Legislature(2023 - 2024)SENATE FINANCE 532
04/19/2023 01:30 PM Senate FINANCE
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| Audio | Topic |
|---|---|
| Start | |
| HB39 | |
| HB41 | |
| SB107 | |
| SB53 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 53 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 39 | TELECONFERENCED | |
| += | HB 41 | TELECONFERENCED | |
| += | SB 22 | TELECONFERENCED | |
| += | SB 57 | TELECONFERENCED | |
| += | SB 107 | TELECONFERENCED | |
SENATE BILL NO. 53
"An Act relating to involuntary civil commitments."
2:30:48 PM
Co-Chair Olson welcomed Angela Harris to the committee. He
explained that Ms. Harris was very involved in the bill and
would offer testimony.
2:31:27 PM
SENATOR MATT CLAMAN, SPONSOR, relayed that his office began
work on SB 53 at the request of other legislators and in
response to the tragic experience of his constituent Angela
Harris. He relayed that Ms. Harris was returning books to
the Loussac Library in Anchorage when a man stabbed her in
the back. The perpetrator had attacked two other women less
than two months earlier and had been released by the court
after he was found incompetent to stand trial. He believed
that the individual should not have been released in the
community. A petition for involuntary commitment should
have been filed based on his prior attacks and his
psychiatric condition, which made him a danger to the
community.
Senator Claman noted that the bill dealt with Title 12,
which was related to criminal charges in Title 47, which
was related to civil proceedings. The determination of if
an individual was competent or incompetent to stand trial,
in addition to restoration to competency, was a process set
forth in the code of criminal procedure in Title 12. The
standard for determining an individual's competency to
stand trial was found both in statute and a long history of
case law. A simple explanation of competency was whether an
individual understood the charges against them, could
assist their lawyer, and was able to plead guilty or not
guilty to the charges. He explained that competency was not
a defense and was unrelated to the mental state of the
individual at the time of the crime.
Senator Claman continued to discuss the bill. He asserted
that in order to protect constitutional due process rights
of individuals in the legal system, persons who were
incompetent to stand trial could not be convicted of a
crime. This rule is because a person has the right to
understand a crime that they are being charged with, as
well as the consequences of the crime if convicted. A
separate process was used for involuntary commitment in
Title 47. The standard for involuntary commitment was
whether an individual, as a result of mental illness, was a
danger to themselves or others. The bill would create a
duty for the Department of Law to petition seeking
involuntary commitment when a defendant was found
incompetent to stand trial at the expiration of the period
for competency restoration the defendant was charged with a
felony offense against a person or felony arson, and
presented a danger to themselves or others.
Senator Claman discussed working with his constituent. He
explained that the legislation created an involuntary hold
of up to five years for individuals who met the following
qualifications: having been found incompetent to stand
trial in a felon offense against a person or felon arson,
having been previously subject to involuntary commitment
orders of 30/90/180 days, having a history of felony
against a person or felony arson, and presenting a danger
to themselves or others.
2:34:37 PM
Senator Claman continued that a five-year hold for
individuals that met the standards reflected the reality
that there were a small number of individuals who, as a
result of their mental illness, presented a danger and were
not suitable for community-based treatment options. The
bill proposed a hold of up to five years for a limited
number of individuals who needed long-term treatment. He
noted that the proposed involuntary hold for up to five
years had raised some questions during the committee
process. He noted that Alaska statutes already allowed for
an involuntary commitment for an unlimited duration under
AS 12.47.090, which was for individuals found not guilty
for reason of insanity. He continued that the courts had
imposed the unlimited and involuntary commitment, and those
being held for the unlimited period had not challenged the
longer period in court.
Senator Claman asserted that the proposed longer commitment
period would have fewer disruptions for mandatory court
proceedings and was a shorter period than the unlimited
involuntary commitment under AS 12.47.090. He asserted that
as a matter of protecting due process rights of individuals
in the state's care, the bill included language that the
respondent may petition for early discharge. The court must
find, in order to grant a petition for early discharge,
that the respondent was not a risk to themselves or others.
The bill added notification for victims of the time and
place of the civil commitment hearing, the length of time
for which the respondent was committed, and when the
respondent was discharged. The bill created a five-year
commitment option.
Senator Claman asserted that the five-year commitment
option would allow for longer treatment plans and better
coordination of care. Additionally, the bill also reduced
the number of psychiatrists and psychologists needed for
evaluation under the insanity defense from two to one. The
bill added a requirement that the court must make a finding
when there was a request for a competency evaluation and
increased the time for competency restoration from one to
two years in serious cases. The bill provided that the
court could release defendants on bail for competency
evaluation, examination, and treatment.
Co-Chair Olson asked the sponsor if he could comment on any
significant changes to the bill that had taken place in
previous committees, and whether he was in favor.
Representative Claman commented that he supported all the
changes made in prior committees, which his staff would
address in her comments.
2:37:55 PM
EMMA POTTER, STAFF, SENATOR MATT CLAMAN, reviewed a Summary
of Changes from the previous versions of the bill. She
noted that she would review substantive changes made in the
Senate Health and Social Services (HSS) Committee and the
Senate Judiciary Committee. The HSS Committee had passed a
CS that reflected collaborative work with the Department of
Law and the Alaska Court System. The CS reduced the number
of psychiatrist or psychologist evaluations for the
affirmative insanity defense from two to one to match the
number of evaluations required in other areas of statute
for competency evaluations and involuntary commitment. The
change included the removal of the requirement that the
psychologist have a certification by the American Board of
Forensic Psychology. The sponsor had learned that Alaska
did not have any psychologists currently practicing in the
state that met the standards, which complicated criminal
process under the insanity defense.
Ms. Potter continued that the bill version that came out of
the HSS Committee also included a requirement that
attorneys make motions in writing requesting a competency
evaluation. The provision was later amended and refined in
the Senate Judiciary Committee. The written requirement had
prompted an indirect court rule change, which was not the
intention. She added that conversations with the Public
Defender Agency helped inform the changes in the next
committee. The bill required the court to make findings of
fact and conclusions of law before ordering a competency
evaluation.
Ms. Potter explained that the CS added references to bail
conditions and bail release conditions in order to
incorporate out-patient competency examinations,
evaluations, and treatment into the competency restoration
process. The change reflected a request from the Department
of Law. She noted that shifting individuals to out-patient
services when appropriate and possible would decrease the
system overload for competency restoration. She discussed
another change requested by the department, which involved
an increase to the maximum total time for competency
restoration holds for one to two years for charges of a
felony against a person or felony arson. The bill asserted
a standard of dangerousness that would make a person
eligible for an up-to five-year commitment. At the request
of the Department of Law, the CS was amended to include
felony crimes of arson.
Ms. Potter specified that the CS also included notice
provisions for victims, and a dismissed criminal case when
the individual case was found incompetent to stand trial
and committed involuntarily after a felony crime against a
person or felony arson. The final change in the Senate HSS
Committee included provisions that were drafted to close
the gap between dismissed criminal charges due to
incompetency, and the start of civil commitment
proceedings. The process was refined in the Senate
Judiciary Committee, which had passed out the current
Version P of the bill.
Ms. Potter continued that the CS removed the requirement
that attorneys make written motions when requesting
competency evaluation and instead required that the court
make findings of fact and conclusions of law that justified
an examination before ordering a defendant examined for
competency. The change reflected a compromise between
interested parties, the Department of Law, and the Public
Defender Agency. The CS narrowed the arson standard to
felony arson only.
Ms. Potter identified that the most substantial change
contained in the CS was the new section AS 47.30.706 which
allowed for a smooth transition for dangerous individuals,
based on the legislation standard, from dismissed criminal
charges due to incompetency to the start of civil
commitment proceedings immediately upon dismissal of
criminal charges. The section created a duty for the
Department of Law to file a petition for emergency
evaluation under the new section.
2:41:51 PM
Co-Chair Olson asked about the reason for the change
related to incompetency evaluations done by a psychologist.
Ms. Potter asked Co-Chair Olson to repeat the question.
Co-Chair Olson thought he had heard that Ms. Potter had
indicated that the CS removed the requirements for a
psychologist or psychiatrist.
Representative Claman explained that the change was
specific to the affirmative defense of insanity. Under
current statute, there was a requirement to appoint two
people to evaluate the defendant. In all other areas, only
one evaluator was required. The change would only require
one psychologist or psychiatrist. He furthered that the
practice of a second psychiatrist or psychologist added an
unnecessary complication and expense without adding
additional analysis of the case. He added that the
prosecution and defense were both likely to hire
evaluators.
Co-Chair Olson understood the change.
2:44:02 PM
Ms. Potter addressed a Sectional Analysis document (copy on
file):
Section 1
AS 12.47.070. Psychiatric examination
Amends subsection (a) to reduce the number of
qualified psychiatrists or psychologists from two to
one for evaluation under the affirmative defense of
insanity. Removes the requirement that the
psychologist is certified by the American Board of
Forensic Psychology.
Section 2
AS 12.47.100. Incompetency to proceed
Amends subsection (b) by adding the requirement that
the court make findings of fact and conclusions of law
that justify an examination when having the defendant
examined for competency.
Section 3
AS 12.47.100. Incompetency to proceed
Adds a new subsection (i), which states that the court
may order a defendant on bail to be examined at an
outpatient clinic or other facility under AS 12.30.
This section includes requirements that the court
shall consider, in addition to applicable requirements
under AS 12.30, for the conditions of a defendant's
release under this section: (1) any medical
information provided by the Department of Family and
Community Services; (2) the defendant's mental
condition; (3) the defendant's level of need for
evaluation and treatment under this chapter; (4) the
defendant's ability to participate in outpatient
treatment; and (5) the defendant's history of
evaluation and treatment under this chapter.
Adds a new subsection (j) which states that when a
qualified psychiatrist or psychologist is conducting
an examination for competency under (b) of this
section, they may, at the same time, evaluate the
defendant to determine whether the defendant meets the
standards for involuntary commitment.
Adds a new subsection (k) which states that a court
may rely on a defense attorney's representation,
including privileged information provided at an ex
parte hearing, in making its findings of fact and
conclusions of law when having the defendant examined
for competency.
Section 4
AS 12.47.110. Commitment on finding of incompetency
Amends subsection (b) to increase the maximum total
time for competency restoration hold from one year to
two years when the defendant is charged with a felony
offense against a person or felony arson and the court
finds that the defendant presents a substantial danger
of physical injury to other persons and that there is
a substantial probability that the defendant will
regain competency. This change is reflected by
amending "six" months to "18" months.
Section 5
AS 12.47.110. Commitment on finding of incompetency
Adds a new subsection (f), which states that the court
may order a defendant on bail to receive further
evaluation and treatment at an outpatient clinic or
other facility under AS 12.30. This section includes
requirements that the court shall consider, in
addition to applicable requirements under AS 12.30,
for the conditions of a defendant's release under this
section: (1) any medical information provided by the
Department of Family and Community Services; (2) the
defendant's mental condition; (3) the defendant's
level of need for evaluation and treatment under this
chapter; (4) the defendant's ability to participate in
outpatient treatment; and (5) the defendant's history
of evaluation and treatment under this chapter.
Adds a new subsection (g), which states that, upon the
court finding that the defendant charged with a felony
offense against a person or felony arson remains
incompetent at the expiration of the period for
competency restoration, the prosecutor shall: (1) file
a petition seeking involuntary commitment under the
new AS 47.30.706 before dismissal of charges; (2)
notify the civil division of the Department of Law
within 24 hours after filing the petition; and (3)
provide the court's findings to the civil division of
the Department of Law within 24 hours after the
court's ruling.
2:47:43 PM
Ms. Potter continued to address the Sectional Analysis:
Section 6 AS 47.30.706. Commitment after finding of
incompetence Creates a new section AS 47.30.706:
Commitment after finding of incompetence. Subsection
(a) states that if a person who has been charged with
a felony offense against a person or felony arson has
been found incompetent to proceed with criminal
charges, an attorney with the Department of Law shall
petition the court to have the person delivered to the
nearest evaluation facility for an evaluation.
Subsection (b) states that upon receiving the petition
under (a) of this section, the court shall: unless the
presumption is successfully rebutted, issue an ex
parte order stating that there is probable cause to
believe the respondent is mentally ill and that
condition causes the respondent to present a
likelihood of serious harm or self to others; appoint
an attorney to represent the respondent; and may
direct that a peace officer take the respondent into
custody and deliver the respondent to the nearest
appropriate facility for evaluation. The court shall
set a date, time, and place for a 30-day commitment
hearing, to be held within 72 hours.
Subsection (c) states that a person taken into custody
for evaluation under this section may not be placed in
a jail or other correctional facility except for
protective custody purposes and only while awaiting
transportation to an evaluation facility.
Subsection (d) states that an individual charged with
a felony offense against a person or felony arson who
is found to be incompetent to stand trial is
rebuttably presumed to be mentally ill and present a
likelihood of serious harm to self or others. This
creates the basis upon which the court can issue the
ex parte order and initiate the 30-day commitment
proceedings. This section states that in its
evaluation whether a defendant is likely to cause
serious harm, the court may consider the conduct with
which the defendant was charged.
The new subsection (e) states that after a respondent
is committed under this section, the civil division of
the Department of Law shall provide records related to
evaluation, examination, and treatment of the
respondent to the criminal division of the Department
of Law.
Section 7 AS 47.30.710. Examination; hospitalization
Adds reference to the new section AS 47.30.706:
Commitment after finding of incompetence to subsection
(a) of AS 47.30.710.
Section 8 AS 47.30.725. Rights; notification Adds new
subsections (g) and (h), which create notification
provisions for the victim of the dismissed criminal
case. Subsection (g) states that the victim shall be
notified of: the time and place of a civil commitment
hearing; the length of time for which the respondent
is committed and findings of fact made by the court;
and when the respondent is discharged from commitment.
Subsection (h) states that subsection (g) does not
give the victim in a dismissed criminal case access to
a record or information that is confidential under AS
47.30.845.
Section 9 AS 47.30.771. Additional five-year
commitment Adds a new section creating an additional
involuntary commitment of up to five years. Five-year
commitment petitions are filed at the expiration of
180-day commitments for individuals who meet the
following criteria: the respondent is mentally ill and
as a result is likely to cause harm to self or others;
the respondent has a history of a felony offense
against a person under AS 11.41 or felony arson; the
respondent has been found incompetent to stand trial
under AS 12.47.100 and 12.47.110 for a felony offense
against a person under AS 11.41 or arson; and
commitment of the respondent for greater than 180 days
but not greater than five years is necessary to
protect the public.
Clarifies that findings of fact relating to the
respondent's behavior made at 30-day, 90-day, and 180-
day commitment hearings shall be admitted as evidence
and may not be rebutted except that newly discovered
evidence may be used for the purpose of rebutting the
findings. Instructs the department to submit an annual
report to the attorney general, public defender,
public advocate, Alaska Court System, and the attorney
of record of the respondent detailing how many
respondents are committed under this section and how
much time remains on each order of commitment.
2:51:31 PM
Ms. Potter continued to address the Sectional Analysis:
Section 10 AS 47.30.780. Early discharge Amends
subsection (a) to include reference to new subsection
(c) of AS 47.30.780.
Section 11 AS 47.30.780. Early discharge Adds new
subsections that require that the professional person
in charge may not discharge respondents from
involuntary commitment unless the court enters an
order officially terminating the involuntary
commitment after a hearing. This section requires a
court decision on discharge of a respondent from
involuntary commitment.
Section 12 AS 47.30.805. Computation, extension, and
expiration of periods of time Amends section (a) to
include five-year commitments. States that a five-year
commitment period expires at the end of five years
after the 180-day period of treatment.
2:52:44 PM
ANGELA HARRIS, SELF, JUNEAU, shared her story of being
stabbed at the Loussac Library in Anchorage on Sunday,
February 13, 2020. She recounted that her assailant had
stabbed her and penetrated her spinal cord before being
arrested later that afternoon. The stabbing had left her
paralyzed from the waist down and with decreased sensation
and strength in her upper extremities, which required major
changes to her life including modifications to her house.
She discussed the resources necessary for her care, and her
long ongoing recovery. She reported that her assailant had
a history of assaulting women, and in 2018 he violently
attacked a family member. He attached two other women on
December 10, 2021. He was declared incompetent and not
restorable and released back into the public on January 6,
2022, after being held for only 28 days. On February 10,
2022, he was arrested for trespassing at the Captain Cook
Hotel.
Ms. Harris contended that after her stabbing, her assailant
was declared incompetent and could be released after his
next incompetency hearing the following month. She asserted
that the state needed improvements to its mental health
system, particularly regarding violent offenders, and
needed to close the loop on current laws that allowed for
release of people after committing violent crimes. She
asserted that it should not be left up to victims to pursue
a civil commitment if an assailant was being released due
to incompetence. She asserted that SB 53 closed the
loophole for dangerous individuals such as her assailant.
Ms. Harris summarized that the bill was written to address
the narrow group of individuals such as the man that
assaulted her. She believed that jail was an inappropriate
place for her assailant given his serious mental illness.
She also believed the community was an improper placement.
2:55:58 PM
Ms. Harris acknowledged concerns about the protection of
civil liberties, and stressed the importance of
prioritizing the rights of victims to safely live in
communities while allowing individuals to receive necessary
long-term care.
Ms. Harris discussed the difficulty of knowing her
assailant could be released. She questioned why funds were
not spent towards a better process. She thought without the
chance for competency, perpetrators should be provided
long-term placement options. She asserted that it was not
fair to victims or perpetrators of violent harm to allow
them to cycle through the system repeatedly without
improvement to mental health. She noted that her assailant
had been in and out of the state's criminal and mental
health system for decades. She hoped to share her story to
prevent further violence.
Ms. Harris discussed filing a claim with the Victims
Compensation Board and only received a response after a
year. She emphasized the need to build out state mental
health facilities and laws. She discussed the limitations
of API, which had periods of operating at decreased
capacity. She stressed the need to address inadequate
mental health services for violent offenders and victims.
She thought an offender's rights should be weighed against
the rights of a victim. She thought the bill was a good
starting point.
Co-Chair Olson thanked Ms. Harris for her testimony.
Senator Bishop shared that he had spoken with Ms. Harris
previously. He discussed her family and the pain that was
caused by her attack.
3:01:34 PM
ANGIE KEMP, DIRECTOR, CRIMINAL DIVISION, DEPARTMENT OF LAW,
introduced herself and relayed that she was present to
answer questions and address the fiscal note.
Co-Chair Olson asked if the bill made it so that there
would not be repeated tragedies such as the one described
by Ms. Harris.
Ms. Kemp thought the bill took steps in the right direction
towards dealing with the crisis. She discussed the
requirement that a petition for hospitalization be filed.
She assumed that everyone knew that historically the
petition could have been filed by a variety of individuals
and wasn't required until the bill was proposed.
Co-Chair Olson asked how to balance the measure with the
civil liberties of an individual that had not been
convicted.
Ms. Kemp thought that the matter could be challenging. She
thought there was a careful balance, and highlighted
crafting the bill in a way that targeted offenders that
were committing assault or arson, in targeting the most
violent. She thought her colleagues in the civil law
division could speak about some of the constitutional
parameters implicated by longer periods of commitment. She
noted that the criminal division had not been typically
involved in filings related to petitions to
hospitalizations. She referenced AS 47.30.
Co-Chair Olson shared concerns about mental illness in
rural areas. He mentioned two recent shootings in Golovin,
one of which had resulted in a fatality. He noted that in
some cases there was only a Village Public Safety Officer
(VPSO), and that many places did not even have a VPSO.
Ms. Kemp thought a two-phased approach was needed including
dealing with criminal behavior as well as addressing mental
health issues as necessary. She acknowledged that the
issues Co-Chair Olson mentioned would need to be dealt with
by law enforcement and addressed to ensure accountability.
3:06:02 PM
Senator Kiehl appreciated Ms. Kemp's reference to the bill
and making it someone's explicit job to file a petition for
hospitalization, and thought it was a strong benefit of the
legislation. He asked to discuss changes regarding holds to
restore competency when a person was found initially
incompetent to stand trial. He asked Ms. Kemp to address
the extended periods of competency restoration available in
the bill, and what she considered the state's capacity to
restore more people during the time period.
Senator Kiehl clarified that he was asking if there would
be more individuals going to trial as a result of the
longer holds for competency restoration.
Ms. Kemp was not sure she could specifically answer Senator
Kiehl's question. She reminded that the court could not try
persons who were not competent to proceed because of due
process interest and a constitutional requirement to be
competent in order to be taken to trial. She thought the
proposed lengthening of time to 18 months could facilitate
the state's ability to restore people to competency to
stand trial. She noted that she was not involved in the
nuanced process for restoration. She thought the change
would provide an opportunity to explore methods such as
medication.
Senator Kiehl relayed that he asked the question since the
sponsor had pointed out that it was possible to hold
someone indefinitely that was not guilty by reason of
insanity, but that individual had been to trial and had an
oppositional case in front of a jury. He mentioned that
other provisions of the bill dealt with people that had not
been yet found guilty of anything. He thought if the
department believed the state could restore more people to
competency, it was a strong argument that resources should
go in that direction.
Ms. Kemp thought Senator Kiehl had made an astute point.
She noted that current case law required that in order to
restore an individual after the first 90 days, it would
require the trial court to make a determination in
conjunction with medical providers that there was a
substantial likelihood the person would be restored. She
mentioned due process. She mentioned greater lengths of
time and the civil division's prerogative. She thought the
civil division could speak to its own constitutional
analysis as it related to five-year commitment periods, but
relayed that the criminal division believed it was
constitutionally permissible to hold a person for that
length of the time for the purposes of restoration.
Co-Chair Olson asked about the department's stance on the
bill.
Ms. Kemp stated that the department was neutral on the
bill.
Co-Chair Olson thanked Ms. Kemp for her testimony.
Co-Chair Olson noted that there were four fiscal notes to
consider for the bill.
3:11:49 PM
DAYNA MACKEY, BUDGET ANALYST, DEPARTMENT OF LAW, addressed
a new fiscal impact note for the Department of Law, OMB
Component 2202. The note showed a total of $478,800 for FY
24. She noted that the fiscal note proposed three full-time
positions.
Ms. Mackey detailed from the analysis on page 2 of the
fiscal note:
Personal Services: $377.8 per year for one partially
exempt Attorney 5 (range 25), one Law Office Assistant
2 (range 13), and one Paralegal 1 (range 14)
Travel: $3.0 in FY2024 for new employee to attend
training, and $8.0 for contested hearings
Services: $75.0 for statewide and department allocated
core services costs
Commodities: $15.0 in FY2024 only for setup costs for
new employees
Senator Merrick thought that the state was having a hard
time recruiting and retaining attorneys, and wondered if
the state would be able to hire for the positions listed on
the fiscal note.
Ms. Kemp thought the department was doing a good job
filling existing positions. She offered the caveat that she
could not say all the positions were currently filled, but
the department was engaged in hiring. She noted there was
an uptick in hiring that had coincided with graduations.
She hoped the positions could be filled.
Co-Chair Olson asked about the responsibilities of the
attorney hired at rate 25 as specified in the fiscal note.
Ms. Kemp explained that the department would not
necessarily hire an attorney 5. She wanted the position
that would assist in the role of eliminating human error.
She shared a concern about attorneys having the experience
to file the petitions without risk of human error. She
noted that there was potential for hiring an attorney 3 or
attorney 4.
Co-Chair Olson thought Ms. Kemp had voiced a valid
consideration.
3:16:52 PM
MATT DAVIDSON, SPECIAL ASSISTANT TO THE COMMISSIONER,
DEPARTMENT OF FAMILY AND COMMUNITY SERVICES, addressed a
new fiscal note from the Department of Family and Community
Services (DFCS), OMB Component 3311, for inpatient mental
health at the Alaska Psychiatric Institute (API). He noted
that the majority of the fiscal note was included in the FY
24 budget request of $800,000 to stand up a community-based
restoration program and a jail-based restoration program to
increase capacity to provide restoration services. He noted
that API was currently full. There were 10 restoration beds
out of 80 total beds. The administration was pursuing two
restoration programs for lower-level offenders.
Mr. Davidson noted that the fiscal note included a request
for an update of a 2018 forensic restoration study. With
the bill proposing the double restoration time frames, the
department felt it needed to improve the study of how to
move forward with forensic restoration in a timely way.
Additionally, the department was looking at a modest
expansion of the jail-based restoration program that
proposed the hire of two new positions over two years.
Senator Kiehl asked if Mr. Davidson could discuss capacity
and the expectation of whether the additional restoration
programs included in the governor's budget would meet the
needs if the bill passed that doubled hold times for
restoration.
Mr. Davidson thought the department was keenly aware of the
delays in restoration services. He noted that the plan of
doing jail-based and community-based restoration programs
was to lower the backlog. He estimated that there was a
backlog of 30 defendants awaiting restoration services, and
a delay of up to 150 days. The expansion into 2 years would
give more time for the most serious defendants to receive
services. He shared a concern that there could be further
delays in some cases, while others would be addressed.
3:20:43 PM
Senator Kiehl expressed concern about potential growth of
the waitlist. He pondered whether the budget request was
sufficient.
Senator Kiehl asked about the notification element of the
fiscal note from DFCS. He noted that DFCS would need to
develop better notification, but thought it was not
included in the fiscal note. He asked if the department had
an estimate of what was needed to do the notification.
Mr. Davidson relayed that the new notification requirements
that had been in the earlier version of the bill had been
removed in the Senate Judiciary Committee. The most recent
fiscal notes reflected that the requirement had moved to
the Department of Law, because of its robust victim
notification program. He noted that there would be no cost
to DFCS for the notifications.
Co-Chair Olson considered that there were four new people
proposed to be hired in FY 24 and FY 25. He asked if the
fiscal note reflected the hire of eight new individuals, or
if the total was for the same four people.
Mr. Davidson relayed that LFD had asked the department to
display the information in the way shown on the fiscal
note. He continued that in FY 24, the department planned to
hire five new positions, and the following year the
positions would still be in effect, with one new position
in FY 26 and one new position in FY 28. The note showed a
total of 7 new positions.
Co-Chair Olson asked if the fiscal note was for one-time
funding.
Mr. Davidson relayed that the one-time funding was for the
additional forensic study, with the rest expected to be
ongoing. He thought refreshing the forensic study would
help inform how to meet the forensic and civil needs in the
state.
3:24:05 PM
SAMANTHA CHEROT, DIRECTOR, ALASKA PUBLIC DEFENDER AGENCY,
spoke to FN 4 from the Department of Law. The note showed a
total of $464.5 thousand designated for each year,
primarily consisting of personal services funds for an
attorney 4 position and an attorney 5 position. The
attorney 4 position would be to help absorb the anticipated
increase in workload related to the bill, which would
handle commitment matters. The attorney 5 position would be
expected to be a more experienced attorney with expertise
in criminal law and civil commitment. The position would
also first supervise a unit of attorneys in Anchorage
handling the civil commitment matters. The position would
also serve as a subject matter expert for other areas of
the state. She thought the scope of changes proposed in the
bill made the supervisory position essential.
3:25:40 PM
JAMES STINSON, DIRECTOR, OFFICE OF PUBLIC ADVOCACY,
DEPARTMENT OF ADMINISTRATION, spoke to FN 5 from the
Department of Administration (DOA), OMB Component 43. He
thought the fiscal note was straightforward, with $357.6
thousand for two positions at the Office of Public Advocacy
(OPA). One position was an attorney 1 through 4 "flex"
position. The reasons were due to the need to for some
litigation and legal expertise as described by the Public
Defender Agency. He noted that OPA would have a much
smaller overall number of commitment cases. He discussed
public guardian positions, which would be involved in
discharge planning and housing for wards of the state. He
thoguht the fiscal note was sufficient for OPA.
Senator Kiehl observed that both the Public Defender Agency
and OPA both had a line in the fiscal notes about the civil
commitment of up to five years, and the bill's flipping of
the burden from the government (proving a person was
dangerous) to the individual (proving that a person was not
dangerous). He asked if the standards were well
established, or if a series of appellate cases were
expected to get the matter resolved.
Ms. Cherot agreed there would be an increase in workload
handling hearings representing individuals when there was a
petition to end the commitment period earlier than five
years. She did not know that the standard was clearly
delineated as written. She could foresee there could be
litigation and thought the burden would be placed on the
respondent.
3:28:58 PM
Co-Chair Olson OPENED public testimony.
3:29:14 PM
MARK REGAN, LEGAL DIRECTOR, DISABILITY LAW CENTER OF
ALASKA, addressed two aspects of the bill. He addressed the
five-year hold on the civil side and the resources the
state needed to devote to competency restoration. He
referenced people in jails awaiting competency restoration
that should be taking place at API. He asserted that what
had gone wrong in Ms. Harris' case was not a matter of the
time frame, but rather a problem of a petition for civil
commitment not being filed when the perpetrator was dropped
from the criminal system. He explained that once a person
got into API on the civil side, there was a practice of
applying repeated 180-day commitments.
Mr. Regan discussed the burden on victims, and explained
that once a person was civilly committed, it was not the
burden on the victim to continue the process. Instead, it
was a matter of the existing system (particularly at API).
He hoped that as the committee considered the positive
aspects of the bill, it would drop the five-year hold from
the bill. He mentioned the burden of proof and noted that
there was not a standard in the bill on whether the hold
should be 18 months, or a number of years. He thought the
standards of the length of commitment periods should be
addressed by the legislature rather than the courts.
Mr. Regan addressed the broken" competency restoration
system and referenced a forensic study completed in 2019.
The study had indicated that 10 beds at API was not enough,
and that often people were stuck in jail for 150 days or
longer awaiting competency restoration. He thought more
competency restoration spaces were needed in different
settings. He supported the updated study referenced in the
fiscal note for DFCS, which could identify a better way of
doing competency restoration.
3:34:21 PM
Co-Chair Olson asked if Mr. Regan was in favor of the bill.
Mr. Regan relayed that the Disability Law Center would not
object to parts of the bill that addressed extended
competency restoration, or provisions that addressed victim
notification. He thought there was a problem with the
proposed five-year hold, and thought the larger problem was
that more pressure would be put on the competency
restoration system without provided needed services. He
continued that the appropriations provided for people to do
the work at the psychologist end of the process but did not
provide for a facility to provide the services. He thought
it would be a shame if the legislature, in response to the
tragedy, made the system worse for competency restoration
services.
Co-Chair Olson thought Mr. Regan was in favor of the bill
but with significant change.
Mr. Regan agreed that the center was opposed to the five-
year hold but was very much in favor of increased
competency restoration services.
3:36:20 PM
Co-Chair Olson CLOSED public testimony.
Co-Chair Olson asked the sponsor if he wanted to offer
comments on the testimony.
Senator Claman referenced questions by Senator Kiehl
regarding the standard for a person that was in a
commitment of up to five-years and who sought to be
released. He thought it was a challenge that to enter the
five-year commitment the court would have to make findings
about the person's dangerousness to self or others. He
continued that the court having already made a decision to
hold them for that period, it would not make sense for a
person to annually file a petition for restoration with no
evidence, after which the department would have to hold
another hearing and present the same evidence. He expected
that the Court System would apply the structure of the bill
as to how the hearings were structured, but the respondent
would have to present evidence.
Representative Claman referenced John Hinkley Jr., who had
attempted to assassinate former President Rondald Regan in
1981. He recounted that Mr. Hinkley Jr. was found not
guilty for reasons of insanity, after which he went through
over 40 years of efforts with petitions to the court to
reduce his level of supervision and custody. He pointed out
that the burden of proof was always on Mr. Hinkley to show
changed circumstances, who had worked with a psychiatric
hospital and was released from custody after 42 years. He
thought there were case examples that the court could look
into.
Co-Chair Olson referenced concern about competency
restoration and asked if the sponsor wanted to comment.
Representative Claman pondered that many people that were
currently classified as incompetent had been through the
system previously and were known to likely remain
incompetent. He suggested that the state could spend a lot
of resources to try and restore competency, but there was a
low likelihood of success. He thought the question was how
to make smart decisions about who to invest the restoration
process in when there was evidence that some people could
not be restored. He mentioned outpatient restoration
services as proposed in the bill, available to those who
were able to safely do so. He thought the Department of Law
had indicated there were 178 people in 2022 that had been
subject to competency restoration proceedings, and the
significant majority of the people would not fit the felony
against a person category.
Co-Chair Olson set the bill aside.
SB 53 was HEARD and HELD in committee for further
consideration.
Co-Chair Olson discussed the agenda for the following day.