CSSB 53(JUD): "An Act relating to competency to stand trial; relating to involuntary civil commitments; and relating to victims' rights during certain civil commitment proceedings."
00 CS FOR SENATE BILL NO. 53(JUD) 01 "An Act relating to competency to stand trial; relating to involuntary civil 02 commitments; and relating to victims' rights during certain civil commitment 03 proceedings." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 12.47.070(a) is amended to read: 06 (a) If a defendant has filed a notice of intention to rely on the affirmative 07 defense of insanity under AS 12.47.010 or has filed notice under AS 12.47.020(a), or 08 there is reason to doubt the defendant's fitness to proceed, or there is reason to believe 09 that a mental disease or defect of the defendant will otherwise become an issue in the 10 case, the court shall appoint a qualified psychiatrist or psychologist [AT LEAST 11 TWO QUALIFIED PSYCHIATRISTS OR TWO FORENSIC PSYCHOLOGISTS 12 CERTIFIED BY THE AMERICAN BOARD OF FORENSIC PSYCHOLOGY] to 13 examine and report on [UPON] the mental condition of the defendant. If the court 14 appoints a psychiatrist [PSYCHIATRISTS], the psychiatrist [PSYCHIATRISTS]
01 may select psychologists to provide assistance. If the defendant has filed notice under 02 AS 12.47.090(a), the report shall consider whether the defendant can still be 03 committed under AS 12.47.090(c). The court may order the defendant to be committed 04 to a secure facility for the purpose of the examination for not more than 60 days or for 05 a [SUCH] longer period as the court determines to be necessary for the purpose and 06 may direct that a qualified psychiatrist retained by the defendant be permitted to 07 witness and participate in the examination. 08 * Sec. 2. AS 12.47.100(b) is amended to read: 09 (b) If, before imposition of sentence, the prosecuting attorney or the attorney 10 for the defendant has reasonable cause to believe that the defendant is presently 11 suffering from a mental disease or defect that causes the defendant to be unable to 12 understand the proceedings or to assist in the person's own defense, the attorney may 13 file a motion for a judicial determination of the competency of the defendant. Upon 14 that motion, or upon its own motion, the court, after making findings of fact and 15 conclusions of law that justify an examination, shall have the defendant examined 16 by at least one qualified psychiatrist or psychologist, who shall report to the court 17 concerning the competency of the defendant. For the purpose of the examination, the 18 court may order the defendant committed for a reasonable period to a suitable hospital 19 or other facility designated by the court. If the report of the psychiatrist or 20 psychologist indicates that the defendant is incompetent, the court shall hold a hearing, 21 upon due notice, at which evidence as to the competency of the defendant may be 22 submitted, including that of the reporting psychiatrist or psychologist, and make 23 appropriate findings. Before the hearing, the court shall, upon request of the 24 prosecuting attorney, order the defendant to submit to an additional evaluation by a 25 psychiatrist or psychologist designated by the prosecuting attorney. 26 * Sec. 3. AS 12.47.100 is amended by adding new subsections to read: 27 (i) The court may order a defendant to be examined under this section at an 28 outpatient clinic or other facility as a condition of the defendant's release under 29 AS 12.30. In considering the conditions of a defendant's release under this subsection, 30 the court shall, in addition to any applicable requirement under AS 12.30, consider 31 (1) any medical information provided by the Department of Family
01 and Community Services; 02 (2) the defendant's mental condition; 03 (3) the defendant's level of need for evaluation and treatment under 04 this chapter; 05 (4) the defendant's ability to participate in outpatient treatment; and 06 (5) the defendant's history of evaluation and treatment under this 07 chapter. 08 (j) If the defendant is charged with a felony offense against a person under 09 AS 11.41 or felony arson, a qualified psychiatrist or psychologist conducting an 10 examination under (b) of this section may, at the same time, evaluate the defendant to 11 determine whether the defendant meets the standards for involuntary commitment 12 under AS 47.30.700 - 47.30.915. 13 (k) In making findings of fact and conclusions of law under (b) of this section, 14 a court may rely on a defense attorney's representation, including privileged 15 information provided at an ex parte hearing. 16 * Sec. 4. AS 12.47.110(b) is amended to read: 17 (b) On or before the expiration of the initial 90-day period of commitment, the 18 court shall conduct a hearing to determine whether or not the defendant remains 19 incompetent. If the court finds by a preponderance of the evidence that the defendant 20 remains incompetent, the court may recommit the defendant for a second period of 90 21 days. The court shall determine at the expiration of the second 90-day period whether 22 the defendant has become competent. If, at the expiration of the second 90-day period, 23 the court determines that the defendant continues to be incompetent to stand trial, the 24 charges against the defendant shall be dismissed without prejudice, and continued 25 commitment of the defendant shall be governed by the provisions relating to civil 26 commitments under AS 47.30.700 - 47.30.915 unless the defendant is charged with a 27 felony offense against a person under AS 11.41 or felony arson [CRIME 28 INVOLVING FORCE AGAINST A PERSON] and the court finds that the defendant 29 presents a substantial danger of physical injury to other persons and that there is a 30 substantial probability that the defendant will regain competency within a reasonable 31 period of time, in which case the court may extend the period of commitment for an
01 additional 18 [SIX] months. If the defendant remains incompetent at the expiration of 02 the additional 18-month [SIX-MONTH] period, the charges shall be dismissed 03 without prejudice, and continued commitment proceedings shall be governed by the 04 provisions relating to civil commitment under AS 47.30.700 - 47.30.915. If the 05 defendant remains incompetent for five years after the charges have been dismissed 06 under this subsection, the defendant may not be charged again for an offense arising 07 out of the facts alleged in the original charges, except if the original charge is a class A 08 felony or unclassified felony. 09 * Sec. 5. AS 12.47.110 is amended by adding new subsections to read: 10 (f) The court may order a defendant to receive further evaluation and 11 treatment under (a) or (b) of this section at an outpatient clinic or other facility as a 12 condition of the defendant's release under AS 12.30. In considering the conditions of a 13 defendant's release under this subsection, the court shall, in addition to any applicable 14 requirement under AS 12.30, consider 15 (1) any medical information provided by the Department of Family 16 and Community Services; 17 (2) the defendant's mental condition; 18 (3) the defendant's level of need for evaluation and treatment under 19 this chapter; 20 (4) the defendant's ability to participate in outpatient treatment; and 21 (5) the defendant's history of evaluation and treatment under this 22 chapter. 23 (g) If, under (b) of this section, the court finds that a defendant charged with a 24 felony offense against a person under AS 11.41 or felony arson remains incompetent 25 at the expiration of a second 90-day period and the court does not extend the period of 26 commitment for an additional 18 months, or if the court finds that the defendant 27 remains incompetent at the expiration of the additional 18-month period, the 28 prosecutor shall 29 (1) file a petition seeking involuntary commitment of the defendant 30 under AS 47.30.706 before dismissal of the charges; 31 (2) notify the division of the Department of Law that has responsibility
01 for civil cases of the petition within 24 hours after filing the petition; and 02 (3) provide the court's findings to the division of the Department of 03 Law that has responsibility for civil cases within 24 hours after the court's ruling. 04 * Sec. 6. AS 47.30 is amended by adding a new section to read: 05 Sec. 47.30.706. Commitment after finding of incompetence. (a) If a person 06 who has been charged with a felony offense against a person under AS 11.41 or felony 07 arson has been found incompetent to proceed under AS 12.47, an attorney with the 08 Department of Law shall petition a court to have the person delivered to the nearest 09 evaluation facility for an evaluation under AS 47.30.710. 10 (b) Upon receiving a petition under (a) of this section, a court shall, unless the 11 presumption in (d) of this section has been successfully rebutted, issue an ex parte 12 order orally or in writing stating that there is probable cause to believe the respondent 13 is mentally ill and that condition causes the respondent to present a likelihood of 14 serious harm to self or others. The court shall appoint an attorney to represent the 15 respondent and may direct that a peace officer take the respondent into custody and 16 deliver the respondent to the nearest appropriate facility for evaluation. The ex parte 17 order shall be provided to the respondent and made a part of the respondent's clinical 18 record. The court shall set a date, time, and place for a 30-day commitment hearing, to 19 be held within 72 hours. The court shall confirm an oral order in writing within 24 20 hours after it is issued. 21 (c) A person taken into custody for evaluation under this section may not be 22 placed in a jail or other correctional facility except for protective custody purposes and 23 only while awaiting transportation to an evaluation facility. 24 (d) A defendant charged with a felony offense against a person under 25 AS 11.41 or felony arson and found to be incompetent to proceed under AS 12.47.100 26 is rebuttably presumed to be mentally ill and to present a likelihood of serious harm to 27 self or others. In evaluating whether a defendant is likely to cause serious harm, the 28 court may consider as recent behavior the conduct with which the defendant was 29 originally charged. 30 (e) After a respondent is committed under this section, the division of the 31 Department of Law that has responsibility for civil cases shall provide records related
01 to evaluation, examination, and treatment of the respondent to the division of the 02 Department of Law that has responsibility for criminal cases. 03 * Sec. 7. AS 47.30.710(a) is amended to read: 04 (a) A respondent who is delivered under AS 47.30.700 - 47.30.706 05 [AS 47.30.700 - 47.30.705] to an evaluation facility for [EMERGENCY] examination 06 and treatment shall be examined and evaluated as to mental and physical condition by 07 a mental health professional and by a physician within 24 hours after arrival at the 08 facility. 09 * Sec. 8. AS 47.30.725 is amended by adding new subsections to read: 10 (g) If a criminal charge of a felony offense against a person under AS 11.41 or 11 felony arson against a respondent has been dismissed under AS 12.47.110 and the 12 respondent is detained for evaluation or committed under AS 47.30.700 - 47.30.915, 13 the Department of Law shall notify a victim in the dismissed criminal case 14 (1) of the time and place of a hearing under AS 47.30.700 - 47.30.915; 15 (2) of the length of time for which the respondent is committed and 16 findings of fact made by the court; and 17 (3) when the respondent is discharged from commitment. 18 (h) Subsection (g) of this section may not be construed to give a victim in a 19 dismissed criminal case access to a record that is confidential under AS 47.30.845. 20 * Sec. 9. AS 47.30 is amended by adding a new section to read: 21 Sec. 47.30.771. Additional five-year commitment. (a) The respondent shall 22 be released from involuntary treatment at the expiration of 180 days unless the 23 professional person in charge or the attorney general's office files an additional 180- 24 day petition or a petition for a commitment of up to five years conforming to the 25 requirements of AS 47.30.740(a) except that all references to "30-day commitment" 26 shall be read as "the previous 180-day commitment" and all references to "90-day 27 commitment" shall be read as "five-year commitment." 28 (b) The procedures for service of the petition, notification of rights, and 29 judicial hearing shall be as set out in AS 47.30.740 - 47.30.750. Following a 180-day 30 commitment of a respondent, the court may order the respondent committed for an 31 additional treatment period not to exceed five years from the date on which the 180-
01 day treatment period would have expired if the court or jury finds by clear and 02 convincing evidence that 03 (1) the respondent is mentally ill and as a result is likely to cause 04 serious harm to self or others; 05 (2) the respondent has a criminal history that includes a felony offense 06 against a person under AS 11.41 or felony arson, including an offense for which the 07 respondent was found incompetent to stand trial under AS 12.47.100 and 12.47.110; 08 (3) the respondent has been found incompetent to stand trial under 09 AS 12.47.100 and 12.47.110 for a felony offense against a person under AS 11.41 or 10 felony arson; and 11 (4) commitment of the respondent for greater than 180 days but not 12 greater than five years is necessary to protect the public. 13 (c) Findings of fact relating to the respondent's behavior made at a 30-day 14 commitment hearing under AS 47.30.735, a 90-day commitment hearing under 15 AS 47.30.750, or a 180-day commitment hearing under AS 47.30.770 shall be 16 admitted as evidence and may not be rebutted except that newly discovered evidence 17 may be used for the purpose of rebutting the findings. 18 (d) Successive commitments are permissible on the same ground and under 19 the same procedures as the original commitment. An order of commitment may not 20 exceed five years. 21 (e) The department shall, by January 30 of each year, submit to the attorney 22 general, public defender, public advocate, Alaska Court System, and the attorney of 23 record for the respondent, if any, a report that details how many respondents are 24 committed under this section and how much time remains on each order of 25 commitment. 26 * Sec. 10. AS 47.30.780(a) is amended to read: 27 (a) Except as provided in (b) and (c) of this section, the professional person in 28 charge shall at any time discharge a respondent on the ground that the respondent is no 29 longer gravely disabled or likely to cause serious harm as a result of mental illness. A 30 certificate to this effect shall be sent to the court, which shall enter an order officially 31 terminating the involuntary commitment.
01 * Sec. 11. AS 47.30.780 is amended by adding new subsections to read: 02 (c) If a respondent committed under AS 47.30.770 or 47.30.771 has a criminal 03 history that includes a felony offense against a person under AS 11.41 or felony arson, 04 including an offense for which the respondent was found incompetent to stand trial 05 under AS 12.47.100 and 12.47.110, the professional person in charge may not 06 discharge the respondent under (a) of this section unless the court enters an order 07 officially terminating the involuntary commitment after a hearing. The respondent, the 08 professional person in charge, the prosecuting authority, and the respondent's attorney, 09 if applicable, shall appear at the hearing. If the prosecuting authority opposes 10 discharge, the court shall treat the matter as a petition for early discharge under (d) of 11 this section, notwithstanding a limitation imposed by (e) of this section. 12 (d) Except as provided in (e) of this section, a respondent committed under 13 AS 47.30.771 may petition the court for early discharge at any time during the 14 commitment. The court shall grant early discharge if the court finds by clear and 15 convincing evidence that, based on the respondent's ongoing medication or other 16 treatment, there is a factual and medical basis to believe the respondent is no longer 17 likely to cause serious harm to self or others. 18 (e) A respondent may not file a petition for early discharge within one year 19 after the date the court enters an initial commitment order or a final order ruling on a 20 previous petition for early discharge. 21 * Sec. 12. AS 47.30.805(a) is amended to read: 22 (a) Except as provided in (b) of this section, 23 (1) computations of a 72-hour [EVALUATION] period under 24 AS 47.30.706, 47.30.708, [AS 47.30.708] or 47.30.715 or a 48-hour [DETENTION] 25 period under AS 47.30.685 do not include Saturdays, Sundays, legal holidays, or any 26 period of time necessary to transport the respondent to the treatment facility, except 27 that if the exclusion of Saturdays, Sundays, and legal holidays from the computation 28 of a 72-hour evaluation period or 48-hour detention period would result in the 29 respondent being held for longer than 72 hours or 48 hours, as applicable, the period 30 ends at 5:00 p.m. on the next day that is not a Saturday, Sunday, or legal holiday; 31 (2) a seven-day detention at a crisis residential center expires at the end
01 of the seventh day following the respondent's arrival at the crisis stabilization center or 02 the crisis residential center, whichever is earlier; 03 (3) a 30-day commitment period expires at the end of the 30th day 04 after the 72 hours following initial acceptance; 05 (4) a 90-day commitment period expires at the end of the 90th day 06 after the expiration of a 30-day period of treatment; 07 (5) a 180-day commitment period expires at the end of the 180th day, 08 after the expiration of a 90-day period of treatment or previous 180-day period, 09 whichever is applicable; 10 (6) a five-year commitment period expires not later than five years 11 after the expiration of a 180-day period of treatment.