Legislature(1995 - 1996)
04/10/1996 01:30 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 321 CRIM DEFENDANT INCOMPETENT TO STAND TRIAL
CHAIRMAN TAYLOR announced SB 321 was introduced as the result of an
incident that occurred in his district, and a more recent incident
that occurred in Anchorage. SB 321 provides for the commitment of
mentally incompetent defendants.
JOE AMBROSE, Chief of Staff to Senator Taylor, explained SB 321 was
introduced to close a loophole in existing law that prevents the
civil commitment of those ruled mentally incompetent to stand trial
on criminal charges but still pose a danger to others. Under
current law, the defendant in a criminal case can be committed for
up to two-90 day periods if found incompetent to stand trial. If,
at that point, the defendant is still incompetent, and is unlikely
to become competent, he/she must be released from the criminal
justice system. Commitment is then governed by the civil courts.
The problem SB 321 is intended to correct is that some incompetent
defendants cannot be picked up by the civil commitment procedures
because while they may be mentally incompetent for criminal
procedures, they are not mentally ill, as defined under laws
governing civil procedures. Mental incompetency is determined
under the law governing criminal procedures, and is based on a
mental disease or defect. This is a much broader category than
mental illness, as defined under the laws governing civil
procedures. SB 321 changes the definition of mental illness, as it
applies to civil commitments, so that incompetent criminal
defendants, who pose a risk to others, can be civilly committed.
This change would only apply to those who have already had due
process protections under the criminal justice system. The
Department of Law's fiscal note estimates this bill would apply to
one or two cases per year.
Number 055
With the committee's permission, an unidentified speaker, referred
to as "Jeanne," testified via teleconference.
JEANNE recounted an incident in which her daughter was sexually
molested at a church event by a severely mentally retarded boy with
violent tendencies. This incident was the fourth substantiated
case of molestation by the boy. The boy's family was aware of the
incidences yet continued to allow him to attend the church events
for children. The victim's family reported the incident to the
Anchorage Police Department and contacted the other three families
whose children had been molested by the boy.
CHAIRMAN TAYLOR asked if the police report resulted in a
prosecution and the defendant was found to be incompetent due to
severe mental retardation.
JEANNE responded that she tried to get a restraining order on the
boy but could not because he is not a family member. Police
officers talked to the boy and his family and the boy spent two
weeks in jail for vandalism and four charges of abuse of a minor
child but the charges were dismissed because he is mentally
retarded. The Constitution prohibits incarceration of mentally
retarded people as it is a violation of their Sixth Amendment
rights. API was not an alternative because the boy is not mentally
ill.
CHAIRMAN TAYLOR stated this person votes in every election. JEANNE
verified that the boy does vote, his parents discuss the issues
with him. He also buys alcohol, and has held a job with the
Anchorage School District since the mid to late 1980s.
CHAIRMAN TAYLOR clarified the boy held the job since 1989 but was
dismissed several weeks ago after the Anchorage School District was
informed of the substantiated cases.
Number 191
LAURIE OTTO, Deputy Attorney General for the Department of Law,
noted Chairman Taylor has identified a gap in the criminal justice
system that needs to be fixed. She was informed on Monday that a
first degree murderer is about to be released based on a similar
gap in the statute. Although she acknowledged the problem, she did
not believe SB 321 will solve the problem for the following reason.
Over the past 30 years the system of institutionalization has been
shaped by statutes, regulations, the Constitution, case law, and by
the annual budgets of the agencies involved. There are two basic
kinds of institutionalization: civil and criminal. There is some
overlap between those two systems for people who commit crimes:
legally insane people who are the responsibility of the Department
of Health and Social Services; mentally ill people who are found
guilty and are the responsibility of the Department of Corrections;
and people who are found to be incompetent to stand trial. The
last group is the subject of SB 321 and the source of the problem
that exists in the criminal justice system. These cases are rare:
of the 4,000 felony cases that get reviewed by prosecutors' offices
every year, at most there is only a handful that raise legitimate
competency issues - only three have been identified in the past
three years. Most people found to be incompetent can become
competent after a short period of time with medication or with
training. The small number of cases in which the defendant is
found incompetent to stand trial is often not only because of
mental retardation but also brain damage. The murderer to be
released also has Alzheimer's Disease. SB 321 would make these
people subject to civil commitment.
To civilly commit a person, the state must prove to a jury with
clear and convincing evidence the person is mentally ill, and be
either a danger to themselves or others, or be gravely disabled.
The phrase "likely to cause serious harm to self or others" is
defined in AS 47.30.915 (10)(b) as "poses a substantial risk of
harm to others as manifested by recent behavior causing,
attempting, or threatening harm, and is likely in the near future
to cause physical injury, physical abuse, or substantial property
damage to another person." By the time an incompetent defendant
reaches the point of civil commitment, one year will most likely
have lapsed. The defendant usually will have spent that time at
API or another institutional setting. The civil commitment
proceedings must be held at intervals of 30, 90 and every 180 days
after that. In such situations the Department of Law has found it
impossible to prove that a person is likely to cause serious harm
to others based on recent behavior.
Even if the person can be committed, other statutes allow the
release of the person. AS 47.36.055 sets out the state's policy
that mentally ill persons be held in the least restrictive setting
possible which is often the community setting. AS 47.37.080
requires that a mentally committed person be released if the person
in charge of the facility believes that he or she is no longer
dangerous. This occurs without court action or notice to law
enforcement. To comprehensively address the issue of incompetency,
there would have to be many statutes and state policies amended.
Those changes would also impact people other than those that need
to be targeted.
The Criminal Division of the Department of Law believes the problem
is that the term "mentally incompetent" is not defined in statute.
There are doctors who interpret it very narrowly and those rulings
are upheld on appeal. There are doctors who apply it more
expansively. DOL believes, for constitutional purposes, if a
person is capable of voting, working, and has a driver's license,
that person is competent to stand trial. If a doctor believes
differently, based on no standards, the DOL has no effective means
of persuading the court differently. DOL recommends the statute be
amended with a tight, clear definition of mental incompetence. DOL
is researching how other states have dealt with this problem. The
problem with SB 321 is that to give people due process, jury trials
must occur over short periods of time, and the defendant must be
proved to be dangerous. That approach is both time consuming and
expensive. DOL is in the process of drafting a new definition.
Number 331
DERRILL JOHNSON, Program Administrator for Developmental
Disabilities, stated DHSS believes SB 321 is well intended, but
would prefer a long term fix for the problem. Individuals should
suffer the consequences of their actions. In the developmental
disability community, there is a service network that can provide
supports for clients and their families. The better way to tighten
the loophole is to find a better way to evaluate who is competent
to stand trial. He offered to provide committee members with
information on the types of support services DHSS offers to
communities and families.
CHAIRMAN TAYLOR commented he did not intend for this bill to result
in a criminal sanction for a person who is not competent to be
embroiled in that system, due to a finding under the Sixth
Amendment. Instead he was hoping the DHSS would respond with a
proposal to accommodate this individual in a secure setting so that
the public could be assured that person will not be roaming the
community unsupervised. If he intended to put these people in a
penal institution, he would have redefined the definition of mental
illness in criminal law. He asked if the DHSS was requesting a
definition change that would lower the standard so that these
people could be tried criminally and incarcerated.
MR. JOHNSON replied the intent would be to place the people in an
alternative arrangement with solid community support. He noted in
this particular case, he will be meeting with the family in an
attempt to design a system using community support for their son.
This approach is based on DHSS' experience over the last five years
and has been successful.
CHAIRMAN TAYLOR stated the committee intends to move SB 321 out of
committee and have the next committee work on proposed amendments.
He asked DOL to submit the definition mentioned.
Number 380
SENATOR GREEN asked if DHSS can require a family to participate in
its programs before an incident occurs. She believed there should
be a level of responsibility placed on the guardian.
MR. JOHNSON replied DHSS does not have that authority because
developmentally disabled clients are served on a voluntary basis.
A guardian cannot force a client to participate either.
DAVID MALTMAN, Director of the Governor's Council on Disabilities
and Special Education commented most Council members are parents of
developmentally disabled individuals and are concerned for the
children and families who have been affected by this incident.
However, the sense of outrage must be tempered by the fact that
people with limited capacities, particularly people with
developmental disabilities, are no more dangerous to children than
anyone else. There is no evidence that men with mental retardation
commit sexual assaults at a higher rate than other men in the
general population, and are actually more likely to be victims of
such behavior. Existing programs deal with difficult clients, and
have done a fine job of supervision and monitoring. Had this
abuser been enrolled, it is unlikely this incident would have
occurred. There are waiting lists for these programs, however.
Committing people to API will not solve the problem. The Council
is very concerned about minimizing risks to the community. He
asked the committee to allow more time to look at what other states
are doing, and the services they provide.
Senator Ellis arrived at 2:40 p.m.
CHAIRMAN TAYLOR thanked Mr. Maltman and explained it was not his
intent to cast dispersions at developmentally disabled people. He
noted Senator Miller and he would like to work on this problem
further. He suggested Mr. Maltman contact the State of Idaho for
suggestions and information.
MR. MALTMAN added the State of Vermont has a statute that addresses
this problem for offenders with mental retardation which he would
provide to committee members.
Number 454
LYNN STIMLER, representing the ACLU, agreed with Ms. Otto's
testimony. She was concerned the bill will miss the offenders it
is intended to catch because the statute is premised on the
assumption that people can be confined if competency can or will be
restored. She believed that in the committee's rush to pass the
bill to the Senate Rules Committee, the bill may target people it
was not intended to include.
CHAIRMAN TAYLOR asked Ms. Stimler to provide input on the
definition to committee staff.
Number 479
RICHARD RAINEY, Executive Director of the Alaska Mental Health
Board, asked the committee to consider the fact that the bill could
create a population new to the mental health system that would
require services that are not available. Those services may come
at the expense of existing services. The system that currently
exists, and is envisioned for the future, is the result of a long
and sometimes tortuous planning process involving mental health
consumers, providers, and state agencies. API is a critical
element in that system. If the mission of API is to provide
tertiary care to mentally ill individuals who cannot be treated in
their communities, he is concerned this change will involve taking
resources from that program.
CHAIRMAN TAYLOR asked Mr. Rainey if he agreed that only one or two
people per year may fall into this category. MR. RAINEY replied
there is some concern that the population will end up being larger.
CHAIRMAN TAYLOR felt the individuals the bill is directed toward
are fairly functional, and that small modifications to existing
programs may be able to provide a higher level of security. MR.
RAINEY stated he would not be as concerned if those people are not
placed at API.
DOROTHY PEAVEY, the Executive Director for Mental Health Consumers
of Alaska, believes SB 321 would affect mentally ill people
indirectly. SB 321 was introduced as a hasty response to an
unfortunate situation. Persons with severe mental retardation with
criminal tendencies need constant supervision. Such supervision
can be provided in a psychiatric hospital or in long-term
residential care, however both options are expensive and finite in
availability. Community placement is a viable solution and several
agencies have experience serving clients with such histories. She
believed this population and guardians should be held responsible
for criminal behavior. She urged the committee to find a solution
that does not include civil commitment and utilization of resources
that are already overcommitted.
SENATOR MILLER moved SB 321 out of committee with individual
recommendations. Senator Adams objected because he believed the
Senate Judiciary Committee should at least define "mental
incompetence" and review the fiscal note from API.
The motion carried with Senators Taylor, Green and Miller voting
"yea," and Senators Miller and Ellis voting "nay."
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