04/06/2012 01:00 PM House JUDICIARY

       SB 151 - FETAL ALCOHOL SPEC. DISORDER AS MITIGATOR                                                                   
                                                                                                                                
[SB 151 was treated  as the vehicle in lieu of  HB 367, the House                                                               
companion bill.]                                                                                                                
                                                                                                                                
1:09:27 PM                                                                                                                    
                                                                                                                                
VICE CHAIR  THOMPSON announced that  the final order  of business                                                               
would be  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."                                                                                                             
                                                                                                                                
VICE CHAIR  THOMPSON explained  that SB 151  would be  treated as                                                               
the vehicle in lieu of HB 367, the House companion bill.                                                                        
                                                                                                                                
1:10:09 PM                                                                                                                    
                                                                                                                                
SENATOR  KEVIN MEYER,  Alaska State  Legislature, sponsor,  first                                                               
noting  that [CSSB  151(JUD) and  CSHB  367(HSS)] are  identical,                                                               
explained that SB  151 would add fetal  alcohol spectrum disorder                                                               
(FASD) to  the statutory list  of possible mitigating  factors at                                                               
sentencing   [for  felonies].     However,   SB  151's   proposed                                                               
mitigating factor would not be  available to defendants convicted                                                               
of [offenses  against the  person or  the crime  of arson  in the                                                               
first  degree -  AS 11.41  or AS 11.46.400,  respectively].   The                                                               
intent of the bill is  to provide more appropriate sentencing for                                                               
those who  suffer from a  FASD, those  who, as a  population, are                                                               
disproportionately  represented  in   Alaska's  criminal  justice                                                               
system.  For defendants with  a FASD, providing for longer prison                                                               
sentences   isn't   helpful;   instead,  providing   for   longer                                                               
probation/parole   periods,   intensive  case   management,   and                                                               
assisted  living  services  is,   and  is  much  less  expensive.                                                               
Providing  the   court  with  more  sentencing   flexibility  for                                                               
defendants  with a  FASD, as  SB 151  is proposing  to do,  seems                                                               
appropriate, he remarked, particularly  given that Alaska has the                                                               
highest rate of FASD in the  nation.  In conclusion, he indicated                                                               
that the  bill has been  vetted by  the Department of  Law (DOL),                                                               
the Alaska Court System (ACS),  the Alaska Fetal Alcohol Spectrum                                                               
Disorders  (FASD) Partnership,  and numerous  other advocates  of                                                               
those with a FASD.                                                                                                              
                                                                                                                                
1:16:39 PM                                                                                                                    
                                                                                                                                
CHRISTINE  MARASIGAN, Staff,  Senator Kevin  Meyer, Alaska  State                                                               
Legislature,  on behalf  of the  sponsor, Senator  Meyer, and  in                                                               
response to  a question,  confirmed that  in the  bill's proposed                                                               
new  AS 12.55.155(d)(20),  the  wording, "significantly  affected                                                           
the  defendant's  conduct" refers  to  the  criminal conduct  for                                                           
which the defendant is being sentenced.                                                                                         
                                                                                                                                
SENATOR MEYER  concurred, and, in  response to  another question,                                                               
relayed  that under  SB 151  as currently  written, the  proposed                                                               
mitigating  factor   would  only   be  available   in  situations                                                               
involving what he termed non-violent  crimes, because it was felt                                                               
that  those who  commit  violent crimes  warrant being  sentenced                                                               
under Alaska's  existing presumptive sentencing  range regardless                                                               
of  whether   they  suffer   from  a  FASD.     He   offered  his                                                               
understanding that most of the  crimes defendants with a FASD are                                                               
convicted of and sentenced for  are non-violent, and acknowledged                                                               
that  under a  previous version,  the bill's  proposed mitigating                                                               
factor  would have  been  available for  any  crime committed  by                                                               
someone with a FASD.                                                                                                            
                                                                                                                                
REPRESENTATIVE  LYNN  expressed  disfavor with  having  SB  151's                                                               
proposed  mitigating factor  be available  to those  convicted of                                                               
theft crimes.                                                                                                                   
                                                                                                                                
MS. MARASIGAN  concurred with Senator Meyer's  remarks, and noted                                                               
that  people with  a  FASD have  impulsive  behavior, are  easily                                                               
influenced by their peers, have  difficulty making decisions, and                                                               
are not  helped by  simply being  given longer  prison sentences.                                                               
Instead,  providing  defendants  with  a  FASD  with  the  proper                                                               
supervision is what  tends to lower their recidivism  rates.  She                                                               
noted that  the bill's proposed  new AS 12.55.155(d)(20)  says in                                                               
part, "except  in the case of  an offense defined under  AS 11.41                                                           
or  AS 11.46.400",  thereby  precluding  the proposed  mitigating                                                           
factor from being available for any such crime.                                                                                 
                                                                                                                                
SENATOR MEYER  added that in  terms of sentencing someone  with a                                                               
FASD,   providing   for   a  mitigating   factor   fits   better,                                                               
particularly  when  the  underlying crimes  are  non-violent  and                                                               
there is more hope for rehabilitation.                                                                                          
                                                                                                                                
1:22:52 PM                                                                                                                    
                                                                                                                                
MICHAEL  I.  JEFFERY,  Judge, Second  Judicial  District  Barrow,                                                               
Alaska Superior Court, Alaska Court  System (ACS); Member, Alaska                                                               
Juvenile   Justice  Advisory   Committee  (AJJAC),   Division  of                                                               
Juvenile Justice (DJJ), Department  of Health and Social Services                                                               
(DHSS);   Member,  Steering   Committee,  Alaska   Fetal  Alcohol                                                               
Spectrum   Disorders  (FASD)   Partnership,  Advisory   Board  on                                                               
Alcoholism and Drug Abuse (ABADA),  Division of Behavioral Health                                                               
(DBH), Department  of Health and  Social Services  (DHSS), noting                                                               
first that  he was  not speaking  on behalf  of the  Alaska Court                                                               
System (ACS),  expressed appreciation  for the approach  taken by                                                               
SB 151, that  of adding FASD to the list  of potential mitigating                                                               
factors  at  sentencing.    Providing   an  example  involving  a                                                               
defendant  with  a FASD  who'd  committed  a property  crime,  he                                                               
offered  his belief  that  such people  aren't  helped by  longer                                                               
prison sentences.   He  then indicated that  under the  bill, the                                                               
defendant  would first  have to  prove, by  clear and  convincing                                                               
evidence,  both that  he/she does  indeed have  a FASD,  and that                                                               
that particular FASD significantly  affected his/her conduct; the                                                               
court  could then  decide whether  or  not to  impose a  sentence                                                               
below the presumptive  range set out in statute.   In conclusion,                                                               
he  said he  supports SB  151 very  much, believing  that certain                                                               
sentences for  non-violent offenses committed by  defendants with                                                               
a  FASD  could  be  mitigated and  become  more  effective  while                                                               
decreasing costs to the criminal  justice system.  In response to                                                               
questions,  he relayed  that the  court wouldn't  be treating  SB
's proposed  mitigating factor any differently  than it treats                                                               
any of the other mitigating factors already outlined in statute.                                                                
                                                                                                                                
REPRESENTATIVE  GRUENBERG   questioned  whether  the   court  has                                                               
addressed  the constitutionality  of AS  12.55.155 -  the statute                                                               
pertaining to factors in aggravation and mitigation.                                                                            
                                                                                                                                
JUDGE   JEFFERY   noted   that   the   court   has   upheld   the                                                               
constitutionality of  Alaska's presumptive sentencing  ranges set                                                               
out in  AS 12.55.125 -  the statute pertaining to  sentencing for                                                               
felonies.                                                                                                                       
                                                                                                                                
MS.  MARASIGAN, in  response to  a question,  mentioned that  the                                                               
Public Defender  Agency (PDA)  submitted a  zero fiscal  note for                                                               
SB 151 and provided testimony during  the bill's Senate committee                                                               
hearings,  and that  the bill  as currently  written was  crafted                                                               
with input from the PDA.                                                                                                        
                                                                                                                                
1:38:44 PM                                                                                                                    
                                                                                                                                
TRISH  SMITH,  Director,   Prevention  &  Intervention  Services,                                                               
Volunteers  of   America  Alaska,  said  she   supports  SB  151,                                                               
considering its  adoption necessary in order  to help [defendants                                                               
with a  FASD] be successful  and avoid reoffending.   Offering an                                                               
example of a defendant with a  FASD who wasn't able to understand                                                               
given  directions,  she  indicated  that such  people  are  often                                                               
unable to make the same  mental connections that others without a                                                               
FASD make with ease on a regular basis.                                                                                         
                                                                                                                                
1:43:57 PM                                                                                                                    
                                                                                                                                
QUINLAN  STEINER,  Director,   Central  Office,  Public  Defender                                                               
Agency (PDA), Department of Administration  (DOA), in response to                                                               
questions, recounted  his understanding of how  the court already                                                               
addresses  mitigating   factors;  surmised  that   any  defendant                                                               
correctly found competent  enough to stand trial  for purposes of                                                               
being  convicted would  also  be competent  enough  to prove  the                                                               
existence  of  the proposed  mitigating  factor  for purposes  of                                                               
sentencing;  and predicted  that under  SB 151,  illustrating the                                                               
required nexus  between the  condition and  the conduct  won't be                                                               
difficult in situations  where the defendant is  diagnosed with a                                                               
FASD.                                                                                                                           
                                                                                                                                
REPRESENTATIVE  GRUENBERG referred  to the  language in  proposed                                                               
new AS  12.55.155(d)(20) that said  a FASD "means a  condition of                                                           
impaired brain function  in the range of  permanent birth defects                                                           
caused by maternal consumption of  alcohol during pregnancy", and                                                           
questioned  how  the existence  of  a  FASD would  be  determined                                                               
absent any information about or from the mother.                                                                                
                                                                                                                                
MS. MARASIGAN  pointed out that  there is already a  procedure in                                                               
place  for  determining the  existence  of  a mental  disease  or                                                               
defect - an  existing mitigating factor - and  explained that the                                                               
intention  is for  the  same  sort of  procedure  to  be used  to                                                               
determine the existence of a  FASD - SB 151's proposed mitigating                                                               
factor.                                                                                                                         
                                                                                                                                
1:53:17 PM                                                                                                                    
                                                                                                                                
L.  DIANE  CASTO,  Prevention  and  Early  Intervention  Manager,                                                               
Prevention and  Early Intervention Services Section,  Division of                                                               
Behavioral  Health   (DBH),  Department  of  Health   and  Social                                                               
Services (DHSS),  after providing some information  about how the                                                               
presence of  a FASD is currently  being diagnosed via the  use of                                                               
diagnostic teams,  added that for  purposes of SB  151's proposed                                                               
mitigating factor,  determining the presence  of a FASD,  and the                                                               
specific impacts of that FASD  on the defendant, is possible even                                                               
absent information from or about the defendant's mother.                                                                        
                                                                                                                                
REPRESENTATIVE  GRUENBERG  noted  that  the  bill  also  contains                                                               
language requiring  of the FASD  that it  "substantially impaired                                                           
the  defendant's   judgment,  behavior,  capacity   to  recognize                                                           
reality, or ability to cope with the ordinary demands of life".                                                             
                                                                                                                                
MS. CASTO,  in response to  further questions,  acknowledged that                                                               
the  aforementioned  diagnostic  teams   could  serve  as  expert                                                               
witnesses, and  indicated that  obtaining a  diagnosis of  a FASD                                                               
would  be  incumbent on  the  defendants  themselves -  or  their                                                               
families or  defense counsel - whereas  defendants who've already                                                               
been  accurately diagnosed  in the  past as  having a  FASD won't                                                               
have to be re-diagnosed in order to comply with the bill.                                                                       
                                                                                                                                
2:06:23 PM                                                                                                                    
                                                                                                                                
RICHARD  SVOBODNY,  Deputy   Attorney  General,  Central  Office,                                                               
Criminal  Division,  Department  of  Law (DOL),  in  response  to                                                               
questions,  explained that  just as  with an  existing mitigating                                                               
factor, what expert testimony would  be required and by whom such                                                               
testimony shall be  presented would be decided by the  court on a                                                               
case-by-case  basis and  would depend  on the  specific facts  of                                                               
each case;  and surmised that there  could be cases in  which the                                                               
question of whether the defendant  really does suffer from a FASD                                                               
must be litigated.                                                                                                              
                                                                                                                                
MR.  STEINER concurred,  but  ventured that  in  the majority  of                                                               
cases,  the  presence   of  the  FASD  will   have  already  been                                                               
established.                                                                                                                    
                                                                                                                                
REPRESENTATIVE   KELLER  asked   how  often   the  proposed   new                                                               
mitigating factor would be sought.                                                                                              
                                                                                                                                
MR.  SVOBODNY  relayed  that  the  DOL was  unable  to  obtain  a                                                               
consistent  estimate  and  therefore submitted  an  indeterminate                                                               
fiscal note.                                                                                                                    
                                                                                                                                
REPRESENTATIVE  KELLER surmised  that  SB 151  would provide  the                                                               
court with options when addressing defendants with an FASD.                                                                     
                                                                                                                                
MS. CASTO,  in response to  other questions, said  that according                                                               
to statistics,  each year in  Alaska approximately 15  babies are                                                               
born with  fetal alcohol syndrome  (FAS), and an  additional 155-                                                               
160  babies  are  born  with  some level  of  disability  due  to                                                               
prenatal exposure to  alcohol, and therefore the  total number of                                                               
people with a FASD is  increasing every year regardless that it's                                                               
completely preventable.                                                                                                         
                                                                                                                                
VICE CHAIR THOMPSON, after ascertaining that no one else wished                                                                 
to testify, closed public testimony on SB 151.                                                                                  
                                                                                                                                
2:15:55 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  KELLER  moved  to  report CSSB  151(JUD)  out  of                                                               
committee  with individual  recommendations and  the accompanying                                                               
fiscal  notes.   There  being  no  objection, CSSB  151(JUD)  was                                                               
reported from the House Judiciary Standing Committee.