Legislature(2013 - 2014)CAPITOL 120
03/11/2014 01:00 PM House MILITARY & VETERANS' AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB313 | |
| HB318 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 318 | TELECONFERENCED | |
| *+ | HB 313 | TELECONFERENCED | |
HB 313-MITIGATING FACTOR: COMBAT-RELATED PTSD
1:06:11 PM
CO-CHAIR LEDOUX announced that the first 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."
1:06:26 PM
REPRESENTATIVE LES GARA, Alaska State Legislature, prime sponsor
of HB 313, informed the committee the bill creates a mitigating
factor in law. When a judge is considering the sentence to be
imposed on a felon, the judge can increase the sentence if the
felon has done something especially bad, and can reduce the
sentence if there is a sympathetic factor, called a mitigator.
In law there are about 35 aggravators that can increase a
sentence, and about 20 mitigators that can decrease a sentence.
The bill creates a mitigator related to military veterans that
if a military veteran can prove that his or her crime is related
to, and in part caused by, combat-related post-traumatic stress
disorder (PTSD) or combat-related traumatic brain injury (TBI),
the judge can take that into consideration and decide either not
to reduce the sentence, or to reduce the sentence.
Representative Gara pointed out that roughly 60-80 percent of
Vietnam veterans who returned home with PTSD have some level of
substance abuse problems; in fact, in some, PTSD creates long-
term anxiety, fear, aggravation, or depression, and can
contribute to suicide. He advised that some veterans come home
changed, and that is a relevant mitigating circumstance if
caused by one's military service. Although the bill does not
absolve one of responsibility for the crime, the judge should be
able to consider mitigating factors. The bill is modeled after
the mitigating circumstances for felons who suffer from fetal
alcohol syndrome (FAS), and which exclude the crimes that cause
someone serious injury or are sex crimes. The mitigator would
apply to crimes of burglary, theft, and felony driving while
intoxicated (DWI).
CO-CHAIR LEDOUX surmised that someone with PTSD caused by combat
would most likely be engaged in violent crime.
1:10:59 PM
REPRESENTATIVE GARA responded that he had no statistics on that
and acknowledged that some crimes will be violent crimes.
Violent crimes were not included in the FAS legislation because
the legislature decided that for a certain level of crime, there
could be no mitigator; however, the committee can choose whether
to agree. He added that with the increased firepower at use in
military conflicts today, military blasts cause about twice the
number of brain injuries than during the time of the Vietnam
conflict; veterans returning from Afghanistan and Iraq have
higher levels of brain injury, and these injuries happened
during their service to the U.S., which justifies a reduced
sentence if proven to be a factor in criminal behavior.
REPRESENTATIVE REINBOLD agreed that the intent of the bill is
good, however, many crimes involve drugs and alcohol and the
perpetrators may be self-medicating or hiding their symptoms.
She asked how much risk there is to the public when shorter
sentences are imposed.
1:14:42 PM
REPRESENTATIVE GARA reminded the committee that the bill only
applies in felonies, and those with reduced sentences will still
serve jail time and will receive treatment while in jail. Many
of these offenses carry presumptive five- to eight-year jail
sentences, so reducing the amount of jail time by 20 percent
will not have an effect on the public, he opined, but is
recognition of their condition. If the bill extended to rape or
murder and to violent criminals, there may be an argument that
there is a danger to society; on the other hand, confinement,
jail, and solitary living in a cell can exacerbate the symptoms
of PTSD.
REPRESENTATIVE REINBOLD inquired as to whether felons receive
treatment through veterans' benefits at an equal level if not in
jail.
REPRESENTATIVE GARA was unsure if veterans' benefits apply while
in jail, but expressed his hope that veterans' benefits and
substance abuse treatment would be offered in jail and
afterward. In further response to Representative Reinbold, he
said he would get a definitive answer.
REPRESENTATIVE HUGHES noted a benefit of the bill is that more
veterans may be properly diagnosed with PTSD and receive
treatment. She asked for information on the treatment available
to veterans while incarcerated, and whether other states have
similar legislation.
1:19:28 PM
REPRESENTATIVE GARA was unsure whether mitigators in other
states address combat-related PTSD or TBI injuries. The bill
was written in response to reports from practitioners on the
increased rate of clients with PTSD.
REPRESENTATIVE HUGHES questioned if mitigators may impact
whether treatment during or following incarceration is [mandated
as] part of the sentence.
REPRESENTATIVE GARA advised that after leaving jail, one is
still under the jurisdiction of the state because there are
periods of probation or parole. It is very common to have a
treatment requirement of release and it must be proven to a
probation or parole officer that substance abuse or counseling
programs are completed; refusal will lead to re-arrest on a
probation or parole violation.
REPRESENTATIVE GRUENBERG opined PTSD is an important issue from
other points of view such as health. The state has a high
percentage of veterans and PTSD affects others as well.
REPRESENTATIVE REINBOLD supported the use of the word "may"
instead of "shall" on the first page of the bill.
REPRESENTATIVE GARA affirmed that mitigators are not automatic
but are "based on the facts."
1:23:42 PM
REPRESENTATIVE GRUENBERG called attention to page 1, line 6 of
the bill which read:
(d) The following factors shall be considered by the
sentencing court if proven
REPRESENTATIVE GRUENBERG clarified that mitigators are required
to be considered, but are not required to be applied.
REPRESENTATIVE REINBOLD said correct.
CO-CHAIR LEDOUX opened public testimony on HB 313.
1:24:25 PM
RIC DAVIDGE, State Director, Government Affairs, Vietnam
Veterans of America, Alaska, informed the committee he is a
combat veteran and has held other positions with various
organizations representing Vietnam veterans. He suggested that
had this legislation been law after the Vietnam conflict, many
Vietnam veterans incarcerated today might not still be
incarcerated. Mr. Davidge said he has been diagnosed with 75
percent PTSD after his service as a combat medic in Vietnam, but
with personal effort he is able to manage the syndrome. He
described the actions of those with PTSD as "appropriate
behavior which has been trained or learned as a result of
combat, but is now not appropriate in civil society." Symptoms
are detected and managed only with great effort and a lot of
support from fellow veterans. In response to an earlier
question, he said there are incarcerated chapters of Vietnam
Veterans of America and their members qualify and receive
Veterans Health Administration benefits for the treatment of
PTSD. He described how a sufferer suddenly experiences a
trigger, which could be stress, a sound, or a smell.
Unfortunately many who suffer are not diagnosed or willing to
admit that they need help, even though now veterans are
encouraged to do so. The opportunity for a judge to consider a
mitigator to a crime when it is clear that someone suffers from
PTSD or TBI would be a great help in veteran courts. Mr.
Davidge pointed out veterans today have often served in combat
for four or six years after multiple deployments and this is a
reason for the high divorce and suicide rates among new
veterans. He expressed his organization's full support for HB
313, and said forty-nine other states are considering similar
legislation.
1:30:09 PM
REPRESENTATIVE HUGHES asked whether this is a recent effort.
MR. DAVIDGE responded that PTSD and "minor" TBI as mitigators
for criminal sentencing have been discussed nationwide for three
to five years; however, this is the first bill to his knowledge.
REPRESENTATIVE GRUENBERG assumed that a service member could
acquire PTSD during military service even if it were not
"combat-related."
MR. DAVIDGE said yes, PTSD could be acquired through a training
incident, but it is not classified combat-related unless the
nature of the incidences that cause triggers is repetitive.
Combat-related PTSD has done more damage to the brain.
1:33:09 PM
REPRESENTATIVE GRUENBERG related his personal experience on an
aircraft carrier. He asked whether the term "combat-related" is
limited to those under enemy fire, since others can acquire PTSD
from stressful and dangerous assignments.
MR. DAVIDGE advised that service members who are in a combat
theatre are eligible for consideration for combat-related PTSD,
because anyone in a combat situation deals with an enormous
amount of stress. In further response to Representative
Gruenberg, he said the term is defined with the PTSD diagnosis;
however, if one is in a combat zone or a theatre of combat,
one's experience is relative to one's military occupation. The
definition has been expanded some since the Vietnam conflict,
and the diagnoses for PTSD and combat-related PTSD are extremely
precise and accurate.
1:36:49 PM
BRANT MCGEE, speaking for himself, informed the committee he is
a lifelong Alaskan who served as a combat medic in the Central
Highlands of Vietnam in 1969, and is an attorney. He encouraged
the committee to review literature on PTSD and TBI. Mr. McGee
described in detail the experience of a combat veteran returning
home: during the tour of duty the veteran dreams of an idyllic
life at home; after coming home everyday life is strange and
different; family and friends have changed; the tour is a hole
in the veteran's life; family and friends do not understand
combat experiences; the veteran survives with fear and paranoia,
remembering horrible sights that prevent sleep; there is
exhaustion; there are lapses in memory; there is a different
fear than in combat, in that the veteran cannot act as in
combat, and actions are unacceptable; the veteran is alone,
cannot hold a job, cannot control her or her emotions, and the
only relief is from drugs and alcohol which leads to illegal
activities; the best case is that this lasts only a few years.
REPRESENTATIVE GRUENBERG assumed Mr. McGee represented clients
who suffer from PTSD in his criminal defense law practice, and
asked whether there is a definition for PTSD in the Diagnostic
and Statistical Manual of Mental Disorders (DSM), third or
fourth edition.
1:42:12 PM
MR. MCGEE said yes, it is well-defined in the DSM, fifth edition
(DSM-5).
REPRESENTATIVE GRUENBERG urged for the definition to be entered
into the record.
MR. MCGEE said there is a source for the definition regarding
PTSD on the Department of Veterans Affairs (VA) web site:
www.PTSD.VA.GOV.
REPRESENTATIVE REINBOLD restated her belief that the intent of
the bill is good; however, her question was whether [substance
abuse] treatment for veterans is better delivered inside or
outside of jail. She again questioned the amount of risk to
family members and the public "if for some reason they get out
early without treatment ...."
1:44:47 PM
MR. MCGEE answered that time in jail has been found to aggravate
combat-related PTSD in veterans, and jail is not an appropriate
place for treatment. There are programs through VA and other
sources that are effective; in fact, VA Health Administration is
much better prepared now than during the Vietnam era, and
today's veterans are more willing to acknowledge the problem and
get treatment. He opined a sentencing judge may shorten the
jail term, but also mandate treatment because there are risks to
family and community from those with PTSD symptoms. He affirmed
that many who are affected turn to alcohol and drugs, and for
those who end up in the criminal justice system it is important
to recognize their service so that judges may consider the
mitigator. Mr. McGee reminded the committee that in Alaska
judges cannot determine treatment after one is committed to the
Department of Corrections (DOC).
1:47:45 PM
CINDY STROUT, speaking for herself, informed the committee
working as a criminal defense attorney she has had contact with
many young men who are in the criminal justice system for
offenses involving controlled substances. Many of these clients
suffer from PTSD; and her experience, experts, and studies have
shown that combat-related PTSD and substance abuse generally go
hand-in-hand. In order to return a soldier to mental health,
both conditions require treatment. The treatment for combat-
related PTSD is specific and needs to take place in a setting
with other combat veterans at VA, and is beyond the programs
available at DOC. Ms. Strout opined the intent of the bill is
to give a judge the flexibility to reduce a jail sentence and
require treatment in an appropriate setting. In response to an
earlier question, she said her experience with clients is that
VA psychologists in this field have developed a specific tool to
make a diagnosis of combat-related PTSD. She agreed with the
previous speaker that PTSD is a pervasive mental illness that
affects the soldier's life and must be treated. Ms. Strout was
encouraged by promising new treatments for PTSD; however, the
mitigator provided by HB 313 would allow the sentencing judge to
recognize the specialized treatment a soldier needs.
1:52:10 PM
REPRESENTATIVE GRUENBERG referred to a U.S. Supreme Court ruling
stating that "for aggravators" one has a federal constitutional
right to a jury trial if there are new facts. He asked whether
the mitigator proposed in HB 313 would entitle a defendant to a
jury trial.
MS. STROUT answered that the case is Blakely v. Washington 542
U.S. 296(2004). She opined that the defendant has to prove the
mitigator by clear and convincing evidence; in addition, the
Blakely analysis would not apply because the defendant is
seeking to decrease the sentence.
REPRESENTATIVE GRUENBERG then asked whether those who would be
affected by the bill have a constitutional right to treatment.
MS. STROUT advised that the Alaska State Constitution carries a
requirement of rehabilitation, and answered in the affirmative.
REPRESENTATIVE HIGGINS inquired as to whether there is
mitigation in existing law for those who have acquired PTSD
while working in other fields such as law enforcement officers,
firefighters, and first responders, because others may need this
help also.
MS. STROUT said no, and agreed that many others suffer from PTSD
including victims of sex abuse and rape. There are mitigating
factors for duress and coercion.
1:56:34 PM
MR. MCGEE acknowledged that many others are affected by PTSD due
to a variety of causes; however, it is appropriate to set
combat-related PTSD sufferers aside from others because they
suffer due to their service at the bidding of the nation, thus
the nation bears some responsibility for their care.
REPRESENTATIVE HUGHES added that the factors of the frequency
and duration of combat-related events are another reason. She
then asked Mr. Pierre how many Alaskan veterans are coming home
with PTSD and whether diagnoses are made previous to their
discharge, and if a veteran can request a diagnosis by medical
professionals other than VA personnel.
2:00:22 PM
MCHUGH PIERRE, Deputy Commissioner, Office of the
Commissioner/Adjutant General, Department of Military and
Veterans Affairs (DMVA), answered that a veteran must be
diagnosed by a VA doctor in order to determine the level of
disability for disability claims. He said he was unsure of how
many Alaskans are returning, but all service members are given
thorough treatment and examinations. Mr. Pierre stressed that
DMVA and the Alaska National Guard encourage returning veterans
to acknowledge their injuries and seek treatment. Along with
increased weapons technology, advances in medical care mean more
veterans survive combat, but return with complex and serious
injuries that must be addressed in every way possible.
2:02:22 PM
CO-CHAIR LEDOUX, after ascertaining no one else wished to
testify, closed public testimony on HB 313. She announced that
HB 313 was heard and held.