Legislature(2023 - 2024)DAVIS 106
04/20/2023 03:00 PM House HEALTH & SOCIAL SERVICES
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| Audio | Topic |
|---|---|
| Start | |
| SJR10 | |
| HB80 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SJR 10 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 80 | TELECONFERENCED | |
HB 80-INCOMPETENCY; CIVIL COMMITMENT
3:34:45 PM
CHAIR PRAX announced that the final order of business would be
HOUSE BILL NO. 80, "An Act relating to competency to stand
trial; relating to commitment based on a finding of
incompetency; relating to administration of psychotropic
medication; and relating to victims' rights during certain civil
commitment proceedings."
[Includes discussion of SB 53.]
3:35:00 PM
ANGELA HARRIS, representing self, provided invited testimony in
support of HB 80. She shared her experience of being stabbed in
the spine at the Loussac Library [in Anchorage] on 2/13/2022.
Her assailant, Corey Ahkivgak, was arrested later that day while
she was awaiting emergency surgery. She shared that she was
left paralyzed from the waist down along with decreased strength
and sensation in her upper extremities. She continued that she
could not live in her home until it was modified to be
handicapped accessible. Her parents came to live with her and
her two youngest children for eight months, while her
significant other had to quit his job to be the primary
caretaker. Her long road to recovery, she stated, has involved
physical and occupational therapy, as well as counseling to work
through the trauma of her assault.
MS. HARRIS reported that in 2018 Mr. Ahkivgak violently attacked
his mother, and in 2021 he attacked two other women, after which
he was declared incompetent and non-restorable. After being
held for 28 days, he was released back into the public on
1/6/22. She continued that on 2/10/22 he was arrested for
trespassing, and after stabbing her on 2/13/22, he was declared
incompetent with the possibility of release after a competency
hearing next month. She argued that improvements are needed to
the state's mental health system, particularly regarding violent
offenders; the loopholes in current laws which allow people who
commit violent crimes to be released back into the community
must be closed. She stressed that it should not be left to
victims to pursue a civil commitment.
MS. HARRIS stated that HB 80 is written to target the narrow
group of individuals like the man who assaulted her. She
expressed her belief that jail is an inappropriate place for Mr.
Ahkivgak, given his serious mental illness, but that community
placement is not an appropriate option either. She said the
rights of the victims to live safely in their communities must
be prioritized, while allowing individuals who need long term
care to receive it. She expressed the difficulty of living with
the reality her assailant could be released at his next 180-day
hearing next month. She related that she has attended several
hearings and expressed shock that often individuals are released
from custody simply because the waitlist for restoration is too
long, and civil liberties of the offender would be violated.
She urged that the state appropriate money for individuals to
regain competency so they can be charged criminally for their
violent acts. She further urged that there be a long-term
placement option for violent individuals who cannot regain
competency, rather than cycling them through the system. For
example, she said, her assailant has been in and out of the
state's criminal and mental health system for decades.
3:39:12 PM
MS. HARRIS stated that while continuing to attend occupational
and physical therapy appointments to physically heal, she is
sharing her story in the hope of reducing the amount of
senseless violent assaults. She pointed out that had she not
been on active duty with the U.S. Coast Guard at the time of her
assault, she would have very limited resources. She argued that
while her assailant has more rights, options, and resources at
his disposal than she does as his victim. She related that in
May 2022, three months after she was assaulted, she filed a
request with the [Violent Crimes] Compensation Board and last
week, one year later, received her first response of $3,000 for
mental health services. She voiced that this amount of money,
along with the amount of time is insulting.
MS. HARRIS said her assault is an example of the need for
building out Alaska's mental health facilities and [passing]
state laws to provide help to violent offenders and to keep
communities safe. She pointed out that the Alaska Psychiatric
Institute (API) serves the entire state, yet it operates on the
very limited maximum capacity of 80 beds, with only 10 beds
designated for restoration. Alaska's inadequate mental health
services for violent offenders and their victims must be
addressed, she stated. She emphasized that the loopholes
allowing violent offenders to victimize more innocent Alaskans
must be closed. She suggested that the moment an offender
commits a violent act against a fellow citizen, the offender's
rights should be weighed against the victim's rights for safety.
MS. HARRIS requested that committee members answer any concerns
about HB 80 with a solution to the problem rather than empty
words and opposition. She argued that HB 80 is a good starting
point and an opportunity to make changes that are beneficial for
all Alaskans. She encouraged the committee members to learn
more about the issues and find solutions to prevent what
happened to her from happening to others.
3:42:01 PM
REPRESENTATIVE FIELDS inquired about the status of resolving the
differences between the bill's two versions, [HB 80 and SB 53].
He questioned whether the committee should advance HB 80 as it
is. He advised that a bill should be passed this year.
3:42:48 PM
EMMA POTTER, Staff, Senator Matt Claman, Alaska State
Legislature, during the hearing on HB 80, on behalf of Senator
Claman, prime sponsor of SB 53, responded that she is before the
committee in support of Ms. Harris, and SB 53 was drafted in
response to Ms. Harris's tragic experience. She noted that SB
53 was heard the previous day in the Senate Finance Committee,
and it differs from HB 80.
REPRESENTATIVE FIELDS asked whether the differences will be
resolved in this committee or in the House Finance Committee.
3:44:00 PM
REPRESENTATIVE ANDY JOSEPHSON, Alaska State Legislature, as
prime sponsor of HB 80, responded that on 3/14/23 he and his
staff provided the committee with an overview of the problem and
of the bill. He explained that HB 80 and SB 53 are both trying
to ensure that maximum efforts are made at restoring people to
competency, while identifying those who cannot be restored and
considering civil liberties where there could be an involuntary
commitment. He pointed out that another factor taken up in SB
53 is AS 12.30 and bail conditions. He expressed the opinion
that this is something the committee should consider. People
are constitutionally entitled to bail, he stated, but it should
be legal and appropriate for different standards, if the person
poses a threat. He stressed that misdemeanors should be covered
which indicate erratic, random behavior, such as the abuse of
animals and random assaults, as these behaviors portend other
worse behaviors. For example, he continued, two or three months
prior to assaulting Ms. Harris, her assailant committed two
misdemeanor assaults, and these portended something worse could
come.
3:46:41 PM
ALEXANDER SCHROEDER, Staff, Representative Andy Josephson,
Alaska State Legislature, on behalf of Representative Josephson,
prime sponsor of HB 80, discussed the differences between HB 80
and SB 53, with the main difference being the five-year civil
commitment process. He explained that the civil commitment
process [for both pieces of legislation] would be that the
person first goes through a three-day ex parte order; then a 30-
day; then a 60-, 90-, and 180-day. If the person is to be kept
after the 180 days, it would be a recurring 180 days to prove
there is still a danger to self or others. He stated that under
SB 53, but not HB 80, a new option would be created for someone
found incompetent, where a five-year civil commitment process
would be filed, and the person could be held for five years,
with a yearly petition to be released.
MR. SCHROEDER addressed another difference. He noted that under
current statute the judge "shall" order restoration for felony
charges. He offered his understanding that SB 53 would not
change this requirement, but HB 80 would. He explained that
Section 5 of HB 80 would create a new subsection (f) which lists
the crimes the judge must consider for requiring restoration.
He said this change reflects the opinion that currently the
resources are being delineated incorrectly.
MR. SCHROEDER stated that SB 53 would, after the six-month
initial commitment, require a new type of criteria to hold
someone for longer, changing crimes involving force against a
person to a felony, under AS 11.41. He continued that HB 80
would get rid of the crime involving force against a person but
preserve the substantial probability. He explained that the
theory is that someone undergoing required restoration has
already committed a crime which would warrant further
restoration; therefore, this person would have to meet the
substantial probability of further committing a crime.
MR. SCHROEDER said another difference is that both bills extend
the restoration period to two years, but each bill does it in a
different way. He explained that under HB 80 it would be 180
days after the six months, while under SB 53 it would be an 18-
month window.
3:51:49 PM
REPRESENTATIVE FIELDS inquired about the longest legally
defensible period that people can be civilly committed when it
is manifestly obvious the person is a danger to society.
REPRESENTATIVE JOSEPHSON answered that there are states which
have indefinite periods, but the key here is receiving the
general support from the mental health and disability
communities. He pointed out that there is concern with the
five-year rule, as SB 53 is not limited to five years, and it
could be 10 or 15 years. Furthermore, he explained that, as
currently written, SB 53 is the more vetted and sophisticated
bill, as the burden would be shifted from the state to the
patients to make their case for removal from custody. Based on
the testimony received, he suggested that the disability
community is concerned about this; therefore, it is something to
be considered. He advised that SB 53 is "ahead" of HB 80 on the
seamless transition of moving people from being deemed
unrestorable to involuntary commitment.
3:54:10 PM
MR. SCHROEDER stated that both bills deal with the petition
process of moving individuals from the criminal to the civil
side. He suggested that SB 53 better tackles the intricacies of
doing this between the Department of Family and Community
Services (DFCS) and the Department of Law (DOL). In this
respect the only difference between the bills, he said, is that
HB 80 makes DFCS file the petition for civil commitment, because
currently this is vague with no requirement, as the petition
could be filed by any adult. Under SB 53, he stated that the
prosecutor "shall" file the petition and report the filing to
DOL.
REPRESENTATIVE JOSEPHSON added that under SB 53 there would not
be an instant dismissal the moment a person is found not
competent; there would be an intervening, short period, where
DOL could file a petition. He expressed the understanding from
the court system that it does not want to appear to be the
petitioner because this is not the role of the court. The
issue, he continued, would be to avoid a situation where a
dismissal of a case based on incompetency allowed a potentially
dangerous person out on his/her recognizance, and then the
person is brought back to civil commitment.
MR. SCHROEDER further explained that under HB 80 the charges
must be dismissed, and then a petition is filed; however, the
problem is the person's location between these two events. He
said that SB 53 would move the discharge until after the
petition is filed. The petition, he continued, would be a
three-day ex parte order at which that person would undergo a
civil commitment proceeding, and this would determine whether
the person goes through the 30-day civil commitment process. He
pointed out that this would create a seamless process in which
the person is not let back out, and the statute is not changed.
3:57:50 PM
REPRESENTATIVE FIELDS observed that there are four committees of
referral for HB 80, with this committee being the first one. He
surmised that a leadership discussion is needed to get a bill
passed this year. He said he would leave it to [the prime
sponsors of the bills] to figure out the best way to merge these
concepts.
CHAIR PRAX responded that he is working on this. He said the
challenge will be figuring out how to vet and glean the best
parts of both bills, and then come out with a finished product.
3:59:52 PM
REPRESENTATIVE JOSEPHSON related that there is interest in
having an upstream committee referral removed, leaving three
committees including this one. He said he is inclined to
encourage the committee to adopt SB 53. He stated he is
personally wedded to ensuring that misdemeanants who act in a
particularly erratic and dangerous way and whose competency is
questioned are part of this bill, so he would like further
opportunity to come before this committee to convey what needs
strengthening. He advised, however, that SB 53 is the more
sophisticated and vetted bill, and he encouraged the committee
to adopt a committee substitute (CS) which this.
4:01:28 PM
REPRESENTATIVE RUFFRIDGE opined that this is an incredibly
important issue, and it should be addressed during this session.
He thanked Representative Josephson and Senator Claman for their
work and urged that the committee do everything possible to move
things along.
4:02:27 PM
CHAIR PRAX asked whether a similar bill has been filed in
previous sessions.
REPRESENTATIVE JOSEPHSON responded that two terms ago Senator
Claman worked with Senator Giessel on a short bill that
concerned the melding of public safety and health issues. This
had looked to a new venue where people with mental health issues
would be treated instead of going to prison. He said this was
followed up with House Bill 172 [passed during the Thirty-Second
Alaska State Legislature], with the Crisis Now provision. He
stated that these are only forerunners to the proposed
legislation, and not the same. He expressed the understanding
that in 2008 a bill by Senator Liesl McGuire was designed to
deal with this, and though it was a good effort, it did not do
it.
4:04:40 PM
SENATOR MATT CLAMAN, Alaska State Legislature, testified as the
prime sponsor of SB 53. He concurred that the specific issue
addressed in the proposed bills was not addressed by prior
legislation. He stated that this is addressing people who are
incompetent under Title 12, and, based on some level of
dangerousness defined in statute, these individuals be
immediately put into an involuntary commitment process.
CHAIR PRAX asked whether anything comes to mind from House Bill
172, as there were similar civil rights concerns. He further
asked whether the committee could be given documentation
concerning this.
SENATOR CLAMAN answered that House Bill 172 dealt with a
different timeframe and course of action in the process of
dealing with mental illness. He advised that the due process
concerns raised by House Bill 172 are not an issue in his
proposed bill. He stated he is available to meet with members
of the committee and staff to talk about the proposed bill.
4:06:51 PM
REPRESENTATIVE RUFFRIDGE offered his understanding that the goal
of SB 53 and HB 80 would be to fix a loophole concerning what
happens when someone is deemed incompetent to stand trial.
Under the current mechanism, he continued, individuals would
have their charges dismissed; however, after this there is a
question mark of what happens next, and the goal here is to
remove this question mark. He requested affirmation that this
would not destroy people's rights or incarcerate them against
their will; rather, it would create a public safety mechanism
for both the public and "the patient."
SENATOR CLAMAN responded in the affirmative. He added that
under current statute the loophole is when the individuals are
deemed incompetent, there is no basis to hold them; therefore,
charges are dismissed. From this point the Civil Division of
DOL, or another party, has to initiate an involuntary commitment
proceeding, which sometimes happens. He stated in the case of
Ms. Harris this did not happen. He explained that the structure
proposed by the Senate is, prior to dismissal of the criminal
case for people who meet a certain statutory definition of
"dangerousness," the prosecutor would file a civil commitment
petition, which would create a new civil case; the person would
be held, the civil commitment process would be initiated, and
the Civil Division would continue forward with the civil case.
4:09:33 PM
REPRESENTATIVE RUFFRIDGE, in the case of a crime where the
charges are dismissed, asked whether it is solely the
responsibility of the Civil Division to file for incompetency or
civil commitment. He surmised that in the case of Ms. Harris,
an individual cannot apply for the person to be civilly
committed.
SENATOR CLAMAN replied that more research would be needed into
whether Ms. Harris could have filed a petition against the
person who attacked her. He said that, per current statute, the
"medical person in charge" can file a petition for involuntary
commitment based on what is apparent. He acknowledged that
these procedural aspects were touched on in House Bill 17, which
is what is in place for having someone involuntarily held, and
the authority to do so. A police officer, he noted, can also
file an involuntary commitment proceeding.
4:11:32 PM
REPRESENTATIVE JOSEPHSON advised that under current state law
anyone can file such a petition. He expressed the belief that
the benefit of HB 80 and SB 53 would be to specify these
individuals. He said that several experts have cautioned that
for this to work properly, more personnel and more facilities
would be needed.
SENATOR CLAMAN clarified that there are many court forms, and
often these forms will dictate more than anything else. He
related that the current form for filing a 48-hour petition
lists a psychiatrist, physician, psychologist, registered nurse,
therapist, family member, counselor, social worker,
psychological associate, other mental health professional, and
other interested person who must state his/her interest. He
expressed the opinion that this clarifies Representative
Josephson's response. The answer is that anyone can file, he
continued, and the only requirement is a statement of why he or
she has an interest in the person.
4:13:52 PM
CHAIR PRAX clarified that the situation would involve a person
who is picked up for an incident and declared incompetent, and
then the court dismisses the case. He expressed the
understanding that the objective to the proposed legislation is
that a state employee would be required to file and follow up on
the individual.
SENATOR CLAMAN answered that in SB 53, before the case is
dismissed, the prosecutor would file the civil petition under
Title 47. He explained that in statute it would be recognized
that before there is a motion to dismiss the prosecutor must
prepare the paperwork. He expressed the expectation that there
will be a court form, and the prosecutor would ask that the case
be held while the form is completed. Once the prosecutor files
the civil petition form, the process would start.
4:15:52 PM
CHAIR PRAX asked whether the civil rights limitations have been
considered.
SENATOR CLAMAN replied that once the form is filed, the existing
30-day commitment process would start with all these rights in
place. He pointed out that SB 53 would remove the step in the
process called the 48-hour exam. This exam entails the police
officer filing the petition to bring in the individual, and then
the hospital would determine whether to file a petition to hold
the individual. Under SB 53, he explained, the person can be
held for the existing 72-hour hold procedure and at 72 hours
there must be a contested hearing where the defense attorney is
present. The attorney from the Attorney General's office on the
civil side would be present, he continued, and this attorney
would determine how to go forward. These are the current
existing rights, he noted, where once an order is placed the
person gets 72 hours, and then there is a hearing, at which
point the normal civil commitment process goes forward. What
the proposed legislation would ensure, Senator Claman advised,
is that a person who meets the "dangerousness" criteria would
not be released for the first 72 hours.
4:18:07 PM
CHAIR PRAX questioned the potential number of cases. He offered
his understanding that this is referring to misdemeanors and
whether there are legitimate reasons in these cases, such as
cruelty to animals, which would deserve further evaluation on
whether the person is competent to stand trial.
REPRESENTATIVE JOSEPHSON expressed the belief that a person
committing cruelty to his/her own pet is chargeable, but because
the person has a relationship with the pet, this would not be
reason for a competency hearing or an involuntary commitment.
What portends concern for him, he continued, is when a person
burns down a building and does not recall doing it or why, or
when a person attacks someone's dog for no reason. He stated
that this is what is included in [HB 80].
4:20:46 PM
CHAIR PRAX opined that some good could be done for a person by
going through the involuntary civil commitment procedure;
however, there is some point where the state may be exceeding
the bounds of the rights of the individual. Another
consideration, he stated, is that with an overload of cases,
there may not be sufficient attention to details.
REPRESENTATIVE JOSEPHSON answered that the committee may want to
hear from the court system concerning its data. He related that
many hundreds of cases are heard per year, but many of these are
deemed competent, and these cases proceed as any other criminal
case. This leaves a relatively small number of individual cases
which should not be dismissed because the individuals are not
well enough for trial. He asserted that, in relation to these
cases, there is currently no secondary system to ensure public
safety.
4:23:22 PM
SENATOR CLAMAN added that the court system reported it had 176
cases in the last calendar year which involved questions of
competency. Some percentage of these 176 cases will be found
competent to stand trial and subject to the criminal system. He
specified that HB 80's approach is the inclusion of some
misdemeanors which would trigger the mandatory petition for
involuntary commitment if the person were found incompetent. He
continued that SB 53 does not include misdemeanors. It only
includes felony offenses against a person and arson. One reason
for this difference, he explained, is because, in a misdemeanor
offense the maximum sentence is one year, and per due process,
the person who is being held for restoration could be held for a
period longer than the potential sentence served if convicted.
This becomes an issue, he further explained, if the person
spends time in jail for restoration to competence, but because
of a lack of the resources to bring the person to competence,
the extended time in jail becomes a factor in due process
analysis. He advised that this is not a simple analysis. He
added that SB 53 has an option of up to a five-year involuntary
commitment on the civil side. He explained that SB 53 only uses
felony offenses because there would be the potential of being
held for up to a five-year involuntary commitment. He expressed
the opinion that one version is not better than the other;
however, there are some detailed policy questions.
REPRESENTATIVE JOSEPHSON stated he is working with Senator
Claman on this, and he will give this more thought. He voiced
the concern that in the case of Mr. Ahkivgak, who prior to his
assault on Ms. Harris had not committed a felony, rather he had
committed some very "bizarre" misdemeanors. He expressed the
belief this is an indication that misdemeanors need to be
investigated.
4:26:47 PM
CHAIR PRAX noted that the question of protecting both society
and individual rights has been a topic for decades, and it will
take thought. He opined that, if possible, the issue should be
addressed this year, and with more thought, more discussion
could happen next year. He said the committee will meet with
four department representatives where questions can be asked.
[HB 80 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| SJR 10 Support Redacted.pdf |
HHSS 4/20/2023 3:00:00 PM |
SJR 10 |
| SJR10 Fiscal Note LEG-SESS.pdf |
HHSS 4/20/2023 3:00:00 PM |
SJR 10 |
| SJR10 Sponsor Statement 03.22.23.pdf |
HHSS 4/20/2023 3:00:00 PM |
SJR 10 |
| SJR10 Support Document ADN 01.23.23.pdf |
HHSS 4/20/2023 3:00:00 PM |
SJR 10 |
| SJR10 Version 33-LS0490A.PDF |
HHSS 4/20/2023 3:00:00 PM |
SJR 10 |
| SJR10 Support AMA Letter to Congress 03.15.23.pdf |
HHSS 4/20/2023 3:00:00 PM |
SJR 10 |