03/12/2012 12:30 PM Senate JUDICIARY

        SB 151-FETAL ALCOHOL SPEC. DISORDER AS MITIGATOR                                                                    
                                                                                                                                
12:32:39 PM                                                                                                                   
CHAIR  FRENCH announced  the  consideration of  SB  151, "An  Act                                                               
relating to  mitigation at  sentencing in a  criminal case  for a                                                               
defendant found  by the court  to have  been affected by  a fetal                                                               
alcohol spectrum  disorder." He asked  for a motion to  adopt the                                                               
proposed committee substitute (CS).                                                                                             
                                                                                                                                
SENATOR WIELECHOWSKI moved  to adopt the proposed CS  for SB 151,                                                               
labeled 27-LS1132\O, as the working document.                                                                                   
                                                                                                                                
CHAIR  FRENCH announced  that without  objection,  version O  was                                                               
before the committee.                                                                                                           
                                                                                                                                
SENATOR COGHILL joined the committee.                                                                                           
                                                                                                                                
12:32:59 PM                                                                                                                   
SENATOR KEVIN MEYER,  sponsor of SB 151, explained  that the bill                                                               
would  specifically  include  Fetal  Alcohol  Spectrum  Disorders                                                               
(FASD) in the  state's existing definition of  "mental disease or                                                               
defect" and  as a mitigating  factor in sentencing.  He cautioned                                                               
that the  intent was not  to appear soft  on crime, but  to allow                                                               
for more appropriate  sentencing for people who  suffer from this                                                               
disability. This dovetails with  Chief Justice Carpeneti's recent                                                               
speech  to   the  Legislature  that  emphasized   flexibility  in                                                               
sentencing.                                                                                                                     
                                                                                                                                
SENATOR MEYER  said flexibility is particularly  important when a                                                               
judge  considers   sentencing  for  a  person   with  a  spectrum                                                               
disorder. Alaska has the highest rate  of FASD in the nation, and                                                               
according to the  experts at the Alaska  FASD Partnership, people                                                               
with FASD are disproportionately  represented within the criminal                                                               
justice system. He spoke of his  motivation to do more to prevent                                                               
this very preventable disability.                                                                                               
                                                                                                                                
12:36:43 PM                                                                                                                   
CHAIR FRENCH  asked if the  mitigater in paragraph (18),  page 3,                                                               
lines 12-16, had been used in FASD  cases, and if it was used why                                                               
wasn't it working.                                                                                                              
                                                                                                                                
SENATOR  MEYER said  part of  the  reason for  bringing the  bill                                                               
forward  was  that  paragraph   (18)  has  produced  inconsistent                                                               
results from judges.  Some say FASD is included  while others say                                                               
it is not implicitly defined.                                                                                                   
                                                                                                                                
12:37:41 PM                                                                                                                   
CHRISTINE  MARASIGAN, staff  to  Senator  Kevin Meyer,  confirmed                                                               
that  interpretation  of  that   section  was  inconsistent,  and                                                               
suggested  that  Judge Jeffry  could  address  the question  more                                                               
thoroughly. She  also pointed  out that  the sponsor  deferred to                                                               
the Department of Law (DOL)  and other FASD advocates and removed                                                               
from  version  O  the  section   that  included  "impaired  brain                                                               
function" in the  definition of "mental disease  or defect." That                                                               
also  accounts for  the expanded  definition  at the  end of  the                                                               
bill.                                                                                                                           
                                                                                                                                
CHAIR FRENCH asked who would  make the diagnosis that a defendant                                                               
is affected by FASD.                                                                                                            
                                                                                                                                
SENATOR MEYER  directed attention to page  3, line 30. It  says a                                                               
determination is made by a neuropsychological examination.                                                                      
                                                                                                                                
CHAIR FRENCH asked if a medical doctor would make the diagnosis.                                                                
                                                                                                                                
SENATOR MEYER said yes.                                                                                                         
                                                                                                                                
CHAIR FRENCH opened public testimony.                                                                                           
                                                                                                                                
12:40:41 PM                                                                                                                   
JUDGE MICHAEL JEFFERY, representing  himself, Barrow, AK, relayed                                                               
his  personal  experience to  illustrate  that  the mitigater  in                                                               
existing law was not adequate for  use in FASD cases. In 1990, he                                                               
accepted a non-statutory mitigating  factor for a FASD condition,                                                               
and a three-judge  panel sent it back saying he  could not use it                                                               
because the  Legislature spoke and  the mental disease  or defect                                                               
did not fit  that condition. He was therefore  required to impose                                                               
the  presumptive  term.  He emphasized  the  importance  of  this                                                               
legislation.                                                                                                                    
                                                                                                                                
Addressing the question of who does  the diagnosis, he said it is                                                               
appropriate  that  a  medical doctor  makes  the  diagnosis,  but                                                               
requiring that  specialty designation would be  a big limitation.                                                               
Many people who have a  professional FASD diagnosis would not fit                                                               
within that  definition. He  continued to say  that this  was all                                                               
about smart justice.  If it can be shown by  clear and convincing                                                               
evidence   that  the   defendant   has  the   condition  and   it                                                               
significantly  affected his  or her  conduct, a  judge could  use                                                               
discretion and potentially adjust the presumptive term downward.                                                                
                                                                                                                                
JUDGE JEFFERY  said he was  pleased that version O  provides more                                                               
flexibility  by  eliminating  the prohibition  on  the  mitigater                                                               
being applicable to anyone with an assaultive offense.                                                                          
                                                                                                                                
12:45:02 PM                                                                                                                   
CHAIR FRENCH  asked how prevalent  FASD was among  defendants who                                                               
appear in his court.                                                                                                            
                                                                                                                                
JUDGE  JEFFERY said  it was  unusual for  a defendant  to have  a                                                               
medical diagnosis,  and it  was very  difficult to  identify FASD                                                               
without one. A  defendant who has a FASD  diagnosis most probably                                                               
received  it earlier  when he  or she  was in  the child  welfare                                                               
system  or the  juvenile justice  system. He  relayed his  belief                                                               
that a  significant percentage of  the people that  appear before                                                               
him  are affected  to some  degree  and he  accommodates that  by                                                               
slowing things down and asking more questions.                                                                                  
                                                                                                                                
12:48:16 PM                                                                                                                   
SENATOR COGHILL  asked about the balance  between this mitigater,                                                               
public safety, and responsibility for one's actions.                                                                            
                                                                                                                                
JUDGE JEFFERY explained that there  is not an automatic reduction                                                               
of  sentence and  the criminal  justice system  will continue  to                                                               
hold people responsible for their  actions. A person who presents                                                               
a danger to  the public won't be rehabilitated  in the community,                                                               
and a person who is  released under treatment and commits another                                                               
offense will be returned to jail.                                                                                               
                                                                                                                                
12:50:58 PM                                                                                                                   
VICKY TINKER,  Team Coordinator, Kenai Peninsula  FASD Diagnostic                                                               
Program, Kenai, AK, introduced herself.                                                                                         
                                                                                                                                
CHAIR FRENCH  asked Ms. Tinker  her perspective of what  it would                                                               
take to put FASD evidence in front of a court.                                                                                  
                                                                                                                                
MS. TINKER explained  that in Alaska a physician  makes the final                                                               
diagnosis  after  getting input  from  a  psychologist, a  speech                                                               
therapist, and sometimes an occupational  therapist, all of which                                                               
are  part of  a  diagnostic  team. She  agreed  that the  current                                                               
language  "as  determined  by a  neuropsychological  examination"                                                               
could be problematic. Not all  the teams have a psychologist with                                                               
that particular  specialty and a neuropsychologist  does not make                                                               
the final diagnosis.                                                                                                            
                                                                                                                                
CHAIR FRENCH summarized her points.                                                                                             
                                                                                                                                
MS. TINKER added  that the medical provider on the  team can be a                                                               
mid-level practitioner such as a  nurse practitioner or physician                                                               
assistant,  but  it would  be  unusual  for  either to  make  the                                                               
official diagnosis alone.                                                                                                       
                                                                                                                                
12:53:20 PM                                                                                                                   
CHAIR FRENCH  said he  would not  feel comfortable  having anyone                                                               
but a medical doctor make the final diagnosis.                                                                                  
                                                                                                                                
MS. TINKER  said in cases  when a physician [assistant]  or nurse                                                               
practitioner  makes the  final medical  diagnosis, they  are also                                                               
using information  from the  other providers on  the team.  It is                                                               
not an independent diagnosis.                                                                                                   
                                                                                                                                
CHAIR FRENCH  said the committee  would work with the  sponsor on                                                               
that language.                                                                                                                  
                                                                                                                                
12:54:14 PM                                                                                                                   
SENATOR COGHILL asked the number of diagnostic teams statewide.                                                                 
                                                                                                                                
MS. TINKER estimated there were eight or nine.                                                                                  
                                                                                                                                
SENATOR  COGHILL asked  if  the court  could  access these  teams                                                               
easily or if they were ad hoc.                                                                                                  
                                                                                                                                
MS. TINKER  replied the court  can easily  draw upon them,  and a                                                               
team in  one area can  fill needs in  another area that  does not                                                               
have one.                                                                                                                       
                                                                                                                                
12:55:04 PM                                                                                                                   
SENATOR  PASKVAN  asked  what  type   of  examination  she  would                                                               
recommend   if   it   would   be  too   narrow   to   require   a                                                               
neuropsychological examination.                                                                                                 
                                                                                                                                
MS. TINKER suggested  it would be safe to say,  "as determined by                                                               
a physician or a diagnostic team."                                                                                              
                                                                                                                                
CHAIR  FRENCH  asked if  it  would  be  too  narrow to  say,  "as                                                               
determined by a physician."                                                                                                     
                                                                                                                                
MS.  TINKER  said  yes,  and provided  an  example.  The  medical                                                               
provider on the  diagnostic team associated with  Assets, Inc. in                                                               
Anchorage  is probably  more knowledgeable  about FASD  than most                                                               
physicians, and that person is an advanced nurse practitioner.                                                                  
                                                                                                                                
CHAIR  FRENCH  asked  if  there  was  a  definition  in  law  for                                                               
"diagnostic team."                                                                                                              
                                                                                                                                
MS. TINKER said no. She said  she believes that by law, a medical                                                               
provider  makes   the  diagnosis,  but  the   gold  standard  for                                                               
diagnosis is  the University  of Washington  model. That  is what                                                               
Alaska uses.                                                                                                                    
                                                                                                                                
SENATOR  PASKVAN asked  if there  was information  in the  packet                                                               
about  the University  of Washington  model, because  it probably                                                               
addresses the physician's participation in the team process.                                                                    
                                                                                                                                
CHAIR FRENCH  noted that someone  in the audience  indicated they                                                               
could talk about that.                                                                                                          
                                                                                                                                
SENATOR COGHILL said he would  like more information on the range                                                               
of  the  disorder because  he  suspects  the ability  to  respond                                                               
accountably will be a factor for the court to consider.                                                                         
                                                                                                                                
MS. TINKER said on  one end of the spectrum a  person may be able                                                               
to function  in society and  not break rules, whereas  someone on                                                               
the other end may have so  little control over their behavior and                                                               
decision-making that they need  to be institutionalized. However,                                                               
even  someone  who  is  lightly   impaired  may  have  difficulty                                                               
controlling their  impulses and connecting consequences  to their                                                               
actions.                                                                                                                        
                                                                                                                                
SENATOR COGHILL said  he was looking at ways for  the judge to be                                                               
as informed as possible.                                                                                                        
                                                                                                                                
1:00:50 PM                                                                                                                    
KATE  BURKHART, Executive  Director, Alaska  Mental Health  Board                                                               
and Advisory  Board on  Alcoholism and  Drug Abuse,  testified in                                                               
support of SB 151. She stated  that the FASD population in Alaska                                                               
is   disproportionately  represented   in  the   corrections  and                                                               
criminal justice systems,  and SB 151 provides  an opportunity to                                                               
embrace  Chief Justice  Carpeneti's  call for  smart justice.  It                                                               
looks first  to alternative sentences  and punishments  that both                                                               
protect  the   public  and  rehabilitate  the   perpetrator.  She                                                               
reiterated Judge  Jeffery's comments that dangerous  persons will                                                               
not be  rehabilitated in  the community.  Rather, SB  151 affords                                                               
judges  the discretion  to balance  public  safety and  community                                                               
rehabilitation.                                                                                                                 
                                                                                                                                
MS.  BURKHART echoed  the concerns  about the  neuropsychological                                                               
examination  limitation and  suggested  saying,  "a physician  or                                                               
University  of  Washington  credentialed FASD  diagnostic  team."                                                               
That  would probably  address  the concerns  about  the level  of                                                               
experience and expertise  of the person making  the diagnosis and                                                               
would reflect  the actualities of what  Alaska's diagnostic teams                                                               
do.  She directed  attention  to  paragraph (18)  on  page 3  and                                                               
suggested revising the  language to say that  the mitigater could                                                               
be  applied  in  crimes  against   a  person  except  for  repeat                                                               
felonies. That balances the opportunity  to be smart and flexible                                                               
to  potentially  break  the  cycle   of  recidivism  for  someone                                                               
diagnosed with FASD.                                                                                                            
                                                                                                                                
1:06:33 PM                                                                                                                    
RICK   IANNOLINO,  representing   himself,   said   he  was   the                                                               
coordinator of  the Juneau FASD  Diagnostic Clinic.  He described                                                               
the physical aspects  that are considered in  diagnosing FASD and                                                               
said  it should  not be  a problem  that a  non-physician medical                                                               
person does  these exams because  that has been the  practice for                                                               
many years.  Addressing the concern about  the neuropsychological                                                               
examination,  he  said  a neuropsychologist  is  not  a  required                                                               
member of the team under  the University of Washington diagnostic                                                               
team  certification.  He  discussed   the  wide  range  of  tests                                                               
performed by each of the  team members. The psychologist looks at                                                               
the brain  functions, the speech  and language  pathologist looks                                                               
at receptive  communication, the occupational therapist  looks at                                                               
everyday  activities  and the  physical  therapist  looks at  the                                                               
large muscle functions.                                                                                                         
                                                                                                                                
Responding to a series of  questions from the Chair, he explained                                                               
that the  FASD provider  agreement requires each  team to  have a                                                               
physician,  a  psychologist,  an   occupational  therapist  or  a                                                               
physical therapist  or a speech  and language pathologist,  and a                                                               
parent  navigator.   As  coordinator,  he  does   not  assist  in                                                               
rendering  the diagnosis,  but he  ensures the  professionals are                                                               
appropriate  for  the  client.  The Juneau  team  sees  about  24                                                               
clients in a year.                                                                                                              
                                                                                                                                
1:13:07 PM                                                                                                                    
SENATOR  COGHILL asked  if a  person with  FASD could  experience                                                               
cognitive growth.                                                                                                               
                                                                                                                                
MR.  IANNOLINO  replied   someone  with  FASD  may   be  able  to                                                               
accommodate  other ways  of  learning, but  the  brain damage  is                                                               
permanent.                                                                                                                      
                                                                                                                                
SENATOR PASKVAN asked if the  credentialing is affected if one of                                                               
the volunteer members withdraws.                                                                                                
                                                                                                                                
MR. IANNOLINO  responded that the  Juneau team is  the exception;                                                               
most teams do not rely on volunteers.                                                                                           
                                                                                                                                
SENATOR PASKVAN  asked how many  credentialed team  members would                                                               
be  qualified  to present  this  as  a  mitigater at  a  criminal                                                               
proceeding.                                                                                                                     
                                                                                                                                
MR. IANNOLINO  said most people  come to the clinic  because they                                                               
are having  severe problems  at school,  with their  families, or                                                               
with the law.                                                                                                                   
                                                                                                                                
1:16:52 PM                                                                                                                    
CHAIR  FRENCH asked  if  many of  the people  who  arrive at  the                                                               
clinic have pending criminal cases.                                                                                             
                                                                                                                                
MR. IANNOLINO said yes.                                                                                                         
                                                                                                                                
CHAIR  FRENCH asked  if they  are seeking  a diagnosis  for court                                                               
purposes  or if  a  variety  of issues  has  driven  them to  the                                                               
clinic.                                                                                                                         
                                                                                                                                
MR.  IANNOLINO said  they are  trying to  live and  inadvertently                                                               
make poor decisions.                                                                                                            
                                                                                                                                
1:18:11 PM                                                                                                                    
MARGARET  VROLYK,   Parent  Navigator,  Juneau   FASD  Diagnostic                                                               
Clinic,  testified  in  support  of  SB 151.  She  spoke  of  her                                                               
experience as  a parent  of a  son with  FASD and  voiced concern                                                               
with the exception  in paragraph (18) on page 3.  It is very easy                                                               
for  someone with  FASD to  become  a felon  by association,  she                                                               
said.                                                                                                                           
                                                                                                                                
1:20:53 PM                                                                                                                    
CHAIR FRENCH held SB 151 in committee.