Legislature(1995 - 1996)

04/10/1996 01:30 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ 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           
 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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