Legislature(2013 - 2014)CAPITOL 120
03/20/2014 01:00 PM House MILITARY & VETERANS' AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB313 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 313 | TELECONFERENCED | |
HB 313-MITIGATING FACTOR: COMBAT-RELATED PTSD
1:06:03 PM
CO-CHAIR FOSTER announced that the only order of business would
be HOUSE BILL NO. 313, "An Act relating to mitigation at
sentencing in a criminal case for a defendant found by the court
to have been affected by combat-related post-traumatic stress
disorder or combat-related traumatic brain injury."
1:06:36 PM
REPRESENTATIVE LES GARA, Alaska State Legislature, prime sponsor
of HB 313, reminded the committee there were questions raised at
the first hearing of the bill on 3/11/14, so veterans' groups
were contacted for more information. The committee wanted to
know if treatment for post-traumatic stress disorder (PTSD) was
offered to veterans in jail, and how those suffering from PTSD
fare while in jail. The answer to the first question was that
the treatment for PTSD is minimal. In answer to the second
question, Representative Gara said PTSD is a problem that
persists for life and which must be managed to avoid the
triggers that cause an event. Incarceration is detrimental to
the management of the disorder, because there is no escape from
potential triggers, and thus "incarceration is not all that
useful." Although the bill does not prevent incarceration, the
mitigator [proposed by the bill] is that the court can reduce
the sentence for a nonviolent crime and hasten treatment. To a
question raised by Representative Gruenberg, he said the bill
applies to combat-related PTSD or traumatic brain injury (TBI).
Representative Gara said Representative Gruenberg suggested
amending the bill to change the identifying term from "combat-
related" to "service-related" for the purpose of including those
who may witness traumatic events. He invited an attorney from
Legislative Legal Services to provide an opinion on this change.
REPRESENTATIVE SADDLER asked whether someone who has been
diagnosed with PTSD is always "considered to be suffering from
PTSD."
REPRESENTATIVE GARA opined the term would be viewed as
pejorative and would be interpreted by the court as "has PTSD,
has traumatic brain injury."
1:11:04 PM
CO-CHAIR LEDOUX observed the term "suffering" is commonly
associated with an illness.
REPRESENTATIVE SADDLER clarified that his question was: After
one has been diagnosed with PTSD, whether the condition can
"flare-up."
REPRESENTATIVE GRUENBERG pointed out the proposed amendment is
to existing statute, and the terms will be construed the same
way as in the same statute. He directed attention to the bill
beginning on page 3, paragraph 18, line 15, which read:
defendant committed the offense while suffering from a
mental disease or defect as
REPRESENTATIVE GRUENBERG expressed his belief that it would
depend upon the facts of the case, but if one were diagnosed,
then as a matter of law "probably you're suffering from it."
REPRESENTATIVE GARA agreed that the term used is consistent with
existing statute, but said he would accept a better term.
REPRESENTATIVE GRUENBERG said it is important that the term is
consistent.
REPRESENTATIVE SADDLER asked how and who would determine that
"the defendant's judgment, behavior, capacity to recognize
reality, or ability to cope with the demands of life was
substantially impaired by the PTSD."
1:14:17 PM
REPRESENTATIVE GARA explained that for mitigators the burden is
on the defendant to provide expert testimony, such as from a
psychologist or someone with expertise on this topic. Further,
the expert would have to testify that active PTSD contributed to
the defendant committing the nonviolent crime, which may be
countered by the prosecution, thus the judge would have to
decide.
REPRESENTATIVE GRUENBERG added that the burden must be proven by
clear and convincing evidence, and he suggested that the
questions should be directed to an expert witness.
QUINLAN STEINER, Director, Central Office, Public Defender
Agency, Department of Administration, advised that the burden of
proof is clear and convincing [evidence], and that question
would be decided by a judge. Typically, the defense would
secure an expert to evaluate the client and their testimony
would be presented to the judge.
REPRESENTATIVE SADDLER asked whether PTSD has been used as a
mitigator or aggravator related to illegal activity in any
Alaska state court.
1:17:16 PM
MR. STEINER said yes. The question has often been debated in
another section of the mitigator statute, and has been applied.
Mr. Steiner remarked:
This particular mitigator would make it absolutely
clear that it would apply, which is always good
because the one - the mental health mitigator - is
quite broad and there's a lot of debate that goes into
what qualifies, and this would end that debate.
REPRESENTATIVE GRUENBERG asked for clarification on the use of
the word "suffering."
MR. STEINER advised the foregoing is not an issue. If one is
diagnosed, and one's behavior is affected, it would be applied.
1:18:43 PM
REPRESENTATIVE GRUENBERG moved to adopt Amendment 1, labeled 28-
LS1161\U.1, Strasbaugh, 3/14/14 which read:
Page 1, line 2:
Delete "combat-related"
Insert "military-service-related"
Page 1, line 3:
Delete "combat-related"
Insert "military-service-related"
Page 3, line 30, through page 4, line 11:
Delete all material and insert:
"(21) except in the case of an offense
defined under AS 11.41 or AS 11.46.400, the defendant
committed the offense while suffering from a condition
diagnosed as military-service-related post-traumatic
stress disorder or military-service-related traumatic
brain injury that resulted from active duty in the
armed forces of the United States, and the military-
service-related post-traumatic stress disorder or
military-service-related traumatic brain injury
(A) substantially impaired the defendant's
judgment, behavior, capacity to recognize reality, or
ability to cope with the ordinary demands of life; and
(B) though insufficient to constitute a
complete defense, significantly affected the
defendant's conduct."
CO-CHAIR FOSTER objected for the purpose of discussion.
REPRESENTATIVE GARA explained the bill directed that the
mitigator applies in the event of combat-related TBI or PTSD.
Representative Gruenberg had suggested to the sponsor that there
are instances where a service member would witness such events
while not in combat. Service-related is already defined in
statute, thus Amendment 1 uses the definition of service-related
that is in Alaska statute. He said making the change is up to
the committee.
1:20:06 PM
CO-CHAIR LEDOUX posed the scenario of a service member with an
office job in Alaska who was injured in an automobile accident,
and asked if that injury would be applicable.
REPRESENTATIVE GARA pointed out that the defendant needs to
prove that the injury was military-service-related and was
acquired while serving the country; if so, the mitigator would
apply.
CO-CHAIR LEDOUX surmised an accident could happen off-base, but
while [a service member was] serving in the military.
REPRESENTATIVE GARA said he was unsure, and similar
circumstances would probably have to be litigated.
1:22:31 PM
KATHLEEN STRASBAUGH, Attorney, Legislative Legal Counsel,
Legislative Legal Services, Legislative Affairs Agency, agreed
with Representative Gara that the abovementioned circumstances
would be litigated; however, "resulted from active duty" means
engaged in some kind of activity related to one's service. She
cautioned that one cannot be sure of an outcome in court.
REPRESENTATIVE HUGHES asked for the definition of military-
service-related.
MS. STRASBAUGH, for Amendment 1, said she used the generic
definition found in the "retirement section" that designates
"active duty in the U.S. armed services."
REPRESENTATIVE SADDLER asked whether the sponsor considered
extending the protection of the mitigator to those who suffer
PTSD from other than military-service-related causes.
REPRESENTATIVE GARA stated that anyone with PTSD should be
treated equally; on the other hand, when all defendants - even
those who have not served in the military - can claim their
actions are affected by PTSD, there will be some who do not tell
the truth. He cautioned that the bill has a better chance of
passing as it is currently written. The [Section 1, AS
12.55.155(d), paragraph (18)] mitigator is not clear on whether
PTSD and TBI are covered, although autism is clearly covered.
Representative Gara stressed that the intent of HB 313 is to
protect members of the military.
1:27:14 PM
REPRESENTATIVE GRUENBERG asked Ms. Strasbaugh for the citation
of the retirement statutes that she previously referenced.
MS. STRASBAUGH responded AS 14.25.220 and AS 39.35.680.
REPRESENTATIVE REINBOLD noted her concern about "opening the
tent too big," and opined the bill as written would be more
likely to pass. She asked how many other states have passed
similar legislation.
REPRESENTATIVE GARA advised that every state's criminal code is
very different, and he was unsure how to find an accurate
answer. Moreover, the hope is that "the committee would just
decide this based on whether they think it's a good idea and not
whether or not other states have done it in their very different
criminal law systems." He added that California and Minnesota
have similar veteran-specific legislation.
REPRESENTATIVE REINBOLD asked whether the other states use
military-service-related or combat-related.
REPRESENTATIVE GARA did not know.
1:30:28 PM
CO-CHAIR LEDOUX preferred the bill as written. She directed
attention to [AS 12.55.155(d), paragraph] 18, and questioned why
PTSD would not be considered a mental disease or defect.
REPRESENTATIVE GARA responded to Representative Reinbold's prior
question and said in California and Minnesota the legislation
applies to service-related and not combat-related. He then
advised that [paragraph] 18 in the abovementioned statute covers
mental disease or defect, which leads to two problems. First,
many veterans with PTSD do not consider their condition a defect
or disease, and resist using this defense. Second, PTSD may not
be a disease or defect but is an injury, which creates a gray
area in law. The bill would erase all doubt thus precluding
further litigation.
REPRESENTATIVE GRUENBERG clarified that the term combat-related
in the bill may technically depend upon where the person was at
the moment of injury. He gave personal examples of military
members under stressful conditions albeit outside of a
declaration of war.
REPRESENTATIVE HUGHES questioned whether there was a way to add
those injured in high-risk, noncombat-related incidents, such as
training exercises. She did not support Amendment 1 as written.
1:36:44 PM
REPRESENTATIVE GRUENBERG observed that veterans have difficulty
getting the government to cover and diagnose their conditions
because of the expense of medical and psychiatric treatment.
The bill would bring a condition to the attention of the court
at a sentencing hearing, and the court would make the decision.
He warned that moving away from the specific aspect of
sentencing defeats the purpose of the bill, and encouraged the
committee to be "overinclusive."
REPRESENTATIVE HUGHES directed attention to two background
points of interest to her: how many veterans are incarcerated
in Alaska, and whether Alaska has veteran's courts.
REPRESENTATIVE GARA answered that he does not have Alaska-
specific statistics. Further, the bill only applies in state
courts and veteran's courts apply federal statutes.
REPRESENTATIVE HUGHES asked whether the Department of
Corrections or the Department of Military & Veterans' Affairs
would have intake information on inmates.
REPRESENTATIVE GARA did not know. He pointed out that many who
suffer from PTSD are undiagnosed.
1:40:33 PM
LAURA BROOKS, Health Care Administrator, Office of the
Commissioner - Anchorage, Department of Corrections (DOC),
informed the committee DOC does ask inmates whether they have
veterans' benefits; however, medical information is not
electronically tracked thus statistics are not available. If
symptoms of PTSD are known and an inmate is willing to be
referred to the DOC mental health staff for evaluation, his or
her condition could be accounted for, but not the cause of the
injury.
REPRESENTATIVE SADDLER confirmed that the State of Alaska does
not have a veterans' court, but the Municipality of Anchorage
has a diversion program for veterans. He provided the following
statistics on PTSD: In America, about 60 percent of men and 50
percent of women experience at least one traumatic event, and of
those who do, about 8 percent of men and about 20 percent of
women will develop PTSD; for events like combat and sexual
assault, a higher percentage develops PTSD.
REPRESENTATIVE REINBOLD reminded the committee of the burden of
federal debt and a potential cost to the military; on the other
hand, Amendment 1 may decrease prison costs. She expressed
concern about a military member who may suffer PTSD after a
sexual assault.
1:43:55 PM
CO-CHAIR LEDOUX asked Representative Reinbold what the proposed
legislation would cost the military.
REPRESENTATIVE REINBOLD deferred to experts in military and
veterans' affairs.
REPRESENTATIVE GARA said the bill applies after a veteran is
convicted of a crime. At the time of sentencing, the defendant
would need to prove that his or her PTSD was caused by combat or
military service by providing testimony from an expert, who
would be paid for by the public defender (PD). He surmised that
the expert may be from the Department of Veterans' Affairs (VA),
Veterans' Benefits Administration, and if the PD is not charged
for the testimony, there would be a small cost to VA.
CO-CHAIR LEDOUX stated that the bill would not mandate that VA
provides expert testimony.
REPRESENTATIVE GARA said correct.
1:46:45 PM
REPRESENTATIVE SADDLER shared his concern about the effect of
Amendment 1. Restricting mitigation to combat-related [PTSD]
preserves the intent of HB 313.
REPRESENTATIVE GARA pointed out that in Amendment 1 the
definition of service-related pertains to active duty.
1:48:23 PM
CO-CHAIR FOSTER removed his objection to Amendment 1.
1:49:00 PM
The committee took a brief at-ease.
1:49:39 PM
CO-CHAIR FOSTER maintained his objection to Amendment 1.
REPRESENTATIVE GRUENBERG restated his intent in offering
Amendment 1, and asked whether anyone who had acquired PTSD
while on active duty, but that was not combat-related, wished to
testify on this topic.
1:50:52 PM
REPRESENTATIVE SADDLER raised a point of order.
1:51:22 PM
The committee took an at-ease from 1:51 p.m. to 1:52 p.m.
1:52:19 PM
REPRESENTATIVE GRUENBERG withdrew the motion to adopt Amendment
1. There being no objection, it was so ordered.
1:53:31 PM
CO-CHAIR FOSTER reopened public testimony on HB 313.
1:53:45 PM
MICHAEL KOCHER said he was an Alaskan and a U.S. Marine Corps
veteran from Eagle River. He supported expanding the bill to
cover noncombat military service member victims of sexual
assault because they suffer PTSD rates that are higher than
those who have seen direct combat. According to VA, if a
service member were deployed to areas that are considered combat
zones that would be a combat deployment, even if he or she never
left the base. Mr. Kocher expressed his personal belief that HB
313 is a good idea and he said he supports the legislation.
REPRESENTATIVE SADDLER appreciated Mr. Kocher's clarification.
REPRESENTATIVE GARA opined Mr. Kocher's testimony complies with
the intent of HB 313.
REPRESENTATIVE REINBOLD suggested that the House Judiciary
Standing Committee (HJUD) should determine whether sexual
assault cases are included or excluded.
REPRESENTATIVE GRUENBERG, in view of the large number of sexual
assault cases forthcoming, offered to restate his motion to
adopt Amendment 1 in order to declare the committee's intent
that sexual assault cases would be covered by the bill.
REPRESENTATIVE SADDLER said he would oppose the amendment.
1:58:58 PM
REPRESENTATIVE HUGHES said she would not object to HJUD looking
at instances of injuries as a result of sexual assault and of
combat training exercises.
CO-CHAIR FOSTER agreed.
CO-CHAIR LEDOUX suggested there is a need for a mitigator in
legislation for all victims of sexual assault.
2:00:29 PM
CO-CHAIR FOSTER, after ascertaining no one else wished to
testify, closed public testimony on HB 313.
REPRESENTATIVE GRUENBERG said the comments regarding the bill
are helpful.
REPRESENTATIVE SADDLER said the proposed legislation will
provide a way to allow for veterans who return home with hidden
scars.
2:01:25 PM
CO-CHAIR LEDOUX moved to report HB 313 out of committee with
individual recommendations and the accompanying fiscal notes.
There being no objection, HB 313 was reported out of the House
Special Committee on Military and Veterans' Affairs.
2:01:47 PM
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