Legislature(2011 - 2012)HOUSE FINANCE 519
04/10/2012 09:00 AM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| SB151 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 140 | TELECONFERENCED | |
| + | SB 151 | TELECONFERENCED | |
| + | 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.