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.