERS   OF   AMERICA,  ANCHORAGE   (via                                                                    
teleconference), spoke in support of  SB 151. She hoped that                                                                    
it would be very beneficial to those affected by FASD.                                                                          
                                                                                                                                
DEB EVENSEN,  DIRECTOR, FETAL ALCOHOL  CONSULTATION TRAINING                                                                    
SERVICES, HOMER  (via teleconference), testified  in support                                                                    
of  SB 151.  She felt  that the  bill would  save the  State                                                                    
money and help the recidivism rate.                                                                                             
                                                                                                                                
Senator Meyer stated that he  had received a note from Judge                                                                    
Jeffrey that expressed  support of SB 151.  He stressed that                                                                    
the  program  fit  into  the   Smart  Justice  Program,  and                                                                    
appreciated the support of the committee.                                                                                       
                                                                                                                                
SB  151  was  HEARD  and   HELD  in  committee  for  further                                                                    
consideration.