Legislature(2023 - 2024)BUTROVICH 205
03/10/2023 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| 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 |
SB 53-FIVE-YEAR INVOLUNTARY COMMITMENTS
[CSSB 53(HSS), work order 33-LS0172/S, was before the
committee.]
1:33:07 PM
CHAIR CLAMAN announced the consideration of SENATE BILL NO. 53
"An Act relating to involuntary civil commitments."
CHAIR CLAMAN stated that he was the sponsor of SB 53 and he was
turning the gavel over to Vice-Chair Kiehl for the duration of
the bill presentation.
1:33:25 PM
VICE-CHAIR KIEHL asked the sponsor to begin his remarks.
1:33:43 PM
SENATOR MATT CLAMAN, District H, speaking as sponsor of SB 53,
introduced the legislation speaking to the following prepared
testimony.
Our office began working on Senate Bill 53 at the
request of other legislators in response to the tragic
experience of a constituent in our district. Angela
Harris is here today to share her story with the
committee at the conclusion of our presentation and
sectional analysis.
Angela 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 was released by the court after he
was found incompetent to stand trial. We believe this
individual should not have been released to the
community. A petition for an involuntary commitment
should have been filed based on his prior attacks and
his psychiatric condition that made him a danger to
the community.
Senate Bill 53 deals with Title 12, which is related
to criminal charges, and Title 47, which is related to
civil proceedings.
The determination of whether an individual is
competent or incompetent to stand trial, in addition
to restoration to competency if deemed incompetent, is
a process set out in the Code of Criminal Procedure in
Title 12. The standard for determining an individual's
competency to stand trial is found both in statute and
in a long history of case law. A simplified
explanation of competency, is whether the individual
understands the charges against them, can assist their
lawyer, and is therefore able to plead guilty or not
guilty to the charges.
Competency is not a defense and is unrelated to the
mental state of the individual at the time of the
crime. In order to protect constitutional due process
rights of individuals in our legal system, a person
who is incompetent to stand trial cannot be convicted
of a crime. This rule is because a person has the
right to understand the crime with which they are
charged and the consequences of the crime they've been
charged with.
A separate process is used for involuntary commitment
in Title 47 Welfare, Social Services, and
Institutions. The standard for involuntary commitment
is whether an individual, as a result of their mental
illness, is a danger to themselves or others.
Senate Bill 53 creates a duty for the Department of
Law to file a petition seeking involuntary commitment
when: a defendant is found incompetent to stand trial
at the expiration of the final period for competency
restoration, the defendant is charged with a felony
offense against the person or arson, and they present
a danger to themselves or others.
1:36:33 PM
In our conversations with Angela, we grew to
understand the direct impact current statute has had
on her ability to find the assurance she needs moving
forward. The legislation before you creates an
involuntary hold of up to five years for individuals
who meet the following qualifications:
They have been found incompetent to stand trial on a
felony offense against the person or arson
They have been previously subject to involuntary
commitment orders for 30, 90, and 180-day holds
They have a history of felony offenses against the
person or arson
And they present a danger to themselves or others
The five year hold for individuals who meet the
standards (incompetency finding on a felony offense
against the person or arson, previously subject to 30,
90, 180-day holds, and present a danger to themselves
or others) reflects the reality that there are a small
number of individuals who, as a result of their mental
illness, present a danger and are not suitable for
community-based treatment options. Senate Bill 53
proposes a hold of up to five years for the limited
number of individuals who need long term treatment.
The longer commitment period will have fewer
disruptions for mandatory court proceedings and is a
shorter period than the indefinite period of
involuntary commitment that applies when a person is
found not guilty by reason of insanity under AS
12.47.090.
As a matter of protecting the due process rights of
individuals in the State of Alaska's care, Senate Bill
53 includes 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 is no longer a risk to themselves or
others.
1:38:25 PM
The legislation adds notification for victims of: the
time and place of the civil commitment hearing; the
length of time for which the respondent is committed;
and when the respondent is discharged from commitment.
SB 53 creates a five-year commitment option.
Persistent court hearings are stressful for
individuals suffering from severe psychiatric
illnesses. A commitment option of up to five years
will allow for longer term treatment plans and better
coordination of care.
Senate Bill 53 also reduces the number of
psychiatrists and psychologists required for
evaluation under the insanity defense from two to one;
adds a requirement that attorneys must file a written
motion for a competency evaluation; increases the time
for competency restoration from one to two years in
serious cases; and provides that the court can release
defendants on bail for competency examination,
evaluation, and treatment.
1:39:39 PM
EMMA POTTER, Staff, Senator Claman, Alaska State Legislature,
Juneau, Alaska, presented the sectional analysis for SB 53 on
behalf of the sponsor.
Section 1
AS 12.47.070. Psychiatric examination
Amends subsection (a) of AS 12.47.070 to reduce the
number of qualified psychiatrists or psychologists
from two to one for evaluation under the affirmative
defense of insanity. And removes the requirement that
the forensic psychologist is certified by the American
Board of Forensic Psychology.
Section 2
AS 12.47.100. Incompetency to proceed
Amends subsection (b) of AS 12.47.100 by adding the
requirement that the motion for judicial determination
of competency must be a written motion.
Section 3
AS 12.47.100. Incompetency to proceed
Adds new subsections (i), and (j) to AS 12.47.100.
Subsection (i) states that the court may release a
defendant on bail to be examined at an outpatient
clinic or other facility under AS 12.30. Subsection
(j) 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.
Section 4
AS 12.47.110. Commitment on finding of incompetency
Amends subsection (b) of AS 12.47.110 to increase the
maximum total time for competency restoration hold
from one year to two years when the defendant is
charged with a crime involving force against a person
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 new subsections (f), (g), and (h) to AS
12.47.110. Subsection (f) states that the court may
release a defendant on bail for further evaluation and
treatment at an outpatient clinic or other facility
under AS 12.30. Subsection (g) requires that the
prosecutor shall provide the court's findings to the
division of the Department of Law that has
responsibility for civil cases within 24 hours of the
court's ruling and adds the requirement that the
Department of Law must file the petition for
involuntary commitment within 72 hours of the
dismissal of charges. And subsection (h) states that
when the court dismisses the charges, the defendant
may not be discharged until 72 hours after the court
dismisses the charges.
Section 6
AS 47.30.725. Rights; notification
Adds new subsections (g) and (h) to AS 47.30.725,
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; of 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.
1:42:22 PM
Section 7
AS 47.30.771. Additional five-year commitment
Adds a new section creating an additional involuntary
commitment of up to five years to AS 47.30.771. 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 felony offenses
against a person under AS 11.41 or 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. It 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.
Section 8
AS 47.30.780. Early discharge
Amends subsection (a) of AS 47.30.780 to include
reference to new subsection (c) of this section.
Section 9
AS 47.30.780. Early discharge
Adds new subsections (c), (d), and (e) to AS 47.30.780
which add the requirement 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 10
AS 47.30.805. Computation, extension, and expiration
of periods of time
Amends section (a) of AS 47.30.805 to include five-
year commitments. It states that the five-year
commitment period expires at the end of five years
after the 180-day period of treatment.
Section 11
Indirect Court Rule Amendments
Conforms court rule with Section 2 of the legislation,
which requires attorneys to file a motion that is
written in their requests for competency evaluation.
Section 12
Conditional Effect
Adds conditional effect language based on the indirect
court rule change.
1:44:40 PM
VICE-CHAIR KIEHL asked committee members whether they had
questions or concerns.
SENATOR KAUFMAN noted the concerns expressed in the previous
committee were about the legislation inadvertently creating a
trap for individuals unable to access due process. He wondered
if the legislation offered the optimal solution. He asked if the
bill provides mechanisms for individuals who find themselves
inappropriately incarcerated under the new statute.
SENATOR CLAMAN spoke to the Title 47 aspects, which involve an
individual whose criminal charges were dismissed, leaving them
held with a civil commitment. He affirmed that the legislation
contains substantial and adequate due process protections. One
such protection involves a mandatory hearing before enacting any
length of hold. The hearing must display satisfactory evidence
that the individual is a danger to themselves or others and
should be committed involuntarily to the department's custody.
The same standard applies to each subsequent hearing. Hearings
occur at intervals of 60 days, 90 days, 180 days, and
potentially 5 years. The standard will be applied each time, and
if a respondent disagreed with the finding, they could appeal
the decision at each interval to the Alaska Supreme Court.
CHAIR CLAMAN continued to explain that a person appealing the
decision has the right to file an annual petition to be
released. The petition requires the court to examine the
standards existing for the initial commitment. He added that
care providers must reach a conclusion that the person is
eligible for community treatment; that decision is made on an
ongoing basis.
1:48:18 PM
SENATOR KAUFMAN said he appreciated the information about the
process. He spoke about the reduction in the required number of
opinions needed and the removal of certification requirement. He
wondered if the bill lowered the bar to remove certifications
and lessen the number of professional opinions.
SENATOR CLAMAN responded that changing the number of experts is
a portion in Title 12, the code of criminal procedure. The code
is specific to a situation where an individual raises the
defense of insanity. He highlighted Title 47 provisions relating
to involuntary commitment. The bill retains the number and
qualifications of the experts involved in the evaluation. He
explained that the change occurs in Title 12 when a defendant
raises the defense of insanity. When the defense of insanity is
raised, the criminal code requires the court to appoint two
different credentialed professionals to independently evaluate
the insanity defense. He noted that a defendant who raises the
defense of insanity does not rely on the court appointed expert.
The defendant typically hires their own expert. The two-expert
scenario is redundant because the opinions are unlikely to be
substantially different and the parties are more likely to
retain their own experts.
1:51:56 PM
SENATOR CLAMAN remarked that the changes in the number and
credentials of experts are not applicable to involuntary
commitment. The provisions changing the number of expert
opinions required from two to one are narrowly focused on the
rare occasions when a person raises the insanity defense. He
shared a personal story about a case where the insanity defense
was raised. In that case, the judge appointed one doctor to
evaluate the defendant, but the requirement specified two
doctors. He requested that the judge appoint a second doctor,
but in trial he relied on the expert he retained versus the
court appointed physicians.
SENATOR CLAMAN discussed the change of qualifications, which Mr.
John Skidmore in the prosecutor's office suggested. Alaska does
not have properly certified psychologists, which forces the
court to seek an out-of-state opinion. He held the perspective
that the change in necessary qualifications encourages the state
to retain a psychiatrist or psychologist with sufficient
expertise to qualify under the court standards. He expressed
confidence that Alaskan judges will seek qualified and
experienced professionals.
1:53:11 PM
SENATOR TOBIN asked about the requirement for a written motion
in Section 2.
SENATOR CLAMAN replied that Mr. Skidmore suggested that a
written motion requires additional intention when pleading
insanity. The written requirement also creates a clearer record.
He viewed the change as a small procedural requirement.
1:54:18 PM
VICE-CHAIR KIEHL asked the sponsor to provide additional context
for the committee. He saw three opportunities for a judge to
ascertain mental ability. The three opportunities are competency
to stand trial, guilt by reason of insanity, and civil
commitment for mental status.
SENATOR CLAMAN responded with an example cited in the Senate
Health and Social Services Standing Committee involving the
historical case of John Hinckley. He reminded the committee that
John Hinckley attempted to assassinate President Ronald Reagan
and shot one of the cabinet secretaries, James Brady. John
Hinkley was charged criminally, and the legal counsel raised the
defense of insanity. He expounded that the difference between an
insanity and incompetency defense is whether the defendant
understands the charges against them and can assist their lawyer
in making an informed decision about the plea.
SENATOR CLAMAN explained that when an attorney is confronted
with an individual who is unable to understand communication,
the lawyer could raise incompetency. Raising incompetency means
that the defendant's mental status is such that they cannot
provide meaningful assistance or be held responsible for their
behavior in the context of the criminal law. John Hinkley did
not raise incompetence because he was articulate enough to
communicate with the lawyers about his defense. Raising insanity
indicates that the person was insane at the time of the crime,
meaning that the case would go to trial with a competent
defendant. He furthered that there were two sides to a defense
of insanity, one portion where a person is guilty and mentally
ill and another portion where a person is not guilty by reason
of insanity.
SENATOR CLAMAN furthered that Alaska made changes in 1980 after
a case in Anchorage where an individual on release from the
Alaska Psychiatric Institute (API) killed two people in Russian
Jack Springs Park and was found not guilty by reason of
insanity. The case prompted the Alaska State Legislature to
revise criminal statutes. Insanity is a defense at trial for a
person who is competent. If a successful insanity defense is
raised, the charges are over because they are not guilty. The
case is sent to API for an indefinite hold. He clarified that
today's statute states that an individual can be held
indefinitely versus the proposed five-year hold in SB 53. He
noted that the involuntary commitment is applicable when a
person who is incompetent to stand trial following efforts to
restore the person to competency is subject to involuntary
commitment under Title 47.
VICE-CHAIR KIEHL said he appreciated the additional context. He
posed the quandary of civil liberties and public protection. He
examined the idea of a person who is not guilty by reason of
insanity as compared to a person incompetent to stand trial. He
understood that SB 53 addresses a person incompetent to stand
trial and the legislature must determine the element of
protection of the public.
2:00:20 PM
SENATOR CLAMAN agreed that the bill makes some changes to the
competency restoration process. He noted that currently the
maximum period a person could be held for competency restoration
is one year. For people that meet a higher standard of danger,
SB 53 would have the court hold the person for up to two years
in an effort to restore them to competency. The involuntary
commitment proceedings would apply to an individual found
incompetent and the efforts to restore them to competency have
been unsuccessful.
2:01:08 PM
VICE-CHAIR KIEHL asked about the five-year hold proposed in the
bill. The five-year hold is currently unavailable in civil
commitments but is applicable to a person with a prior history
of harming others at a felony level. He stated that Senator
Claman nodded in response to his question. He noted that the
potential to hold an individual for an extended period is
available in situations where risk of harm to self or others is
determined. He asked why the five-year hold was applicable for
risk of harm to self. He wondered why the language did not
specify risk of harm to others.
SENATOR CLAMAN responded that the analysis is structured in two
parts. He noted that Alaska statutes lacked criminal offenses
for attempting suicide. The five-year commitment range applies
to people with a history of felony offenses against a person for
arson. He furthered that a person with a history of efforts to
harm themselves would never meet the qualifications to be
subject to the five-year hold. He explained that the bill refers
to harm to self or others because of the standard applied by
doctors when evaluating an individual for involuntary
commitment. The legislation attempts to help the court
understand the standard applied.
2:04:43 PM
ANGELA HARRIS, representing self, Anchorage, Alaska, provided
invited testimony in favor of SB 53. She shared the story that
prompted the drafting of the legislation.
For the record, my name is Angela Harris. I was
stabbed while returning borrowed items at the Loussac
Library on Sunday afternoon, February 13, 2022.
I have met with most of you and provided testimony to
you in the previous committee. I want to provide the
details of my experience for the record and respond to
some parts of the conversations I have been having
with you in the Capitol this week.
• My assailant, Corey Leif Ahkivgak, drove a dirty
Leatherman knife into my spine between L2 and L3,
penetrating my spinal cord.
• Mr. Ahkivgak was located and arrested by APD later
that afternoon, while I was awaiting emergency surgery
to remove the knife and blood clots that damaged a
nerve bundle in my spinal cord.
• The stabbing left me paralyzed from the waist down
and with decreased strength and sensation in my upper
extremities.
• I was unable to live in my home until we made
modifications in our house to become handicapped-
accessible and safe for me to navigate.
• My parents flew in from the Lower 48 to live in our
home with my two youngest children for 8 months.?My
significant other had to quit his slope job to be my
primary caretaker.
• I am now on a long road to recovery. I attended
physical therapy and occupational therapy 5 days a
week for approximately 9 months. I see a counselor no
less than twice a week to help work through the PTSD
of my assault.
• Mr. Ahkivgak has a history of assaulting women. In
2018, he violently attacked his mother with a frying
pan.
• He attacked two other women on December 10, 2021.
• He was declared incompetent and not restorable, and
he was released back to the public on January 6th,
2022.
• On February 10th, 2022, he was arrested for
trespassing at Captain Cook Hotel.
• He then stabbed me on February 13th, 2022, was
declared incompetent, and may be released back into
the public after his next competency hearing in a few
months.
• We need improvements to the State's mental health
system, particularly regarding violent offenders, and
we need to close the loophole in current laws that
allow people to commit violent crimes only to be
released back into our community. It should not be
left up to the victims to pursue a civil commitment if
their assailant is being released due to incompetence.
Senate Bill 53 closes this loophole for dangerous
individuals like Mr. Ahkivgak.
Senate Bill 53 is written to target the narrow group
of individuals like the man who assaulted me. It is my
belief that jail is an inappropriate placement for Mr.
Ahkivgak, given his serious mental illness. But as the
survivor of his assault, I also believe that community
placement is an inappropriate option.
I have heard the concerns about protecting civil
liberties in this legislation, and I share your
concerns. We must prioritize the rights of victims to
live safely in our communities while allowing
individuals who need long term care to receive it.
And we need to give victims more peace. As I work
toward healing, it is difficult for me to live with
the reality that my assailant could be released at the
next 180-day hearing.
I attended several block hearings and was appalled at
how often individuals were released from custody
simply because the "wait list" for restitution was too
long and violated the offender's civil liberties.
I am a firm believer that everything happens for
a reason, and I know Jesus would not have put me
in this position if I could not handle it.
With that being said, I intend to share my story
while I continue to attend occupational and
physical therapy appointments to physically heal
with hopes of reducing the amount of senseless,
violent assaults.
If I were not on active duty with the US Coast
Guard at the time of my assault, I would have
very limited resources and cannot imagine the
ruins other victims have experienced. As the
perpetrator, Mr. Ahkivgak has more rights,
options, and resources at his disposal than I do
as his victim.
My assault is an example of why we need to build
out mental health facilities and our state laws
to get violent offenders the help they need and
keep communities safe.
API serves our entire state, yet they are
operating on a very limited capacity with a
maximum of 80 beds with only 10 designated for
restoration.?I've learned that the number of beds
actually available have been far less than that
at times, and API has had periods operating at a
very decreased capacity.
We must address the common element of inadequate
mental health services for violent offenders and
their victims.
I just shared with you my experience and
navigation through this process; I share this
with you and all fellow Alaskans to emphasize
that we must close the loopholes that allow
violent offenders to victimize more innocent
Alaskans.
The moment an offender commits a violent act against a
fellow citizen then their rights should be weighed
against the victim's rights to safety.
I understand raising concerns, but I ask that you
please answer your concerns with a solution to the
problem, rather than empty words.
The bill presented here today is the opportunity for
you, in your elected positions, make?changes that are
beneficial for all Alaskans, whether victim or
offender. This bill is a good starting point, and I
encourage each of you to learn more about the issues
and find solutions to prevent what happened to me from
happening to others.
2:10:40 PM
VICE-CHAIR KIEHL returned the gavel to Chair Claman.
2:11:31 PM
CHAIR CLAMAN opened public testimony on SB 53.
2:11:56 PM
KATHLEEN WEDEMEYER, Deputy Director, Citizens Commission on
Human Rights, Seattle, Washington, testified in opposition to SB
53. She stressed that the crime Ms. Harris endured was
horrendous and she understood the legal response attempting to
protect people in similar situations. She questioned the reason
that the legislation included individuals who had committed no
crime but were determined to be mentally ill and a danger to
themselves and others. She asked why a person was included in
the five-year commitment period if they had not committed a
felony. She stated that people who attempted suicide would be
subject to this. She encouraged further clarification of the
intention.
MS. WEDEMEYER stated that the national standard for long-term
commitment is six months, which provides individuals with the
opportunity to plead their case before a judge. Under SB 53, a
person can request early release once per year. She stated that
the balance of power for mental patients was uneven. She
stressed additional research and fact finding before swelling
overfilled facilities. She spoke to the idea of medical
appropriateness based on diagnosis where a six month period is
better suited than the proposed five years. She opined that
legal challenges would follow if the bill were to become law.
2:14:29 PM
CHAIR CLAMAN closed public testimony on SB 53 and held the bill
in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 53 version S 3.10.2023.PDF |
SJUD 3/10/2023 1:30:00 PM SJUD 3/29/2023 1:30:00 PM |
SB 53 |
| SB 53 Sponsor Statement version S 3.10.2023.pdf |
SJUD 3/10/2023 1:30:00 PM SJUD 3/29/2023 1:30:00 PM |
SB 53 |
| SB 53 Sectional Analysis version S 3.10.2023.pdf |
SJUD 3/10/2023 1:30:00 PM SJUD 3/29/2023 1:30:00 PM |
SB 53 |
| SB 53 Explanation of Changes version B to Version S 3.9.2023.pdf |
SHSS 3/9/2023 3:30:00 PM SJUD 3/10/2023 1:30:00 PM |
SB 53 |
| SB 53 Research - KTUU Article 2.15.2022.pdf |
SFIN 5/3/2023 9:00:00 AM SHSS 2/21/2023 3:30:00 PM SJUD 3/10/2023 1:30:00 PM SJUD 3/29/2023 1:30:00 PM |
SB 53 |
| SB 53 Supporting Document - Frequently Asked Questions 3.10.2023.pdf |
SFIN 5/3/2023 9:00:00 AM SJUD 3/10/2023 1:30:00 PM SJUD 3/29/2023 1:30:00 PM |
SB 53 |
| SB 53 Opposing Document - Letters Received as of 3.10.2023.pdf |
SJUD 3/10/2023 1:30:00 PM |