HB1343: making it a crime to cause the death of a fetus as a result of committing a violent act against a pregnant woman.

HB 1343-FN - AS INTRODUCED

2003 SESSION

03-2192

04/01

HOUSE BILL 1343-FN

AN ACT making it a crime to cause the death of a fetus as a result of committing a violent act against a pregnant woman.

SPONSORS: Rep. Ahern, Belk 29; Rep. Woods, Straf 69

COMMITTEE: Criminal Justice and Public Safety

ANALYSIS

This bill makes causing the death of a fetus as a result of committing a violent act against a pregnant woman a homicide.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

03-2192

04/01

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Three

AN ACT making it a crime to cause the death of a fetus as a result of committing a violent act against a pregnant woman.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Section; Death of a Fetus. Amend RSA 630 by inserting after section 1-b the following new section:

630:1-c Death of a Fetus.

I. Any person who, by means of an act prohibited under title LXII or RSA 173-B that is committed against a pregnant woman, causes the termination of such woman's pregnancy shall be guilty of homicide, the degree of which shall be determined by the circumstances as they relate to the offenses set forth in this title or in RSA 173-B.

II. This section shall not apply to:

(a) Any person for conduct relating to an abortion for which the consent of the pregnant woman, or a person authorized by law to act on her behalf, has been obtained or for which such consent is implied by law.

(b) Any person who, with due care, provides medical treatment to the pregnant woman or her fetus.

III. In this section:

(a) "Fetus" means an embryo in utero at any stage during its gestation.

(b) "Unlawful termination" means causing the death of a fetus in utero as a result of injuries inflicted during the period of gestation.

2 Effective Date. This act shall take effect January 1, 2005.

LBAO

03-2192

7/25/03

HB 1343-FN - FISCAL NOTE

AN ACT making it a crime to cause the death of a fetus as a result of committing a violent act against a pregnant woman.

FISCAL IMPACT:

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

METHODOLOGY:

The Judicial Branch states this bill adds RSA 630:1-c to the homicide statute to make the death of a fetus criminal, if the act committed against the pregnant woman which causes the death of the fetus violates the Criminal Code or the chapter on domestic violence. If enacted, this bill may result in an additional count in cases that would have occurred without this statutory addition in situations where both the pregnant woman and the fetus 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 fetus. 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 fetus and to consider any appeals resulting from that count. In addition, because of the presence of a homicide charge relating to a fetus, 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 almost always result in jury trials. The cost of a full day's trial in the superior court, without even considering the cost of the jury, is $950.48 as follows, based on a seven and one-half hour day:

Judge $481.95

Court Monitor 151.05

Deputy Clerk 247.50

Bailiff 69.98

$950.48

LBAO

03-2192

7/25/03

Page 2

Adding the cost of preliminary hearings, a jury, time to write a charge to the jury, and time 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 a fetus pursuant to this bill, if enacted. In addition, the cost will vary depending on the severity of the charge. The homicide offenses subject to this bill range from an unspecified misdemeanor all the way to a capital offense. The judicial branch has no way to estimate what level of charges may be brought pursuant to this bill. Any fiscal impact to the judicial branch will result in increased delays in the processing of other cases.

The Judicial Council states this bill makes it a crime to cause the death of a fetus as a result of committing a violent act against a pregnant woman. The proposed crime is a homicide.

This bill provides that any person, who by means of an act prohibited by Title 62 (Criminal Code) or by RSA 173-B Domestic Violence) that is committed against a pregnant woman, causes the termination of such woman's pregnancy shall be guilty of homicide, the degree of which shall be determined by the circumstances as they relate to the offenses set forth in this title (RSA 830) or in RSA 173-B. This bill would enable a prosecutor to charge a murder (a level to be determined) if the prohibited act causes the termination of the pregnancy. Unlawful termination is defined as causing the death of a fetus in utero as a result of injuries inflicted during the period of gestation. This legislation has the potential of expanding the number of homicide cases which ultimately may be brought involving the death of a fetus. Any expansion of the murder statute, for any reason, has the potential to add to the costs associated with indigent defense representation. These cases always have the potential to be very costly to the system. 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 do 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 inclusion of termination of pregnancy resulting in the death of the fetus would exclude that component of the delivery

LBAO

03-2192

7/25/03

Page 3

system from handling such cases. Therefore, if the public defender has a conflict of interest, the representation will fall to assigned counsel that is the most costly means of delivering these services. It is important to note that these types of cases are potentially costly for all components of the criminal justice system. They are costly for prosecutors, the criminal defense attorneys, for the delivery of expert witnesses and forensic and laboratory analysis. They can also be intensely time consuming in terms of preparation for trial, and for the trial itself, unless a plea bargain can be struck, making these cases also time consuming and costly for the court system as well. If the final disposition involves extensive jail terms, the cost for such a case continues to the Corrections Department. Most convictions such as these also result in appeals to the Supreme Court which also adds costs to the case. 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 option where private attorneys bill at $60 per hour, with a fee cap of $15,000, which is most often exceeded and waived upon motion approved in advance by the court. The capital murder statute calls for co-counsel and it has been the routine practice of the superior court system to appoint co-counsel in first and second-degree murder cases as well. This follows the prosecution lead where the attorney general usually has co-counsel for such cases. As a general rule in such cases the presiding judge, from the point of initial appointment of counsel, will oversee the provision of defense requests for "services other than counsel" and will evaluate each request as to its merits and as to its anticipated cost. 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 led to an ineffective assistance of counsel claim, and the resulting need for a new trial. The range of costs associated with this legislation could run from the most costly, a minimum of at least $15,000 for an assigned counsel attorney to $100,000 or more, if the case is complex and the fee cap is waived. It would be far less costly for the system if the public defender can handle the case, as they are not paid by the hour. Even if the public defender is appointed to the case, the benchmark standard for repayment is $15,000 which is certainly reflective of a baseline cost. If there are "services other than counsel" required and approved by the judge, they would also be payable from indigent defense funds. Otherwise, the usual assumptions will apply to the analysis of the cost impacts of this legislation. It is assumed that the individual so charged has been found to be eligible for representation as an indigent defendant. For the purposes of this fiscal note, the Council assumes the individual so charged is an adult, although a juvenile may also be charged with this new offense, but different rates of

LBAO

03-2192

7/25/03

Page 4

compensation and total costs to the system will differ if the case is processed through juvenile court. The Council does not eliminate the possibility that such a crime could be committed by a minor. 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 cost of litigation, exclusive of manhours, 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 they 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 be incarcerated as a result of this bill. For FY 2002, the average cost of incarceration at the state prison was $24,866 per inmate per year.