HB 1360-FN - AS INTRODUCED

AN ACT including "unborn child" in the definition of "another" for the purpose of capital murder, first and second degree murder, manslaughter, and negligent homicide.

SPONSORS: Rep. Souza, Hills 51; Rep. Hagan, Hills 50; Rep. Brady, Coos 2; Rep. Giuda, Graf 13; Rep. Flayhan, Rock 80; Sen. Roberge, Dist 9; Sen. Martel, Dist 18; Rep. Boyce, Dist 4

AN ACT including "unborn child" in the definition of "another" for the purpose of capital murder, first and second degree murder, manslaughter, and negligent homicide.

AN ACT including "unborn child" in the definition of "another" for the purpose of capital murder, first and second degree murder, manslaughter, and negligent homicide.

The Judicial Branch, Judicial Council, and Departments of Justice and Corrections have determined this bill will increase state expenditures by an indeterminable amount in FY 2005 and each year thereafter. There will be no fiscal impact on county and local expenditures or state, county and local revenue.

The Judicial Branch stated this bill amends the homicide statutes to include an unborn child in the definition of "another" for capital murder, first degree murder, second degree murder, manslaughter, negligent homicide, and causing or aiding suicide. If enacted, this bill may result in an additional count in cases that would have occurred without this amendment in situations where both an unborn child and someone else are victims of the crime, or in a criminal case that would not otherwise have been brought in situations where the only victim is the unborn child. In the former situation, the fiscal impact on the judicial branch will not be as great as in the latter situation, however, both situations will have a fiscal impact. The former situation of an additional count in a case that would have occurred anyway would add the time it would take to present the evidence related to the count involving the unborn child and to consider any appeals resulting from that count. In addition, because of the presence of a homicide charge relating to an unborn child, any such case is likely to generate great publicity adding to the potential cost. The latter situation of a criminal case that would not otherwise have been brought would have a much greater fiscal impact. The potential sentences for most of these offenses are great and usually result in jury trials. The cost of a full day's trial in the superior court, without considering the cost of the jury, is $950.48 as follows based on a seven and one-half (71/2) hour day:

Judge $481.95

Court Monitor 151.05

Deputy Clerk 247.50

Bailiff 69.98

$950.48

Adding the cost of preliminary hearings, a jury, time to write a charge to the jury and for clerical processing would make the cost of a jury trial well in excess of $1,000 per day. Given the subject matter of such a trial and the publicity that it would generate, the court involved would also have to consider the need for additional security at additional cost. Moreover, should a decision be appealed, which in such a case would be extremely likely, several thousand dollars of additional costs would be incurred in judge, law clerk, and staff time at the supreme court. Thus, even one case brought pursuant to this statute, if enacted, would result in a fiscal impact to the judicial branch in excess of $10,000. The judicial branch has no way to estimate how many, if any, prosecutions will be brought for the death of an unborn child pursuant to this bill, if enacted. In addition, the cost will vary depending on the severity of the charge. The offenses subject to this bill range from an unspecified misdemeanor all the way to a capital offense. Any fiscal impact to the judicial branch will result in increased delays in the processing of other cases.

The Judicial Council stated this bill includes "unborn child" in the definition of "another" for the purpose of capital murder, first and second degree murder, manslaughter, and negligent homicide, by removing the exclusion that "another shall not include a fetus". In its place the term "unborn child" is inserted and defined as a child in utero in any stage in its gestation."

It appears that an amendment such as this would enable a prosecutor to charge a double murder when the death of the mother also results in the death of an unborn child at any stage of its gestation. Additionally, it would also enable a prosecutor to charge a murder (at some level) when a blow to the pregnant mother results in the death of the unborn child (at any stage in its gestational development), not simply first degree assault when a miscarriage results.

This legislation has the potential of expanding the number of homicide cases which ultimately may be brought involving an unborn child and it is the Council's experience that any expansion in the potential number of such cases can be very costly. While the cost of such cases can be greatly minimized if the public defender is able to accept appointment, they are not always able

to due so when issues of conflict of interest arise based upon the Rules of Professional Responsibility. Contract attorneys cannot be assigned to those murder related cases when the victim is not alive. This reclassification of murder cases would preclude them from providing representation. Therefore, if the Public Defender Program has a conflict of interest, the representation will fall to assigned counsel, which is the most costly means of delivering these services. Because this bill combines five of the most serious criminal charges in the criminal code, the analysis provided for this fiscal note is extremely general in tone. These five offenses all fall within a category of the most serious in terms of costs for all components of the criminal justice system. They are costly for the prosecutors, the criminal defense attorneys, for the delivery of expert witness and laboratory analysis. They can be intensely time consuming in terms of preparation for trial, and the trial itself (unless a plea bargain is struck) can be extensive and costly for the court system. If the final disposition is a lengthy jail term as is likely, the cost for such cases continues. The range of costs from the defense side will vary from the more minimal costs associated with having the public defender handle the case, to the most costly where private attorneys bill at $60 per hour with a fee cap of $15,000 which is most often waived. In capital murder cases statute calls for co-counsel. Recent practice within the Superior Court has been to appoint co-counsel in first and second degree murder cases as well, for good cause shown. As a general rule in such cases, the presiding judge from the point of initial appointment of counsel on, will oversee the provision of defense requests for "services other than counsel" and will evaluate each request as to its merit and as to its anticipated costs. Due to the complexity of such cases, and the significant stakes involved for the defendant, most trial court judges will make certain that the "services" needed for an adequate defense are approved. To do otherwise would be to set forth a path that could lead to an ineffective assistance of counsel claim and the need to retry the case. The range of costs associated with this legislation could run from the most costly capital murder ($100,000 - several hundred thousand including the post trial sentencing stage and subsequent appeals) to the less costly manslaughter and negligent homicide which also can run in the range of $15,000-100,000 or more if the Public Defender Program is unable to accept the case. Additionally, all of these cases tend to include significant costs for "services other than counsel". Otherwise, the usual assumptions apply to the creation of this fiscal note. It is assumed that the individual so charged has been determined to be indigent, at which time the court will proceed to appoint an attorney to represent the defendant. If a Public Defender is appointed to the case, the fixed fee cap of $15,000 will be used as a basis for repayment to each case so charged. If an assigned

counsel attorney (the third tier in the scheme of statutory appointment of counsel) must be used due to either conflict of interest or for reasons of caseload limitations, the $60 per hour rate will apply to the case, with a fee cap of $15,000. This fee cap may be waived upon motion filed in advance with the court. Undoubtedly, in most of these potential cases, the fee cap would be waived. If any "services other than counsel" are filed as a necessary part of the defense of a case, they would also be payable from Indigent Defense Funds. These are among the most costly cases paid from this fund. The Council has stated it is not possible to accurately predict the number of cases that may result from the enactment of this bill, it is likewise not possible to place an exact dollar figure on the potential cost associated with this bill.

The Department of Justice stated the costs of litigation, exclusive of man-hours, involves the production of documents, research, travel, etc. In FY 2002, litigation costs averaged $2,388 for civil cases and $1,351 for criminal cases. The personnel costs of litigation can be measured in terms of overtime for the support of staff and additional caseloads for attorneys. In addition, any increase to the number of complaints to the agency will increase both the workload and the priority in which they are handled. The Department cannot, with any degree of certainty, project the number of instances in which the will become involved in this type of case. Because the Department cannot predict the number of cases, they cannot estimate a cost. However, if this bill becomes law, the Department will likely be involved in cases that could have significant litigation costs.

The Department of Corrections stated they are unable to estimate how many, if any, individuals would become incarcerated as a result of this bill. In FY 2002, the average cost of incarceration at the state prison was $24,866 per inmate per year.