Legislature(2011 - 2012)HOUSE FINANCE 519

04/10/2012 09:00 AM House FINANCE


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09:04:51 AM Start
09:05:53 AM SB151
10:21:08 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ SB 140 CATHINONE BATH SALTS TELECONFERENCED
Scheduled But Not Heard
+ SB 151 FETAL ALCOHOL SPEC. DISORDER AS MITIGATOR TELECONFERENCED
Moved Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
                  HOUSE FINANCE COMMITTEE                                                                                       
                      April 10, 2012                                                                                            
                         9:04 a.m.                                                                                              
                                                                                                                                
                                                                                                                                
9:04:51 AM                                                                                                                    
                                                                                                                                
CALL TO ORDER                                                                                                                 
                                                                                                                                
Co-Chair Stoltze called the  House Finance Committee meeting                                                                    
to order at 9:04 a.m.                                                                                                           
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Representative Bill Stoltze, Co-Chair                                                                                           
Representative Bill Thomas Jr., Co-Chair                                                                                        
Representative Anna Fairclough, Vice-Chair                                                                                      
Representative Mia Costello                                                                                                     
Representative Mike Doogan                                                                                                      
Representative Bryce Edgmon                                                                                                     
Representative Les Gara                                                                                                         
Representative David Guttenberg                                                                                                 
Representative Reggie Joule                                                                                                     
Representative Mark Neuman                                                                                                      
Representative Tammie Wilson                                                                                                    
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
None                                                                                                                            
                                                                                                                                
ALSO PRESENT                                                                                                                  
                                                                                                                                
Senator  Kevin Meyer,  Sponsor; Christine  Marasigan, Staff,                                                                    
Senator  Kevin  Meyer;   Diane  Casto,  Prevention  Manager,                                                                    
Division  of Behavioral  Health,  Department  of Health  and                                                                    
Social   Services;   Kate  Burkhart,   Executive   Director,                                                                    
Advisory Board  on Alcoholism and Drug  Abuse, Department of                                                                    
Health  and  Social   Services;  Leslie  Houston,  Director,                                                                    
Division   of   Administrative   Services,   Department   of                                                                    
Corrections;  Anne  Carpeneti, Assistant  Attorney  General,                                                                    
Legal    Services    Section-Juneau,   Criminal    Division,                                                                    
Department  of  Law;   Kelly  Howell,  Legislative  Liaison,                                                                    
Department of  Public Safety; Nancy Meade,  General Counsel,                                                                    
Alaska Court System.                                                                                                            
                                                                                                                                
PRESENT VIA TELECONFERENCE                                                                                                    
                                                                                                                                
Michael   Jeffery,  Superior   Court  Judge,   Barrow;  Dave                                                                    
Fleurant,  Executive  Director,  Disability  Law  Center  of                                                                    
Alaska; Trish  Smith, Director, Prevention  and Intervention                                                                    
Services,  Volunteers  of  America;  Jeanne  Gerhardt-Cyrus,                                                                    
Self,  Kiana;  Quinlan  Steiner, Director,  Public  Defender                                                                    
Agency, Department of Administration.                                                                                           
                                                                                                                                
SUMMARY                                                                                                                       
                                                                                                                                
CSSB 140(JUD)                                                                                                                   
          CATHINONE BATH SALTS                                                                                                  
                                                                                                                                
          CSSB 140(JUD) was scheduled but not heard.                                                                            
                                                                                                                                
CSSB 151(JUD)                                                                                                                   
          FETAL ALCOHOL SPEC. DISORDER AS MITIGATOR                                                                             
                                                                                                                                
          CSSB 151(JUD)  was REPORTED out of  committee with                                                                    
          a   "do  pass"   recommendation  and   with  three                                                                    
          previously  published zero  notes: FN2  (CRT), FN3                                                                    
          (ADM),  FN4 (COR);  and  one previously  published                                                                    
          indeterminate note: FN5 (LAW).                                                                                        
                                                                                                                                
CS FOR SENATE BILL NO. 151(JUD)                                                                                               
                                                                                                                                
     "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."                                                                                                                 
                                                                                                                                
9:05:53 AM                                                                                                                    
                                                                                                                                
SENATOR  KEVIN MEYER,  SPONSOR,  thanked  the committee  for                                                                    
hearing the  legislation. The bill related  to fetal alcohol                                                                    
spectrum disorder  (FASD) as a mitigating  factor pertaining                                                                    
to sentencing. He  stated that the bill would  not provide a                                                                    
get  out  of  jail  free  card.  He  detailed  that  if  the                                                                    
defendant  was  involved in  arson,  assault,  or a  violent                                                                    
crime, the mitigating factors could  not be used. The intent                                                                    
was  to  have more  appropriate  sentencing  for people  who                                                                    
suffer from FASD;  the proposed law would  not be mandatory,                                                                    
but  would allow  judges  with  sentencing flexibility.  The                                                                    
disorder is caused by maternal  alcohol use during pregnancy                                                                    
resulting in  permanent brain damage, which  can manifest in                                                                    
a variety  of ways. He  relayed that Alaska had  the highest                                                                    
known rate  of FASD in  the United States.  Experts reported                                                                    
that   people   suffering   from  brain   dysfunction   were                                                                    
disproportionately  represented  in  the  nation's  criminal                                                                    
justice system.  Individuals were affected through  no fault                                                                    
of their own  and he stressed that the state  needed to find                                                                    
ways to help them.  He stated that incarcerating individuals                                                                    
with the  disorder taught them  the wrong type  of lifestyle                                                                    
and was  not a  good solution to  the problem.  He expounded                                                                    
that other  alternatives existed including  longer probation                                                                    
periods,  assisted living,  intensive  case management,  and                                                                    
other.  The   sponsor  had  worked  with   the  Alaska  FASD                                                                    
Partnership  group, the  Department  of Law,  and the  Court                                                                    
System   to  determine   the   available  alternatives.   He                                                                    
reiterated that  the costly corrections system  did not work                                                                    
well  for  individuals  inflicted   with  the  disorder.  He                                                                    
summarized   that  the   bill  offered   one  way   to  help                                                                    
individuals  with the  disability by  providing judges  with                                                                    
some flexibility.                                                                                                               
                                                                                                                                
9:11:36 AM                                                                                                                    
                                                                                                                                
Representative Edgmon  spoke in strong support  of the bill.                                                                    
He discussed that a Dillingham  superior court judge who had                                                                    
recently  left the  position had  pointed  to the  challenge                                                                    
that resulted from the broad  prevalence of first and second                                                                    
generation FASD offenders.                                                                                                      
                                                                                                                                
Representative Wilson  asked whether the bill  opened up the                                                                    
door for  more disabilities be added  as mitigating factors,                                                                    
which would force the courts  to decide whether a disability                                                                    
was a determination in the committed crime.                                                                                     
                                                                                                                                
Senator  Meyer  deferred  the  question  to  his  staff.  He                                                                    
believed   that  other   mental  health   disabilities  were                                                                    
currently used as mitigating factors.                                                                                           
                                                                                                                                
CHRISTINE  MARASIGAN, STAFF,  SENATOR  KEVIN MEYER,  replied                                                                    
that it was a slippery  slope related to creating mitigating                                                                    
factors  for every  existing condition;  however, there  was                                                                    
already a  mitigating factor for  mental disease  or defect.                                                                    
The factor  was not specific  to FASD, but  some individuals                                                                    
had tried to  apply it to FASD cases.  The compelling reason                                                                    
for including  the disorder as  a mitigating factor  was due                                                                    
to  its   overwhelming  presence   in  Alaska  and   in  the                                                                    
corrections system.  The legislation focused  on individuals                                                                    
who  committed non-violent  crimes  (e.g.  property or  drug                                                                    
crimes   and   impulsive   behavior).  She   stressed   that                                                                    
individuals  with FASD  had a  mental dysfunction  and could                                                                    
not process  information in the  typical way;  therefore, it                                                                    
was  common for  the  individuals to  reoffend. Without  the                                                                    
mitigating factor the individuals  could be incarcerated for                                                                    
long  periods of  time without  receiving  the needed  help;                                                                    
therefore, upon  release they reoffended. The  bill included                                                                    
a  clause  related to  clear  and  convincing evidence  that                                                                    
required a link between the crime and the disorder.                                                                             
                                                                                                                                
Representative  Wilson wondered  how  the  disorder was  not                                                                    
covered by  current law related  to mental  dysfunction. She                                                                    
surmised  that  courts  could  already  have  the  necessary                                                                    
avenue  established.  She  explained  that  naming  specific                                                                    
disorders  made her  nervous  because it  would  be hard  to                                                                    
determine where to stop.                                                                                                        
                                                                                                                                
Senator  Meyer  replied  that Alaska  Superior  Court  Judge                                                                    
Michael Jeffery  was available to  discuss the  question. He                                                                    
elaborated  that  some  courts  and  judges  felt  that  the                                                                    
current statute could be applied  to FASD, but the bill made                                                                    
the issue clear.                                                                                                                
                                                                                                                                
9:16:48 AM                                                                                                                    
                                                                                                                                
Co-Chair  Thomas  supported  the   bill.  He  discussed  the                                                                    
difficulty  some  of his  Vietnam  War  veteran friends  had                                                                    
experienced  with admitting  that  they  had Post  Traumatic                                                                    
Stress  Disorder (PTSD),  which  had resulted  in death  for                                                                    
various  reasons. He  recalled  that  several veterans  with                                                                    
PTSD had gotten in trouble  legally; however, the courts did                                                                    
not  take  the  disorder   into  consideration  because  the                                                                    
individuals had not  been treated. He had  introduced a bill                                                                    
several  years  earlier  related  to PTSD  as  a  mitigating                                                                    
factor  for  drinking  under   the  influence  and  domestic                                                                    
violence crimes.  He had been  told the legislation  was too                                                                    
dramatic. He  discussed that soldiers returning  from active                                                                    
duty  had trouble  getting counseling,  but  it was  helpful                                                                    
that the  problem had been  identified. He  wondered whether                                                                    
courts would show sympathy to  a person with PTSD who needed                                                                    
counseling.  He  reiterated  that many  veterans  would  not                                                                    
admit to the problem.                                                                                                           
                                                                                                                                
Representative Doogan  looked at page  3, line 24  that read                                                                    
"ability  to cope  with the  ordinary demands  of life."  He                                                                    
wondered whether  the ordinary demands of  life were defined                                                                    
in  statute.   Ms.  Marasigan   responded  that   the  exact                                                                    
definition was not included in  statute. She elaborated that                                                                    
statute did  include antiquated  language related  to mental                                                                    
illness and  disabilities. The legislation took  detail from                                                                    
statute  and the  sponsor had  worked with  Susan Astley,  a                                                                    
pioneer  in  FASD  diagnosis to  ensure  that  language  was                                                                    
clear.  She noted  that several  diagnoses  fell within  the                                                                    
spectrum of the disorder.                                                                                                       
                                                                                                                                
Representative Doogan surmised that  the bill would leave it                                                                    
to the judge to determine  what the ordinary demands of life                                                                    
were  on a  case-by-case basis.  Ms. Marasigan  responded in                                                                    
the  affirmative.  She  detailed  that  with  the  other  19                                                                    
existing  mitigating  factors  there was  latitude  for  the                                                                    
judge to  decide through clear and  convincing evidence that                                                                    
one of the factors  did or did not play a  role in the crime                                                                    
committed.                                                                                                                      
                                                                                                                                
9:21:16 AM                                                                                                                    
                                                                                                                                
Co-Chair Stoltze believed the bill was appropriate.                                                                             
                                                                                                                                
Senator  Meyer  asked  for testimony  to  begin  with  Judge                                                                    
Jeffery.                                                                                                                        
                                                                                                                                
MICHAEL   JEFFERY,  SUPERIOR   COURT   JUDGE,  BARROW   (via                                                                    
teleconference), introduced himself.                                                                                            
                                                                                                                                
Co-Chair Stoltze  asked whether Mr. Jeffery  was speaking on                                                                    
behalf of himself or the court.                                                                                                 
                                                                                                                                
Mr.  Jeffery  clarified  that  he   was  speaking  from  his                                                                    
personal standpoint as  a superior court judge.  He spoke in                                                                    
strong support  of the  legislation. He  was a  court system                                                                    
representative  on the  Alaska FASD  Partnership, served  on                                                                    
the statewide  FAS steering committee,  and was a  member of                                                                    
the Alaska  Juvenile Justice Advisory Committee.  He relayed                                                                    
that  he struggled  with the  issue of  FASD in  the justice                                                                    
system on  a daily basis.  He explained that  any mitigating                                                                    
or  aggravating  factor  had  to   be  shown  by  clear  and                                                                    
convincing  evidence, which  was not  easy; in  order for  a                                                                    
person  to use  the  mitigating factor  they  would have  to                                                                    
prove that they  had been diagnosed with  FASD (the disorder                                                                    
was a spectrum and  impacted individuals in different ways).                                                                    
Individuals would  also be  required to  show that  FASD had                                                                    
affected their  conduct related to  the crime  committed. If                                                                    
the  individual  met  the   clear  and  convincing  evidence                                                                    
standards it opened  the door for the judge  to consider the                                                                    
issues  when sentencing.  He detailed  that  as a  practical                                                                    
matter,  defendants  would  have  to  present  the  judicial                                                                    
officer with meaningful  and applicable program alternatives                                                                    
and other  related to their  FASD condition. He  referred to                                                                    
the  idea as  "smart  justice" and  stressed  that it  would                                                                    
greatly   reduce  costs   to  the   state  to   provide  the                                                                    
appropriate  structure for  affected individuals  in a  more                                                                    
effective  and  humane way.  He  discussed  that there  were                                                                    
statutory limits to  how far a sentence  could be mitigated.                                                                    
He  elaborated that  if the  minimum term  was four  or more                                                                    
years it could not be mitigated  below half; if the term was                                                                    
less than  four years  it was possible  to mitigate  it down                                                                    
more substantially.  He furthered that  there were a  lot of                                                                    
protections to public safety and  humane efforts to meet the                                                                    
needs of the population.                                                                                                        
                                                                                                                                
9:27:10 AM                                                                                                                    
                                                                                                                                
Mr. Jeffrey  recalled a case  he handled in 1990  where FASD                                                                    
had not  fit within the legal  definition surrounding mental                                                                    
disease   or   defect   under  Alaska   Statute   12.47.130;                                                                    
therefore, he  stressed the  importance of  the legislation.                                                                    
He thanked the  committee for its time  and consideration of                                                                    
the bill.                                                                                                                       
                                                                                                                                
Representative  Doogan asked  for  an estimate  of how  many                                                                    
people  appearing  in  court had  the  defect.  Mr.  Jeffrey                                                                    
answered that there  were two ways of looking  at the issue.                                                                    
The  first  related  to how  many  people  appearing  before                                                                    
judges had  been diagnosed  with the  disorder (as  would be                                                                    
required  under the  legislation; the  number was  currently                                                                    
small.  Most diagnoses  occurred  when a  child  was in  the                                                                    
juvenile   justice   or   welfare  system;   however,   some                                                                    
diagnostic teams did diagnose  adults. He believed there was                                                                    
a  significant  (but  unknown) number  of  people  appearing                                                                    
before judges who were affected  by the disorder but had not                                                                    
been  diagnosed.  As  a  result he  had  adapted  by  making                                                                    
paperwork and  his speech more  understandable in  the court                                                                    
room.  Some studies  estimated that  the occurrence  of FASD                                                                    
was  10 times  greater  than Fetal  Alcohol Syndrome  (FAS),                                                                    
which affected facial features and  other. He noted that the                                                                    
question  was difficult  and did  not believe  anyone really                                                                    
knew the answer.                                                                                                                
                                                                                                                                
Representative  Doogan pointed  to the  bill's indeterminate                                                                    
fiscal note.  He was  curious to  know what  the expectation                                                                    
would be in  order to estimate potential  costs. He surmised                                                                    
that  costs  could go  up  if  the diagnoses  increased.  He                                                                    
believed the committee  would like to have  a potential cost                                                                    
estimate as soon as possible.                                                                                                   
                                                                                                                                
Mr.  Jeffrey opined  that  the bill  would  provide a  large                                                                    
savings to  the state.  He referred  to property  crimes and                                                                    
other  that  could  generate  long  jail  terms  for  second                                                                    
offences and discussed that the  idea was to reduce the load                                                                    
on the prison system by allowing  people to get out into the                                                                    
community with  appropriate structure.  He noted  that there                                                                    
could  be a  cost  increase related  to community  treatment                                                                    
programs, but  they would be overwhelmingly  balanced by the                                                                    
great savings  that would result  from moving people  out of                                                                    
jail when it did not benefit society or the individual.                                                                         
                                                                                                                                
9:32:58 AM                                                                                                                    
                                                                                                                                
Representative Edgmon noted that  sometimes a shortcoming of                                                                    
a fiscal note  was the inability to  show potential savings.                                                                    
He  discussed  savings  related to  the  overcrowded  prison                                                                    
system. He believed the total  cost and savings may not ever                                                                    
be  known. He  opined  that savings  would  occur under  the                                                                    
legislation.                                                                                                                    
                                                                                                                                
Co-Chair Thomas  asked how an  individual that may  not know                                                                    
they had FASD  would be would be told about  it; he believed                                                                    
it could  be agitating  to a  person to be  told they  had a                                                                    
disorder.  Mr. Jeffrey  agreed. He  had to  be very  careful                                                                    
when he  suspected a person may  have FASD who had  not been                                                                    
diagnosed. He  detailed that in  some cases he noted  in the                                                                    
judgment  that  a  person  had  "cognitive  impairment"  and                                                                    
recommended  that   correctional  facilities   use  concrete                                                                    
language  and  repetition  to   ensure  that  the  defendant                                                                    
understood.  He emphasized  that  he could  not diagnose  an                                                                    
individual in his  position as a judge. In  order to address                                                                    
the issue  he used  methods such as  speaking in  a concrete                                                                    
way, slowing  down the  hearing, and  using forms  with more                                                                    
concrete language. He would do  what he could and hoped that                                                                    
more diagnosis would occur at a later time.                                                                                     
                                                                                                                                
9:36:03 AM                                                                                                                    
                                                                                                                                
Ms.  Marasigan  relayed  that   experts  were  available  to                                                                    
address questions including how  an individual was diagnosed                                                                    
if  it  was  unknown  whether  a  mother  had  drank  during                                                                    
pregnancy.   Additionally,   there    had   been   extensive                                                                    
discussion related  to the number  of people  the mitigating                                                                    
factor would apply to; the sponsor  did not want to make its                                                                    
use   incredibly   easy   or   impossibly   difficult.   She                                                                    
communicated  that there  had  been a  fine  balance in  the                                                                    
creation of  the bill.  Diane Casto  with the  Department of                                                                    
Health and  Social Services (DHSS) was  available to address                                                                    
the  issues  and  could discuss  the  numbers  of  diagnosed                                                                    
individuals in the  state. Nancy Mead with  the Alaska Court                                                                    
System could  address the  actual number  of court  cases in                                                                    
which FASD may have an impact.                                                                                                  
                                                                                                                                
Senator  Meyer  added that  there  were  four fiscal  notes:                                                                    
three were zero  and one was indeterminate.  The intent with                                                                    
the indeterminate note was to  show a savings. He elaborated                                                                    
that it  cost approximately $40,000 per  year to incarcerate                                                                    
a  person. He  explained  that assisted  living or  assisted                                                                    
care was more  than enough in most cases he  had seen, which                                                                    
could  be provided  at half  the price  of imprisonment.  He                                                                    
reiterated that the intent was to save money.                                                                                   
                                                                                                                                
9:38:27 AM                                                                                                                    
                                                                                                                                
DIANE  CASTO,  PREVENTION  MANAGER, DIVISION  OF  BEHAVIORAL                                                                    
HEALTH,   DEPARTMENT   OF   HEALTH  AND   SOCIAL   SERVICES,                                                                    
introduced herself.  She discussed that the  Office of Fetal                                                                    
Alcohol Syndrome under  DHSS had been started  in 1998 after                                                                    
legislators had made the department  aware of the issue. The                                                                    
office had  initially been funded  by a $300,000  grant from                                                                    
the  Alaska Mental  Health  Trust  Authority. She  explained                                                                    
that the office  had been incorporated into  the Division of                                                                    
Behavioral Health  in 2003. Former  Senator Ted  Stevens had                                                                    
provided an earmark  for FAS efforts, which  had helped fund                                                                    
a statewide  system of diagnostic services.  Currently there                                                                    
was one  specialty team at the  Alaska Psychiatric Institute                                                                    
and teams  in Fairbanks,  Anchorage, Mat-Su,  Kenai, Bethel,                                                                    
Juneau, and Sitka.  Teams in Kodiak and  Dillingham had gone                                                                    
on hiatus  and would hopefully  be reopening in  the future;                                                                    
other locations  were also looking  at beginning  new teams.                                                                    
Since inception,  1,683 individuals had been  diagnosed; the                                                                    
average age of  diagnosis was between the ages  of seven and                                                                    
ten. She  expounded that most  diagnoses did not  take place                                                                    
until  a child  entered the  school system  (particularly in                                                                    
small communities). Diagnoses could  take place beginning at                                                                    
approximately three  years of age  when the  central nervous                                                                    
system could be tested for brain damage.                                                                                        
                                                                                                                                
Ms. Casto shared that the  office averaged approximately 153                                                                    
diagnoses on an  annual basis; 179 cases  had been diagnosed                                                                    
in  2011. The  office  used the  University of  Washington's                                                                    
Four Digit Diagnostic  Code, which was the  gold standard of                                                                    
diagnosis;  it looked  at four  categories including  facial                                                                    
dismorphology (there is a permanent  very specific change of                                                                    
facial  features   directly  related  to   prenatal  alcohol                                                                    
exposure), growth patterns (many  individuals with FASD have                                                                    
significantly less growth), central  nervous system (the key                                                                    
to  determining the  level of  disability,  which looked  at                                                                    
psychological,   speech  and   language,  and   motor  skill                                                                    
testing), and  confirmed maternal  alcohol use  (a diagnosis                                                                    
is  still  possible without  the  confirmed  knowledge of  a                                                                    
mother  drinking).  Often  times   it  was  known  in  small                                                                    
communities  whether  a  mom   drank  during  pregnancy  and                                                                    
doctors frequently  knew if a  mom had a history  of alcohol                                                                    
use.                                                                                                                            
                                                                                                                                
9:45:03 AM                                                                                                                    
                                                                                                                                
Ms. Casto  continued that from  the testing it  was possible                                                                    
to obtain  an analysis of  the person's strengths  and their                                                                    
challenges  (i.e. the  key issues  the person  has the  most                                                                    
difficulty   with   -   memory,   cause   and   effect,   or                                                                    
impulsivity).                                                                                                                   
                                                                                                                                
Representative Wilson asked what  options existed when there                                                                    
was  no  treatment  available  in  a  community.  Ms.  Casto                                                                    
responded  that  the  department  did not  want  to  set  up                                                                    
systems of  care solely  for FASD  because the  disorder had                                                                    
similarities  to  other  mental concerns  and  defects.  The                                                                    
department looked at accommodations  for the disability more                                                                    
than treatment  because FASD was  a lifelong  disability; it                                                                    
worked  to  provide  case   management,  which  addressed  a                                                                    
critical  area of  need, to  work with  individuals to  help                                                                    
guide them  through making good life  decisions. She pointed                                                                    
to a late 1990s University  of Washington study, which found                                                                    
that  80 percent  of people  with prenatal  alcohol exposure                                                                    
needed some form of assisted  living throughout their entire                                                                    
lives; the  finding did not  mean the individuals  needed to                                                                    
live in  a home or  institution, but they needed  someone in                                                                    
their  life to  help with  day-to-day chores.  She discussed                                                                    
that even in  communities without good services  it would be                                                                    
beneficial  if  DHSS  could  provide  training  in  existing                                                                    
services  (i.e. schools  and employers)  related  to how  to                                                                    
work with  individuals with the disability.  She stated that                                                                    
with  the appropriate  accommodations individuals  with FASD                                                                    
could be very successful.                                                                                                       
                                                                                                                                
Representative Edgmon questioned whether  there was a way to                                                                    
determine  how  prevalent the  disorder  was  in Alaska;  he                                                                    
surmised that a range must  exist. He discussed that alcohol                                                                    
use was widespread and was  the principal reason for much of                                                                    
the activity occurring in the criminal justice system.                                                                          
                                                                                                                                
Ms.  Casto responded  that there  was  an FASD  surveillance                                                                    
system through the Alaska Birth  Defects Registry, which was                                                                    
housed  in  the  Division  of   Public  Health;  the  system                                                                    
generated  a prevalence  rate of  the number  of individuals                                                                    
with  the  disability  statewide. She  detailed  that  every                                                                    
disability, excluding  prenatal exposure to alcohol,  had to                                                                    
be reported by  age one; prenatal exposure  to alcohol could                                                                    
be reported  up to  the age  of six.  An individual  did not                                                                    
have to  be diagnosed  to get into  the registry;  a medical                                                                    
notation  that the  mother  drank or  the  suspicion that  a                                                                    
child had  the disability was sufficient.  Case file reviews                                                                    
were conducted  to determine whether  an individual  met the                                                                    
case definition of FAS. There  were existing numbers showing                                                                    
how many  individuals were suspected to  have the disability                                                                    
and how many new people  were added annually. She noted that                                                                    
the department  believed the  numbers were  low, as  not all                                                                    
individuals were  reported. Currently  the rate  showed that                                                                    
15 individuals were born each  year with FAS; the department                                                                    
believed  there  were  approximately 160  additional  births                                                                    
annually that fell somewhere on the FASD spectrum.                                                                              
                                                                                                                                
Co-Chair Stoltze  surmised that the births  showed different                                                                    
manifestations of impact related  to the disorder. Ms. Casto                                                                    
replied in  the affirmative. She elaborated  that the amount                                                                    
of  alcohol,  when  it  was   consumed,  and  other  factors                                                                    
resulted in  different manifestations  of the  disorder. She                                                                    
communicated  that  every  year  160-plus  individuals  were                                                                    
added to the lifelong disability.  She highlighted that a 36                                                                    
percent  decrease in  the number  of  individuals born  with                                                                    
prenatal  exposure  to alcohol  had  been  witnessed in  the                                                                    
division's  last review  of the  prevalence data;  almost 50                                                                    
percent  of  the  decrease  was   among  the  Alaska  Native                                                                    
population.  She  observed  that the  Alaska  Native  health                                                                    
system was doing  an excellent job screening  women early on                                                                    
for  alcohol use.  The  division did  not  know whether  the                                                                    
decrease  was  a trend  and  was  currently working  on  new                                                                    
surveillance  data.  She  noted that  a  long-term  estimate                                                                    
could be done and added  that a significant number of people                                                                    
were impacted.                                                                                                                  
                                                                                                                                
Co-Chair Stoltze  stated that the disorder  was not curable.                                                                    
Ms.  Casto answered  that the  disorder  was life-long,  but                                                                    
early    diagnosis   resulted    in   earlier    appropriate                                                                    
intervention and support that  could improve an individual's                                                                    
lifetime  outcome. She  expounded that  if a  person entered                                                                    
the  correctional system  at the  age of  18 or  19 and  was                                                                    
diagnosed, the appropriate  accommodations could be provided                                                                    
in order to improve their future success.                                                                                       
                                                                                                                                
9:53:18 AM                                                                                                                    
                                                                                                                                
Co-Chair  Thomas  surmised  that   there  would  be  a  cost                                                                    
associated with accommodations  provided after an individual                                                                    
is diagnosed.                                                                                                                   
                                                                                                                                
Co-Chair Stoltze  remarked that additionally there  would be                                                                    
a  mandate under  the Alaska  Mental Health  Trust Authority                                                                    
and increased responsibility.                                                                                                   
                                                                                                                                
Co-Chair Thomas  asked whether there  was an  existing cost.                                                                    
Ms.  Casto answered  in  the  affirmative. She  communicated                                                                    
that  the individuals  were being  served  somewhere in  the                                                                    
system  because they  struggled throughout  their lives  and                                                                    
frequently ended up in the  juvenile justice and foster care                                                                    
systems. The philosophy was to  improve the diagnosis system                                                                    
and  the training  of service  providers in  order to  serve                                                                    
individuals  better   in  the   long-run  and   to  increase                                                                    
efficiencies and cost savings.                                                                                                  
                                                                                                                                
Representative  Joule thanked  Ms. Casto  for her  continued                                                                    
efforts related to  FASD. He observed that  there were costs                                                                    
and  cost savings.  He  stated that  there  were costs  when                                                                    
affected  individuals  began  school,   but  it  helped  the                                                                    
teachers  and others  to know  ahead of  time. He  discussed                                                                    
former Senator  John Binkley  who had  tried to  get warning                                                                    
labels  and  signs posted  in  bars  and liquor  stores.  He                                                                    
pointed  out that  many locations  did  not have  diagnostic                                                                    
teams.  He added  that once  individuals entered  the system                                                                    
(corrections  or otherwise)  it  helped bring  focus to  the                                                                    
issue.                                                                                                                          
                                                                                                                                
9:55:52 AM                                                                                                                    
                                                                                                                                
Co-Chair  Stoltze  thanked Ms.  Casto  and  Mr. Jeffrey  for                                                                    
their testimony and time. Mr.  Jeffery thanked the committee                                                                    
and noted that the issue was very personal.                                                                                     
                                                                                                                                
DAVE FLEURANT, EXECUTIVE DIRECTOR,  DISABILITY LAW CENTER OF                                                                    
ALASKA  (via  teleconference),  vocalized  support  for  the                                                                    
legislation.  He explained  that the  bill would  impact the                                                                    
center in  two areas.  First, the  center did  a significant                                                                    
amount  of   special  education   advocacy  and   there  was                                                                    
currently a  national dynamic  that was  referred to  as the                                                                    
school-to-prison  pipeline  where  youths  were  disciplined                                                                    
through a  referral to the criminal  justice system (special                                                                    
education could go  through the age of 22).  He believed the                                                                    
bill would allow the system  to divert kids and young adults                                                                    
away  from  the  criminal  justice system  to  a  structured                                                                    
setting to  prevent the revolving  door that was  common for                                                                    
people  with  FASD. Second,  the  center  was involved  with                                                                    
individuals with  FASD within the prison  system. The center                                                                    
observed  that  impairments  that brought  individuals  into                                                                    
conflict  with the  law  (e.g.  poor executive  functioning,                                                                    
memory  problems,  and  impaired judgment)  made  them  very                                                                    
susceptible  to  victimization  in  the  prison  system.  He                                                                    
believed  keeping affected  individuals  out  of the  prison                                                                    
system  and  connected  with support  services  as  much  as                                                                    
possible  would benefit  the individuals  and  society as  a                                                                    
whole.                                                                                                                          
                                                                                                                                
10:00:15 AM                                                                                                                   
                                                                                                                                
TRISH   SMITH,   DIRECTOR,   PREVENTION   AND   INTERVENTION                                                                    
SERVICES, VOLUNTEERS OF  AMERICA (via teleconference), spoke                                                                    
in  support  of the  legislation.  She  participated in  the                                                                    
Anchorage Wellness  Court and observed that  individuals who                                                                    
may be successful  in court began to struggle  later and had                                                                    
to return to  jail or were no longer  involved in prevention                                                                    
services. She  believed the bill  would increase  options to                                                                    
help individuals succeed throughout Alaska.                                                                                     
                                                                                                                                
JEANNE  GERHARDT-CYRUS,  SELF, KIANA  (via  teleconference),                                                                    
spoke in support of the legislation.  She was a parent of an                                                                    
individual with FAS who was  in the criminal justice system.                                                                    
She believed  the bill would  provide cost savings  and that                                                                    
it  would be  better for  society and  affected individuals.                                                                    
She shared  that her son  had been a contributing  member of                                                                    
society  when  there had  been  services  in place  such  as                                                                    
assisted  living and  mentors. Without  the services  he had                                                                    
repeatedly  gone  back  to  jail  and  had  learned  how  to                                                                    
function  in prison,  but he  had not  learned how  to be  a                                                                    
better citizen. She believed  providing support and teaching                                                                    
skills  early  on would  help  individuals  and the  broader                                                                    
society.                                                                                                                        
                                                                                                                                
10:03:42 AM                                                                                                                   
                                                                                                                                
KATE  BURKHART,   EXECUTIVE  DIRECTOR,  ADVISORY   BOARD  ON                                                                    
ALCOHOLISM AND  DRUG ABUSE, DEPARTMENT OF  HEALTH AND SOCIAL                                                                    
SERVICES,  expressed   support  for  the   legislation.  She                                                                    
communicated  that the  bill was  the result  of a  long and                                                                    
thoughtful process;  the sponsor  had worked with  the Court                                                                    
System, the  Department of Law, the  Public Defender Office,                                                                    
service  providers, and  advocates on  behalf of  people who                                                                    
experienced FASD, in  order to devise a  balance between the                                                                    
interest  of justice  and  public safety  with  the need  to                                                                    
provide   more  equitable   treatment  to   people  with   a                                                                    
disability that was not currently covered by statute.                                                                           
                                                                                                                                
Co-Chair Stoltze CLOSED public testimony.                                                                                       
                                                                                                                                
Co-Chair Stoltze asked the  Departments of Corrections, Law,                                                                    
and Public  Safety to provide  comments and  their positions                                                                    
on the legislation.                                                                                                             
                                                                                                                                
LESLIE   HOUSTON,  DIRECTOR,   DIVISION  OF   ADMINISTRATIVE                                                                    
SERVICES, DEPARTMENT  OF CORRECTIONS  (DOC), pointed  to the                                                                    
department's  zero  fiscal  note   and  indicated  that  the                                                                    
department had a neutral position  on the bill. She referred                                                                    
to  prior  testimony that  pointed  to  the high  number  of                                                                    
individuals with  FAS in the prison  system and communicated                                                                    
that  it  was  not  possible to  verify  the  actual  number                                                                    
because  screening  had  not been  conducted.  She  believed                                                                    
there  would  be a  shift  in  the  cost to  the  supervised                                                                    
release  of   inmates  if   the  bill's   mitigating  factor                                                                    
shortened sentences.                                                                                                            
                                                                                                                                
Co-Chair Stoltze  asked whether the mitigating  factor would                                                                    
be beneficial  to DOC.  Ms. Houston  replied that  she could                                                                    
not provide  an opinion on  the bill, but believed  it would                                                                    
be helpful for individuals inflicted with the disorder.                                                                         
                                                                                                                                
ANNE CARPENETI,  ASSISTANT ATTORNEY GENERAL,  LEGAL SERVICES                                                                    
SECTION-JUNEAU, CRIMINAL DIVISION,  DEPARTMENT OF LAW (DOL),                                                                    
referenced the  department's indeterminate fiscal  note. The                                                                    
department had  a neutral  stance on the  bill. She  did not                                                                    
disagree  with many  of the  items that  had been  listed in                                                                    
support of the legislation, but  DOL believed there would be                                                                    
an  increase in  the number  of hearings  at sentencing  for                                                                    
people  who had  not  been diagnosed;  once individuals  had                                                                    
been  diagnosed there  would  be  litigation concerning  the                                                                    
effect the diagnosis would have on individual cases.                                                                            
                                                                                                                                
Co-Chair  Stoltze asked  whether the  bill would  hinder the                                                                    
pursuit  of   justice.  Ms.   Carpeneti  responded   in  the                                                                    
negative.  She   elaborated  that  the  bill   would  reduce                                                                    
sentences  for   applicable  individuals.  She   noted  that                                                                    
services would then  be needed to help  the individuals, but                                                                    
she did  not believe it would  be more expensive than  a day                                                                    
in jail.                                                                                                                        
                                                                                                                                
KELLY  HOWELL,  LEGISLATIVE  LIAISON, DEPARTMENT  OF  PUBLIC                                                                    
SAFETY (DPS),  relayed that  DPS had  a neutral  position on                                                                    
the  bill;  however,  based   on  testimony  supporting  the                                                                    
legislation,  DPS   believed  it  would  be   beneficial  to                                                                    
individuals inflicted with FASD  and that it would hopefully                                                                    
relieve potential recidivism of the individuals.                                                                                
                                                                                                                                
10:09:11 AM                                                                                                                   
                                                                                                                                
Representative Wilson asked whether  the departments did not                                                                    
believe  the  legislation   would  produce  enough  positive                                                                    
outcomes to warrant an opinion other than neutral.                                                                              
                                                                                                                                
Ms. Carpeneti  replied that  she had  no reason  to disagree                                                                    
with the  comments that  had been  made by  prior testimony,                                                                    
but DOL had not taken a position on the bill.                                                                                   
                                                                                                                                
NANCY MEADE,  GENERAL COUNSEL, ALASKA COURT  SYSTEM, pointed                                                                    
to earlier  questions related to  the number  of individuals                                                                    
the  mitigating  factor would  apply  to;  the Court  System                                                                    
estimated that  the number  would not  be large  because the                                                                    
majority of  felony cases were  resolved with  plea bargains                                                                    
instead  of  trials.  She  elaborated  that  mitigating  and                                                                    
aggravating factors only  came into play after  a trial with                                                                    
a  guilty verdict  during sentencing.  Out of  approximately                                                                    
6,500  felony charges  the prior  year, there  had been  177                                                                    
trials  with  146  guilty verdicts.  She  explained  that  a                                                                    
significant portion  of the guilty verdicts  would not apply                                                                    
under  the  mitigating  factor   because  they  were  crimes                                                                    
against  people or  arson in  the first  degree, which  were                                                                    
specifically  excluded.  She  did  not  currently  have  the                                                                    
detail from  the prior year  related to the number  of cases                                                                    
the mitigator would apply to.                                                                                                   
                                                                                                                                
Co-Chair Stoltze  asked for verification  that the  bill did                                                                    
not provide a court-rule change.  Ms. Meade responded in the                                                                    
affirmative. She expounded that  at the sentencing hearing a                                                                    
defendant  tried  to  prove  through  clear  and  convincing                                                                    
evidence  that a  mitigating factor  would apply.  There was                                                                    
often a  dispute about whether a  mitigating factor applied;                                                                    
the court anticipated that the  hearings would be handled in                                                                    
the same way as the other existing 19 mitigating factors.                                                                       
                                                                                                                                
Co-Chair  Stoltze asked  whether the  courts would  view the                                                                    
mitigating factor as an expansion  of judicial discretion or                                                                    
as a legislative directive on  a specific statute. Ms. Meade                                                                    
responded that mitigating factors  were seen as an expansion                                                                    
of  discretion. Related  to sentencing,  the  court had  the                                                                    
ability to "go  up to half of the bottom  of the presumptive                                                                    
range if  the range  was four years  and above,"  which gave                                                                    
the court  some movement  area if the  factor was  proven by                                                                    
clear and convincing evidence.                                                                                                  
                                                                                                                                
Co-Chair  Stoltze   asked  whether  the  department   had  a                                                                    
position  on   expanding  judicial  discretion.   Ms.  Meade                                                                    
replied that the  department did not have a  position on the                                                                    
bill.                                                                                                                           
                                                                                                                                
Co-Chair Stoltze commented on  the chief justice's testimony                                                                    
and asked whether he had spoken  on behalf of the court. Ms.                                                                    
Meade  responded   in  the  affirmative.   Co-Chair  Stoltze                                                                    
surmised that the chief justice  had indirectly endorsed the                                                                    
bill. Ms. Meade  declined to answer the  question. She added                                                                    
that more  discretion was typically  viewed by the  judge as                                                                    
helpful. She  discussed the  department's zero  fiscal note.                                                                    
She observed that  there may be some increase  in the number                                                                    
of  sentencing   hearings  or  in  their   length,  but  the                                                                    
department  anticipated that  the number  would not  be high                                                                    
and  that  the  hearings  would be  handled  in  the  normal                                                                    
course, which would not increase costs.                                                                                         
                                                                                                                                
Vice-chair Fairclough questioned  how traumatic brain injury                                                                    
would be  addressed under the other  mitigating factors. She                                                                    
wondered  whether traumatic  brain injuries  would be  taken                                                                    
into  account  for  military servicepersons  and  other  who                                                                    
committed crimes.                                                                                                               
                                                                                                                                
Ms.  Meade replied  that there  was  currently a  mitigating                                                                    
factor (listed on page 3, line  12 of the bill) that enabled                                                                    
defendants to attempt  to prove that they  had committed the                                                                    
offense  while suffering  from a  mental disease  or defect.                                                                    
She continued that the item  was broadly defined and that it                                                                    
was  not clear  whether FASD  was covered.  Defendants could                                                                    
attempt to  prove that PTSD  or other  impairments qualified                                                                    
as a mental disease or  defect under the existing mitigating                                                                    
factor.                                                                                                                         
                                                                                                                                
10:17:44 AM                                                                                                                   
                                                                                                                                
Co-Chair   Stoltze   asked   whether   the   Department   of                                                                    
Administration  anticipated  any   fiscal  impact  from  the                                                                    
legislation.                                                                                                                    
                                                                                                                                
QUINLAN   STEINER,   DIRECTOR,   PUBLIC   DEFENDER   AGENCY,                                                                    
DEPARTMENT OF  ADMINISTRATION (via  teleconference) answered                                                                    
that  he did  not  anticipate  that the  bill  would have  a                                                                    
significant fiscal  impact. He remarked that  there were not                                                                    
consistent rulings  across the  state related to  whether or                                                                    
not  current  statute  applied  to  FASD.  He  believed  the                                                                    
mitigating factor  would make the ruling  clearer, but would                                                                    
not increase or decrease existing litigation.                                                                                   
                                                                                                                                
Co-Chair  Stoltze asked  whether  the bill  was good  public                                                                    
policy and  if it  was fair. Mr.  Steiner believed  the bill                                                                    
was more fair than current policy.  He stated that even if a                                                                    
judge did  not mitigate a  sentence they may make  a finding                                                                    
under the  mitigator that could  serve as the  framework for                                                                    
the  supervision and  sentencing  of afflicted  individuals,                                                                    
which could ultimately benefit the client in the long-term.                                                                     
                                                                                                                                
Co-Chair  Stoltze  wondered  whether the  mitigating  factor                                                                    
would  be  more "just"  than  current  statute. Mr.  Steiner                                                                    
answered  that  recognizing  the  conditions  that  impacted                                                                    
people's  conduct  and  providing  a  framework  for  making                                                                    
services available  would help affected individuals  and the                                                                    
system as a whole.                                                                                                              
                                                                                                                                
Co-Chair  Stoltze made  a clarifying  remark related  to the                                                                    
fiscal notes.                                                                                                                   
                                                                                                                                
Vice-chair Fairclough  MOVED to report CSSB  151(JUD) out of                                                                    
committee   with   individual    recommendations   and   the                                                                    
accompanying fiscal notes. There  being NO OBJECTION, it was                                                                    
so ordered.                                                                                                                     
                                                                                                                                
CSSB  151(JUD) was  REPORTED  out of  committee  with a  "do                                                                    
pass"  recommendation and  with  three previously  published                                                                    
zero  notes:  FN2  (CRT),  FN3 (ADM),  FN4  (COR);  and  one                                                                    
previously published indeterminate note: FN5 (LAW).                                                                             
                                                                                                                                
CS FOR SENATE BILL NO. 140(JUD)                                                                                               
                                                                                                                                
     "An Act classifying certain  substances as schedule IIA                                                                    
     controlled substances and  providing penalties relating                                                                    
     to  those substances;  and providing  for an  effective                                                                    
     date."                                                                                                                     
                                                                                                                                
CSSB 140(JUD) was scheduled but not heard.                                                                                      
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
10:21:08 AM                                                                                                                   
                                                                                                                                
The meeting was adjourned at 10:21 a.m.                                                                                         

Document Name Date/Time Subjects
SB 140 Letter of Support ABADA AMHB.pdf HFIN 4/10/2012 9:00:00 AM
SB 140
SB 140 Letter of Support MOA.pdf HFIN 4/10/2012 9:00:00 AM
SB 140
SB 140 Sponsor Statement v.B.pdf HFIN 4/10/2012 9:00:00 AM
SB 140
SB 140 Support Article ADN 01.24.11.pdf HFIN 4/10/2012 9:00:00 AM
SB 140
SB 140 Support Article ADN 11.15.11.pdf HFIN 4/10/2012 9:00:00 AM
SB 140
SB 140 Support Article Alaska Dispatch 11.07.11.pdf HFIN 4/10/2012 9:00:00 AM
SB 140
SB 140 Support Article Necrotizing Fasciitis due to 'Bath Salts' Injection.pdf HFIN 4/10/2012 9:00:00 AM
SB 140
SB 140 Support Federal Registry.pdf HFIN 4/10/2012 9:00:00 AM
SB 140
SB 140 Support Mat-Su Resolution.pdf HFIN 4/10/2012 9:00:00 AM
SB 140
SB 140 Support MOA Bath Salts Ordinance.pdf HFIN 4/10/2012 9:00:00 AM
SB 140
SB 140 Support SOA Epidemiology Bulletin.pdf HFIN 4/10/2012 9:00:00 AM
SB 140
SB140 Changes.pdf HFIN 4/10/2012 9:00:00 AM
SB 140
CSSB 151 Sponsor Statement version U.pdf HFIN 4/10/2012 9:00:00 AM
SB 151
CSSB 151 Explanation of Changes 4.6.2012.pdf HFIN 4/10/2012 9:00:00 AM
SB 151
SB 151 ADN Article 3.3.12.pdf HFIN 4/10/2012 9:00:00 AM
SB 151
SB 151 Letter of Support Disability Law Center.pdf HFIN 4/10/2012 9:00:00 AM
SB 151
SB 151 Letter of Support FASD Partnership.pdf HFIN 4/10/2012 9:00:00 AM
SB 151
SB 151 Letter of Support Gerhardt-Cyrus.pdf HFIN 4/10/2012 9:00:00 AM
SB 151
SB 151 Support Information FASD Partnership.pdf HFIN 4/10/2012 9:00:00 AM
SB 151
SB 151-Letter of Support-AMHB-ABADA.pdf HFIN 4/10/2012 9:00:00 AM
SB 151
SB 151-Letter of Support-Trust.pdf HFIN 4/10/2012 9:00:00 AM
SB 151