Legislature(2013 - 2014)CAPITOL 120

03/20/2014 01:00 PM House MILITARY & VETERANS' AFFAIRS


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01:05:35 PM Start
01:06:03 PM HB313
02:01:47 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= HB 313 MITIGATING FACTOR: COMBAT-RELATED PTSD TELECONFERENCED
Moved Out of Committee
         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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