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.