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