HB 80-INCOMPETENCY; CIVIL COMMITMENT  [Contains discussion of SB 53.] 3:07:59 PM CHAIR PRAX announced that the only 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." CHAIR PRAX noted that this is the bill's second hearing and that a committee substitute (CS) has been prepared. 3:09:20 PM RILEY NYE, Staff, Representative Mike Prax, Alaska State Legislature, presented the proposed committee substitute (CS) for HB 80, labeled 33-LS0224\S, Marx/Dunmire, 4/25/23, (Version S). He explained that Version S was drafted by using SB 53, Version P, as the basis and then adding crimes to nine sections [and subsections]. He stated that the added crimes are: AS 11.41, all crimes against a person, including misdemeanors; AS 11.46.400-11.46.427, arson crimes, matching Senator Claman's bill; AS 11.61.140, cruelty to animals; and 11.61.190-11.61.210, misconduct involving weapons. He further stated that the sections in which the statutes are added within Senator Claman's bill, SB 53, Version P, are: Section 3(j), Section 4(b), Section 5(g), Section 6(a), Section 6(d), Section 8(g), Section 9(b)(2), Section 9(b)(3), and Section 11(c). 3:11:12 PM REPRESENTATIVE ANDY JOSEPHSON, Alaska State Legislature, as prime sponsor of HB 80, spoke to the proposed CS, Version S. He explained that Version S pays homage to the Senate version, SB 53, by entirely embedding SB 53 into HB 80. The difference, he continued, is that Version S adds two additional felonies (out of over 100 felonies in the code) that he believes the Alaska Court System and later the Alaska Psychiatric Institute (API) need to look at and have somewhat less discretion. The court would still have discretion at day 90 after the charge, he added, but at a couple stage gates in the process the prosecutors shall, under Version S, file petitions for involuntary commitment which would begin with an evaluation for those crimes, although the timing is a bit different than in SB 53. He allowed that both SB 53 and Version S will impact resources, but offered his belief that in the category of assault in the fourth-degree special attention is needed if there are questions of competency because the act is so irrational. Representative Josephson said the reason for embedding this in the bill is the case of Corey Ahkivgak, who physically assaulted several victims over a period of years before stabbing another victim, Ms. Harris. He advocated that the system needs to look at the mentally ill person, the criminal defendant, when that person is presenting facts that they could escalate, and this is embedded in the proposed CS. 3:15:47 PM REPRESENTATIVE SADDLER inquired about the section of statute regarding assault in the fourth degree ("Assault 4"). REPRESENTATIVE JOSEPHSON replied that an Assault 4 is the most benign form of assault. If two people get into a fight who know one another and the behavior is criminal and uncivil but explainable based on the nature of the event or intoxication or the context, the issue of competency doesn't arise. There are three ways to commit the crime of assault in the fourth degree: 1) a person recklessly causes physical injury to another person, with physical injury defined as any amount of pain; 2) a person causes physical injury to another person by means of a dangerous instrument; and 3) by words or other conduct a person recklessly places another person in fear of physical injury. REPRESENTATIVE SADDLER inquired about the specific section of statute that lists assaults in the fourth degree. REPRESENTATIVE JOSEPHSON responded that it is AS 11.41.230. 1:43:25 PM CHAIR PRAX noted that Assault 4 is the lowest level of assault. He offered his understanding that [Version S] would not deal with all cases of assault 4, only those where there is an incompetence plea, and the case is dismissed because the defendant is found to be incompetent. REPRESENTATIVE JOSEPHSON confirmed that that is correct. He related that as written Version S would require that within the first 90 days following the event the court look at restoring the person if the facts suggest the act was so irrational that competency was at issue, but at day 90 the court begins to have discretion to say, "We're not going to do this anymore." He pointed out that misdemeanors are limited to a one-year sentence that is inviolable, it cannot be one year and a day, and there is an understanding that for public safety pivoting a civil system must start to be considered because if an incompetency cannot be restored then the case would be dismissed. So, he continued, [under the bill] the system would intervene at that stage by moving to a three-day evaluation upon a petition, and during that juncture the criminal case would remain pending, but the parties would know there would be an almost imminent dismissal of the case if the individual couldn't be restored with competency. There is no perfect way to be safe in society, he stressed, but the bill as written would give the victim a better chance of not having interaction, which is again imperfect because the standards must be looked at. He said the question would be how long would the courts try to restore Mr. Ahkivgak and if a civil commitment effort were made, how long would Mr. Ahkivgak be committed? He allowed that it may not be as long as required to keep the public safe and advised that this is going to remain imperfect but feels he is duty bound to try to do something. 1:43:38 PM REPRESENTATIVE JOSEPHSON further related that [the bill] adds the felonies of cruelty to animals and misconduct involving weapons. He explained that this is because committing a forgery is a felony but typically the person committing a forgery wouldn't be incompetent in doing that and while forgery could damage someone's property interests and be disruptive, no one is going to die from a forgery. So, he continued, the bill tries to capture the crimes that matter and that need a longer sustained look on the issue of restoration to competency. He noted that terroristic threatening making phone calls that frighten communities is the kind of thing that an incompetent person might do and suggested that the committee could look at a crime like that. There is criminal mischief, he added. He cited a shooting at the [Trans-Alaska] pipeline that occurred on the haul road and said he thinks that was done by someone who was competent, so that would probably be criminal mischief in the first degree, which speaks specifically about oil property. He stated he can offer recommendations about other crimes besides the two crimes he has offered the committee. 3:23:52 PM REPRESENTATIVE FIELDS inquired about how many of Mr. Ahkivgak's incidents were misdemeanors. REPRESENTATIVE JOSEPHSON answered that all were misdemeanors. 1:43:49 PM CHAIR PRAX asked whether it is exceptional that someone would commit a significant number of misdemeanor cases that lead to more serious offenses. REPRESENTATIVE JOSEPHSON replied that when he was a prosecutor he saw people with 30 or more misdemeanors, sometimes along with a couple felonies as well, and that is not atypical. He stated that in the cases of Mr. [Clayton] Charlie who killed an Anchorage Zoo [groundskeeper in November 2018] and Mr. Ahkivgak, sirens should have gone off. To the credit of the system, he continued, sirens did sound but the system either lacks resources or needs toughening up so that there is another set of eyes and ears looking at a potentially dangerous person. He said he believes the system does lack resources, but that problem won't be solved this spring. 3:26:18 PM The committee took a brief at-ease. 3:26:50 PM REPRESENTATIVE SUMNER moved to adopt the proposed committee substitute (CS) for HB 80, labeled 33-LS0224\S, Marx/Dunmire, 4/25/23, as the working document. There being no objection, Version S was before the committee. 3:27:41 PM MR. NYE provided a sectional analysis of Version S [included in the committee packet], titled "HB 80 CS Explanation of Changes Version B to S," which read as follows [original punctuation provided with some formatting changes]: Section 1 Page 1, Line 5 12.47.070(a) is amended to  read  Replaced section 1 of HB 80 version B with section 1 of SB 53 version P. Impact of Change No changes were made to section 1 of SB 53 version P. Section 2 Page 2, Line 8 12.47.100(b) is amended to  read Replaced section 1 of HB 80 version B with section 1 of SB 53 version P. Impact of Change No changes were made to section 1 of SB 53 version P. Section 3 Page 2, Line 26 12.47.100 is amended by  adding new subsections  Replaced section 3 of HB 80 version B with section 3 of SB 53 version P. The following crimes were added to subsection (j): AS 11.41 (all crimes against a person, including misdemeanors), AS 11.46.400-11.46.27 (arson crimes, just felonies), AS 11.61.140 (cruelty to animals), and AS 11.61.190-11.61.210 (misconduct involving weapons) Impact of Change SB 53 version P limits offenses of concern to felony offenses against a person (AS 11.41) and felony arson. The additional offenses that were added in subsection (j) broadens the offenses of concern that a defendant may be evaluated for in order to determine if they meet the standards for involuntary commitment. Section 4 Page 3, Line 16 AS 12.47.110(a) is amended  to read  Replaced section 4 of HB 80 version B with section 3 of that same version B. Delete "crime listed in (f) of this section" refers to "(f)" in HB 80 version B Insert "crime listed in (h) of this section" refers to "(h)" in HB 80 CS version S Impact of Change The changes made here narrow the scope of crimes that are listed. Crimes listed in (f) of version B that are not listed in (h) of version S are the following: AS 11.46.430 (criminally negligent burning in the second degree), AS 11.51.100, AS 11.61.118, and AS 11.61.22 Section 5 Page 3, Line 28 AS 12.47.110 (b) is  amended to read  Replaced section 5 of HB 80 version B with section 4 of SB 53 version P. Felonies against a person under AS 11.41 and felony arsony were already listed in subsection (b). We added the crimes AS 11.46.400 - 11.46.427, AS 11.61.140(h), or 11.61.190 11.61.200 Impact of Change For the crimes that we added to subsection (b), the court may extend the period of commitment for additional 18 months. Section 6 Page 4, Line 22 AS 12.47.110 is amended by  adding new subsections  Section 6 of HB 80 version B is replaced with section 5 of SB 53 version P. Felonies against a person under AS 11.41 and felony arsony were already listed in subsection (g). We added the crimes AS 11.46.400 - 11.46.427, AS 11.61.140, or 11.61.190 11.61.210 Impact of Change By adding these crimes to this subsection, it ensures that a defendant charged with one of these crimes will be subject to the process detailed in this subsection. Meaning that if they remain incompetent at the expiration of the additional 18 month period, they will remain subject to the next steps in the prosecutorial process. Section 7 Page 5, Line 23 AS 47.30 is amended by  adding new section 47.30.706  Section 7 of HB 80 version B is replaced with section 6 of SB 53 version P. Felonies against a person under AS 11.41 and felony arsony were already listed in subsection (a) and (d). To both of those subsections, we added the crimes AS 11.46.400 - 11.46.427, AS 11.61.140, or 11.61.190 11.61.210 Impact of Change If a person charged with an offense under the statutes we added has been found incompetent to proceed under AS 12.47, subsection (a) ensures that an attorney with the department of law file a petition with the court to have delivered to the nearest facility for an evaluation under AS 47.30.710. Adding these statutes to subsection (d) has the [effect] that a defendant charged with an offense under them is rebuttably presumed mentally ill and to present serious harm to self or others. And it says the court may consider as recent behavior "the conduct with which the. defendant was originally charged. Section 8 Page 6, Line 23 AS 47.30.710(a) is amended  to read  Replace section 8 of HB 80 version B with section 7 of SB 53 version P. No other changes made to this section. Section 9 Page 6, Line 29 AS 47.30.725 is amended by  adding new subsections  Section 9 of HB 80 version B is replaced with section 8 of SB 53 version P. Felonies against a person under AS 11.41 and felony arsony were already listed in subsection (g). To that subsection, we added the crimes AS 11.46.400 - 11.46.427, AS 11.61.140, or 11.61.190 11.61.210 Impact of Change This section details that a victim of a crime shall be notified when the criminal case is dismissed. That statutes we added in this section ensures that the victims of these additional crimes will be notified as well. Section 10 Page 7, Line 10 AS 47.30 is amended by  adding a new section  Replaces section 10 of HB 80 version B with section 9 of SB 53 version P. Felonies against a person under AS 11.41 and felony arsony were already listed in subsection (b)(2) and (b)(3). To those two subsections, we added the crimes AS 11.46.400 - 11.46.427, AS 11.61.140, or 11.61.190 11.61.210 Impact of Change (b)(2) and (b)(3) broadens the scope of offenses that may be considered when determining a 5 year commitment period. Section 11 Page 8 Line 17 AS 47.30.780(a) is amended  to read  Replaced section 11 of HB 80 version B with section 10 of SB 53 version P. No additional changes were made to this section. Section 12 Page 8, Line 23 AS 47.30.780 is amended  by adding subsections  We took section 11 of SB 53 version P and made it Section 12 in this CS. Felonies against a person under AS 11.41 and felony arsony were already listed in subsection (c). To subsection (c), we added the crimes AS 11.46.400 - 11.46.427, AS 11.61.140, or 11.61.190 11.61.210 Impact of Change By adding these offenses listed in these statutes to subsection (a), we have broadened the scope of offenses so that the professional person in charge may not discharge these additional respondents under (a) of this section unless the court officially terminates the involuntary commitment. Section 13 Page 9, Line 13, AS 47.30.805(a) is  amended to read  We took section 12 of SB 53 version P and made it section 13 of this CS. We didn't make any additional changes to this section. 3:47:38 PM CHAIR PRAX requested Ms. Baldwin-Johnson to provide her invited testimony. 3:48:31 PM KATIE BALDWIN-JOHNSON, Chief Operating Officer, Alaska Mental Health Trust Authority, provided invited testimony on HB 80. She stated that the Alaska Mental Health Trust Authority ("Trust") is glad for the dialogue that has occurred around the need to balance public and community safety with due process rights, given the potential for a Trust beneficiary to be institutionalized for up to five years without being convicted of a crime. The Trust recognizes the severity of recent events and incidents, she said, but most individuals who experience mental illness are no more likely to be violent than anyone else. She advised that mental illness and other behavioral health challenges, are best treated in a community setting when possible versus in an institution. Ms. Baldwin-Johnson further advised that investing resources to stabilize behavioral health services in communities is a critical approach to better serve individuals, ensure the availability of treatment, interventions, and supports, and establish greater opportunities to address the needs of the individual with chronic or exacerbated mental health conditions. Greater investment in services, she continued, increases community safety by better meeting the needs of individuals who require more support paired with the right treatment and, in some circumstances, more structured support and supervision. MS. BALDWIN-JOHNSON related that disability justice has been an established focus area for the Trust since 2005. She stated that Trust beneficiaries are at increased risk and involvement with the criminal justice system as victims and as defendants. She said this can be due to the person's disability and/or behavior health conditions and because there are deficiencies in treatment and support systems at all levels. The Trust's work in this area, she specified, includes diversion programs such as crisis stabilization and therapeutic courts, providing behavioral health services for incarcerated persons, re-entry services for returning citizens, and supporting organizations to expand and build out needed services in communities. 1:44:13 PM MS. BALDWIN-JOHNSON requested that the committee consider some of her thoughts as it moves forward: Is enough known about the broader impacts on the system? What will be the impact on the API's ability to serve the entire state, as well as impacts to Alaskan communities if beds at API are occupied for extended periods of time, potentially years? What is the impact on Alaskans experiencing an acute mental health crisis if the ability to access needed care is further reduced because individuals are institutionalized for longer periods of time? She pointed out that there are already access challenges due to hospital capacity and individuals can be boarded in hospitals for extended periods because there is not an available bed at API to admit them. She noted that API has been operating almost at full capacity for many months now. MS. BALDWIN-JOHNSON, in conclusion, encouraged the committee to consider limited restoration capacity currently at API, long wait lists, and what efforts have been implemented towards expanding capacity. She maintained that moving legislation forward would create increased demand without addressing the additional capacity needed. She said addressing the system's needs upstream will help improve both community and beneficiary safety. She urged that the legislature work collaboratively with the department to ensure that a plan is in place for addressing infrastructure and capacity limitations in Alaska prior to enacting legislation. 3:53:53 PM CHAIR PRAX opened public testimony on HB 80. 3:56:03 PM JOHN SKIDMORE, Deputy Attorney General, Criminal Division, Central Office, Department of Law, noted that [Version S] is attempting to address gaps in Alaska's laws. He further noted that [Version S] is also attempting to address the aspect that, currently, individuals charged with a crime and then found incompetent are not automatically referred or have petitions filed even in cases where it may be appropriate for them to be evaluated for a civil commitment. Several different concepts have been discussed about how that could be accomplished, he added. As well, he stated, [Version S] is attempting to address civil commitments, which the Criminal Division does not handle. Therefore, he continued, he cannot answer questions about that, but he can answer questions about criminal incompetence or about what happens during that process. 3:57:23 PM REPRESENTATIVE RUFFRIDGE surmised the current process of having two qualified [psychiatrists or psychologists] ensures that one person is not granted authority over another without a backup. He asked whether this process has been working well in determining incompetence in criminal cases. MR. SKIDMORE replied that the requirement of two individuals is a challenge because regularly only one individual is seen conducting evaluations. He pointed out that the requirement of certification by a particular board within the country is also a challenge since Alaska currently does not have any folks with that certification and hasn't for several years. He related that for several years, various reports have consistently recommended that only one individual be required to provide that opinion and that certification by that board not be required. Mr. Skidmore further advised that if either the state or the defense has concerns about the opinion that is offered, either party is at liberty to hire their own expert to conduct their own evaluation to provide further information. 3:59:22 PM REPRESENTATIVE RUFFRIDGE offered his understanding that there is no one employed by the State of Alaska or within the state who is certified by the [American Board of Forensic Psychology]. MR. SKIDMORE responded that there are individuals in the state who practice in that area and do so effectively, but he is unsure that they have received certification from the [American Board of Forensic Psychology]. In his experience, Department of Law prosecutors have routinely not been able to find individuals with those certifications in the state. 4:00:16 PM REPRESENTATIVE RUFFRIDGE read aloud from page 3, lines 8-12, Version S, which state: "If the defendant is charged with an offense under AS 11.41, AS 11.46.400-11.46.427, AS 11.61.140, or 11.61.190-11.61.210, a qualified psychiatrist or psychologist conducting an examination under (b) of this section may, at the same time, evaluate the defendant to determine whether the defendant meets the standards for involuntary commitment under AS 47.30.700 - 47.30.915." He inquired about the reason why they would be given the option to do that. MR. SKIDMORE answered that when an individual is first evaluated for competency, the system allows for the attempt to restore the individual if he or she is found incompetent. That restoration, he said, is broken into three phases 90 days, 90 days, and six months none of which are required; those are discretionary times. What the law requires, he explained, is that the court find that there is a possibility that the person could be restored. If restoration is not likely in that period, the "may" in this provision would allow a medical professional evaluating the person for competency to also evaluate, if the professional thinks it appropriate, whether the individual should be civilly committed. He stressed that the use of the word "may" means it is at the discretion of the medical provider conducting the initial evaluation for incompetency. It's a separate evaluation to determine if the person should be civilly committed, he added. 4:02:28 PM REPRESENTATIVE SADDLER asked whether there is any risk or downtick to having parallel evaluations for competency to stand trial and potentially for involuntary commitment. He noted that other provisions in the bill would allow the examining psychologist or psychiatrist to use previous evaluations, which it appears that the law does not now allow. MR. SKIDMORE replied that having parallel evaluations is not a problem legally. Conducting both evaluations is more resource intensive, he stated, and that could be problematic from a logistics perspective given that resources are limited to begin with. Regarding the value of a civil commitment evaluation at the time that a competency evaluation is done, he explained that if restoration is attempted and it's for 90 days, or another 90 days, or the final 180 days, the period of elapsed time from when the first evaluation was done until the case would ultimately be at the point of being dismissed assuming the person is still incompetent, may have made that civil commitment evaluation stale, requiring yet another evaluation. He reiterated that the term "may" makes it at the discretion of the medical provider to determine if that would be effective and helpful at that time and whether they have the resources to do it. 4:04:23 PM REPRESENTATIVE SADDLER inquired about the statistics under the current system for how often those found to be incompetent are restored. MR. SKIDMORE responded that he doesn't have a percentage off the top of his head for how frequently it occurs. He deferred to Dr. Becker to provide that answer. He related that during his 25 years as a prosecutor he has handled cases in which a person was deemed incompetent, was restored, and the prosecution proceeded, as well as cases where somebody was not able to be restored and the case had to be dismissed. 4:05:49 PM REPRESENTATIVE SADDLER asked whether the bill would impose an excessive burden on the Department of Law's Criminal Division. MR. SKIDMORE confirmed the bill would have some impact on the Criminal Division but stated he doesn't know whether the impact on the Criminal Division is the same that it might be on, say, API or the Civil Division of the Department of Law. He said one additional responsibility imposed upon the Criminal Division would be to file petitions when somebody is found incompetent under the types of crimes described in the bill, so not every time a person is found incompetent. An additional responsibility that would be imposed upon the Criminal Division, he continued, would be the requirement to notify victims in crimes where the person has been found incompetent and then potentially ends up in civil proceedings to determine whether there should be a civil commitment and, if committed, what is happening throughout that course. He said the Criminal Division has submitted a fiscal note given additional resources would be needed for the division to be able to accomplish those two things, but he doesn't consider the burden great. 4:07:28 PM MR. SKIDMOR, responding to Representative Mina, confirmed that the requirement to notify the victim is included in Version S, Section 9, pages 6-7. He explained that it is a new subsection that is added, with the three different types of notification found on page 7. 4:08:29 PM REPRESENTATIVE RUFFRIDGE observed that page 6, line 16, Version S, states: "In evaluating whether a defendant is likely to cause serious harm, the court may consider as recent behavior the conduct with which the defendant was originally charged." Given that a person is innocent until proven guilty, he asked whether it is a problem legally if someone is originally charged with something and those charges are dismissed, and then those alleged behaviors are used as reason to civilly commit someone. MR. SKIDMORE answered that he doesn't believe it poses a problem but allowed that others may disagree with him. His reason why, he explained, is that the initial probable cause statement which is filed in criminal charges is reviewed by the court, and that probable cause statement would not be moving forward without the court's agreement that there is probable cause to believe that the individual committed those crimes. When evaluating this initial portion, he stated, what is being talked about is whether there should be a petition for the person to be evaluated and whether the court is able to consider the conduct that occurred. Without that language, he continued, there can be up to a year's time from the date of the incident or the date of the charging until restoration is attempted to be completed and then civil commitment is being evaluated. What is typically looked for in civil commitments, he said, is conduct that causes folks to believe that the individual is a danger now. He noted that sometimes it is heard that that conduct is now stale and why is it thought that what the person did a year ago makes him a danger now? This [language], Mr. Skidmore advised, is an attempt to direct the court and others to evaluate the conduct the individual engaged in to begin with, the conduct found in the probable cause statement, to evaluate whether the person is a danger. It's not that the person is convicted, it's not proof beyond a reasonable doubt, it's a lower standard for these evaluations, it's a preponderance of the evidence, and being able to consider the information there is appropriate, he further advised. That does not mean that it is considered in a vacuum, other information can be provided, he added, and that is why that language is written the way in which it is. 4:11:52 PM KRISTY BECKER, PhD, Chief of Clinical Services, Alaska Psychiatric Institute, stated she is a forensic psychologist by training, so a criminal psychologist. She said she is before the committee to talk about the needs of the institution and some of the potential implications that HB 80 may have on API. She agreed with Ms. Baldwin-Johnson that there are potential capacity issues that this bill could cause for the facility in terms of who fills its beds, what nature of patients fill its beds, and where those patients are from, potentially filling more beds with individuals who have a history of criminal behavior or who have recently engaged in criminal behavior rather than vulnerable community members who need API's care. DR. BECKER related that API is revising a fiscal note for HB 80. She advised that with the two-year commitment period, the additional evaluative process, and the three-day holds included in HB 80, there will be a burden on the hospital to conduct evaluations and to house patients in a way that API isn't currently doing. She reminded committee members that Alaska has 10 beds dedicated for competency restoration for the entire population of Alaska. Those 10 beds represent the lowest per capita number of beds for competency restoration of any state in the nation, she continued, so API is currently operating at far below what would be ideal bed space for its patients, not just for this purpose but for all purposes. 4:14:54 PM REPRESENTATIVE FIELDS offered his opinion that API's under capacity is a separate issue than the need for this bill. He stated that API's under capacity has posed a public safety risk to Anchorage and throughout the state for a long time. He asked whether Dr. Becker would agree that trying to expand API's capacity should be done regardless of whether HB 80 is passed. DR. BECKER replied that there is clear cause, both civil and criminal through Title 47 and Title 12, to indicate that API does need expansion and that the expansion of community services and transitional care environments, upstream and downstream, are deeply needed by the state of Alaska. 4:15:43 PM REPRESENTATIVE SUMNER inquired about the number of new beds that would be needed to go from the lowest per capita fence to a fence in the middle of the pack. DR. BECKER responded that she doesn't have that number. She related that API has 30-35 individuals, on average, sitting on its waitlist in jail settings awaiting a bed in API's competency restoration unit. She further related that it currently takes between 120 and 130 days for an individual to get from the competency order issued by the court to a bed at API. Regarding the restoration periods of 90 days, 90 days, and then an additional 180 days, she pointed out that everyone is already in their second commitment period when they arrive at API's door. 4:16:50 PM REPRESENTATIVE SADDLER asked about the effectiveness of the entire process of trying to restore somebody charged with a crime to competency to stand trial. DR. BECKER answered that it is a complicated and nuanced area of the law and of psychological practice. She said, nationwide, about 60 percent of defendants referred for restoration are successfully restored, but in the state of Alaska, competency restoration is much less effective. She stated that there are significant problems in Alaska with getting people into restoration services in a timely manner as well as with the ability to access and provide involuntary medication to these patients once they are in services. She explained that if API's patients don't wish to take medication in the process of competency restoration, a separate procedure is necessary to involuntarily provide those medications to API's patients. The procedure is a very high legal standard that is hard to reach, she continued, and because it isn't codified in Alaska statute API relies on federal statute to attempt to do this. Dr. Becker said that leaves API to the whims of different jurisdictions and judges' interpretations of this federal guideline to determine who it can or cannot provide involuntary medication to. The shortened period of time that API is given access to the patient and able to provide the services, along with the incredible limitations on API's ability to provide medication against those patients' will, prevents API's ability to restore them and restoration rates are far below the national average. 4:19:07 PM REPRESENTATIVE SADDLER asked whether Alaska has more people committing crimes who are possibly mentally incompetent than other states. DR. BECKER replied, "Not to my knowledge." She said Alaska has higher rates of certain types of crimes and certain types of behavior than other states, and the rate of sexual assault in Alaska is above national averages. Nationwide, she specified, competency restoration and the pressure to manage incompetent defendants through state hospital systems is problematic and there is an exponential growth rate of the referrals and number of people who are referred for competency restoration orders for competency evaluation and thereby hospitalized. She noted that information is available about how other states are either managing it well or are failing to manage or struggling to manage it. 4:20:13 PM REPRESENTATIVE SADDLER inquired about the reasons for why there are this many people being incompetent and committing crimes. DR. BECKER responded that from a data driven perspective it would be difficult for her to fully answer that, but she believes there is a historical timeline that can be followed. She stated that since the occurrence of deinstitutionalization during and shortly prior to Ronald Reagan's administration, many individuals who had spent their lives inside psychiatric hospitals were released into communities with the intent to provide community services for them and have them live in communities and be supported. From a clinician's perspective, she said, the nation did not provide those community resources, nor were these folks shored up in communities in a way that was safe. An insurgence of nuisance crimes was seen, behaviors related to mental health, she continued. A person with a mental illness, Dr. Becker continued, is much more likely to have legal exposure than an average individual. She said it holds to reason that part of the exponential increase in the concerns about competency and the number of orders for evaluation and thereby restoration is related to these folks being out in communities more. Through the course of time, she added, this has exacerbated and grown along with the problem with folks who are unhoused and the general inability of communities nationwide to manage these populations effectively. 4:22:00 PM REPRESENTATIVE RUFFRIDGE inquired about the number of forensic psychologists at API in addition to Dr. Becker. DR. BECKER answered that besides herself, there is a chief forensic psychologist who manages the 10-bed unit in question, a forensic psychologist who recently joined API from Washington state, and another forensic psychologist whom she recently hired. She said API also currently has four contractors who support the hospital through telehealth and conduct some competency evaluations via telehealth mechanisms like Zoom where they can interface with the defendants and provide API with a report for competency. REPRESENTATIVE RUFFRIDGE noted that Alaska doesn't have a place to train forensic psychologists. He asked where Dr. Becker was trained and how long she has been doing this. DR. BECKER replied that she has worked in criminal justice and mental health since she was 18 years old, starting her career as a psychiatric technician at Western State Hospital. She went on to work in a maximum-security prison, she said, then went to undergraduate school in Idaho and received her master's degree at Teachers College at Columbia University in New York. She went to Sam Houston State University in Texas, she continued, one of the top five brick and mortar colleges that produce forensic psychologists. There are not many forensic psychologists in Alaska, she noted. She explained that a forensic psychologist has the same training as a clinical psychologist, and that psychiatrists are medical doctors who give medications, while psychologists are not medical doctors and don't give medications but do reports and conduct evaluations. She related that she came to Alaska on her internship to work at API for one year and she chose to stay. She noted that API can train a clinical psychologist to have forensic skills, but it takes time and practice with oversight, so it isn't something that someone straight out of graduate school can just start doing. REPRESENTATIVE RUFFRIDGE inquired about the number of other states Dr. Becker has been in. He further asked whether other states have this same problem, whether they have solved it, and, if so, whether the approach was the same [as proposed in HB 80]. DR. BECKER confirmed other states have this problem and she would say resoundingly that they have not solved it. Different approaches have been taken by other states, she said. For example, she continued, Washington, Oregon, and Colorado are all under some sort of consent decree or legal action where suits have been brought forward indicating that civil liberties of defendants are being violated because they are being held in jail for far too long prior to receiving competency restoration services. Those consent decrees, she explained, have created edicts in which there are certain timelines that revoke the evaluative process and the amount of time that is allowed before a defendant can be admitted to the hospital. She noted that they've also created quite short timelines of 7-14 days on average for the defendant to be hospitalized after a finding of incompetence so the restoration process can begin quickly. She specified that those states, however, are generally not always able to comply with those consent decrees, and often find themselves being fined because of their inability to comply. DR. BECKER continued her response. She related that states have also attempted to address this problem by using outpatient competency restoration and jail-based competency restoration. She advised that she has made efforts to institute both of those programs in Alaska, with the support of her administration. She said API has had consultants evaluate Alaska's ability to initiate an outpatient competency restoration pilot and API will try to do that starting August 2023 with 10 people who are misdemeanants that have no crimes of force involving a person. Jail-based programs, she continued, function in a variety of ways in which restoration services can be provided while the defendants are still in custody prior to being hospitalized. How this might look in Alaska, she said, is that the very lowest level criminal defendants might be able to bailed out, placed on bail conditions, and then restored in the community; the mid- level defendants with a variety of illnesses who are able to cooperate with medication provision in a custodial setting in jail could receive services in jail; and the most acute and most severely ill individuals could be placed in API's 10-bed unit. That could reduce the pressure, she advised, but even if both those programs were opened today [API] would have a wait list with five or six people on it. 4:27:26 PM REPRESENTATIVE RUFFRIDGE, should the bill be passed in its current form, asked whether the state would be at the same risk of liability for those same issues of holding people in jail for too long because the state doesn't have this expanded capacity. DR. BECKER deferred to an attorney or someone better able to answer that question. However, she suggested, it is reasonable to say that, given the current wait lists, there is already potential jeopardy for that outcome and probably has been for some time. So, she continued, additional pressure, additional capacity issues, and an inability to move people off waitlists is likely to exacerbate that problem along with the capacity issues that API is currently facing. 4:28:46 PM REPRESENTATIVE MINA surmised that HB 80 would result in a higher number of civil commitments for people with a history of violence. She inquired about the current safety standards for nonviolent patients also housed at API. DR. BECKER answered that those populations are already mixed to some extent. She explained that because of the commonality and frequency of criminal exposure or legal exposure for individuals with mental illness, and the current state of the nation, there are a lot of defendants or patients who move between the competency restoration unit and the civil unit on a routine basis. She posed a hypothetical scenario where Mr. Smith comes into API because he is gravely disabled and unable to care for himself in the community, he is placed on meds and returned to the community, he steals a car, he comes to API for competency restoration, API isn't able to restore him, he leaves again after some time with medication, then he behaves in a threatening way at a local grocery store, is found to be dangerous to others, and is returned to the civil side of API. Dr. Becker said it's uncommon that API has an individual who is just a competency defendant or just a civilly committed patient, rather it is more common that there is mobility between those two states and those two legal states. DR. BECKER continued her response to Representative Mina. She said API's safety precautions designed in the hospital address the awareness of individuals residing on API's regular civil adult units who then may also reside on the forensic unit. The safety precautions in place, she explained, are adequate staffing, patient monitoring, and a minimum of 15-minute checks on every patient. She noted that if there is any incidence of threat, violence, or sexual impropriety between patients, API will investigate, appropriately separate the patients, and report to the ombudsman and other related agencies such as adult protective services. 4:31:27 PM REPRESENTATIVE MINA asked whether, for patient and staff safety, there should be more focus on improving the safety components of adequate staffing and patient monitoring should there be an increase in people who have a history of violence. DR. BECKER replied yes, [API] must be conscientious about how it staffs patients who are exhibiting dangerousness to others and whether it increases the need for higher staffing ratios and for one-to-one staffing to ensure safety of all patients at API. She advised that if API does move toward a more forensic population where the hospital has more individuals with legal involvement and criminal histories, it will rub up against API's ability to maintain accreditation. It can be difficult, Dr. Becker explained, because of the nature of management of large groups of individuals with criminal histories and the rules and guidelines necessary to maintain a safe environment that meets guidelines for the regulatory bodies. So, she continued, there will be many questions drawn about safety and other issues if the hospital does become more forensic in nature. 4:33:08 PM REPRESENTATIVE MINA asked if there would be workforce issues with hiring for more positions and expanding that capacity. DR. BECKER confirmed that there would be workforce issues. She advised that API currently has significant workforce issues and difficultly hiring and is staffing many of its nursing positions with traveling nurses. She acknowledged that the committee has heard from a variety of people about the difficulties that API experiences in finding both nursing staff and higher-level professional staff, including psychologists and psychiatrists at the API facility. 4:34:03 PM CHAIR PRAX noted that only a small part of the total population of people with mental illnesses find themselves before a court for committing some sort of crime. He asked whether the right strategy is being chosen, or whether there is a better strategy that would intercept in a positive way more people. DR. BECKER acknowledged that the incident prompting this attention is a tragedy and allowed that there are community safety concerns brought about by some individuals whom she treats. She offered her appreciation for use of the word "intercept" because when looking at models within criminal justice and mental health care, the talk is about intercepts and when intervention can occur. There are multiple points of intervention, she explained, and the interventions being talked about today are interventions after everything has in some way failed and an individual is in a circumstance of having inflicted harm upon another person and is now in legal trouble and facing the consequence of incarceration or long-term hospitalization because of their inability to be safe in the community. Dr. Becker stated that her preference as a clinician and a practitioner is to create intercepts as early as possible because the earlier the intervention from when an individual first develops a mental illness, the better the outcome. If the outcome is better, she said, an individual may be prevented from becoming dangerous. Treatment, safe and secure housing, and compliance with long term outpatient care reduces the risk of the patient harming others, she added. It's an imperfect system, she advised, and predicting risk is very challenging even for people trained to do it and oftentimes those people will be wrong. 4:37:52 PM NANCY MEADE, General Counsel, Alaska Court System, first qualified that the court is neutral on HB 80. She stated that the issue of capacity is something for the committee to bear in mind. She further pointed out four things for committee members to think about with HB 80 in terms of policy: 1) How long should the restoration period be in a criminal case when somebody is found incompetent and HB 80 changes that? 2) When a case is dismissed because the person is not competent in that criminal case, what groups of cases must be segued directly into the civil commitment process? 3) Should there be a long-term civil commitment process for those individuals who are segued after being found incompetent to stand trial? 4) How long can that hold be? Ms. Meade related that Version S of HB 80 is workable from the court's point of view, but she is uncertain whether it's practically workable and will accomplish everything the committee wants it to accomplish. However, she advised, it is a step forward for doing something with the individuals whose cases get dismissed and there is a sense that they have some threat to public safety and therefore something else needs to be done with them other than letting them go. 4:39:58 PM CHAIR PRAX inquired about the number of cases in the Anchorage courts. MS. MEADE answered that statewide data isn't complete because it isn't the court system's role to collect that data and determine what is going on, but there is decent data for Anchorage. She said she will therefore stick with the criminal cases, Title 47, where a person is found incompetent to stand trial. Statewide [in 2022], she related, there were 404 requests for evaluations for competency in a criminal case. About 240 of those were in Anchorage where the court found that examination was justified. Out of those 240 cases, she continued, about 140 had felony charges and in 78 of those cases the defendant was found competent after evaluation. The Alaska Court System, Ms. Meade advised, does not perceive that the capacity issues at API would affect these evaluations that are ordered because they happen in a fairly timely manner of two-three weeks, or a bit longer if the defendant is not in jail and must be located. So, she said, out of 240 orders, a third were found competent, meaning that two-thirds of the people, about 160, were found incompetent by API. Most of those cases, she specified, get dismissed because API's wait list to get in for restoration is 120-150 days and if the person is facing less time than that in jail, for example, or if there is no substantial likelihood that the person is going to be restored, the court or the prosecutor dismisses the case. Out of all those, she continued, 12 people ended up going to API for restoration and six of them got restored to competency and six were found non-restorable. While these numbers are for just one year, Ms. Meade stated, it would mean that under this bill the six cases of those found non-restorable plus the cases that were dismissed would be segued by a petition into a civil evaluation, which takes three days, to determine if full mental commitment proceedings should be filed and continued from there, and then it is in Title 47. 4:43:23 PM CHAIR PRAX calculated that roughly 120 of these cases a year are found incompetent to stand trial but should be evaluated for civil commitment. MS. MEADE replied that it's more like a couple hundred for the whole state, not just the numbers for Anchorage. She qualified that she doesn't have exact data with what those persons were charged with but said most of them will have been charged with an AS 11.41 crime against a person. If someone is charged with a lesser crime the case is often dismissed earlier than the finding of incompetency and the first 90 days passes. This bill would move only the people with the finding of incompetency. It is generally the cases of crimes against a person that are held onto a bit longer to see if the person can be restored or to get the person into the civil commitment. 4:45:41 PM MARK REGAN, Legal Director, Disability Law Center of Alaska, relative to Dr. Becker's testimony about the pressures on the system and on API, stated that inadequate competency restoration and inadequate capacity for competency restoration is a long- standing problem in Alaska. He referenced a 2019 study and noted that in Alaska the lengths of waiting lists and people being held in jail awaiting competency restoration are about the same now as they were in 2019. He further noted that there are different ways to do competency restoration, but the 2019 study recommended that 25 more beds be added to the 10 beds currently in API's unit for competency restoration. Despite much discussion, he added, nothing has been agreed upon and the state has not committed to providing those additional 25 beds and that additional capacity. MR. REGAN addressed alternatives mentioned by Dr. Becker and others, such as the possibility for some people to go through competency restoration as outpatients. Expanding capacity by allowing for more outpatient commitment is a good idea, he counseled, but neither Version S nor any of the amendments [in the committee packet] adopts the Senate bill's encouragement of outpatient commitment processes and bail conditions that would steer people into the outpatient commitment opportunity. In the other direction, he said, are jail-based competency restoration programs that respond to the unfortunate situation that when there is a waiting list and a delay of 120-150 days or more, people are going to be sitting in jail not getting help and not getting restoration. So, Mr. Regan advised, even though this is the wrong setting for people to be going through competency restoration, it may be a better setting than the person not getting services at all. He stated that regardless of whether the committee does or doesn't take the opportunity to expand jail based and outpatient competency restoration, legislation like HB 80 will put many more people in competency restoration which will lead to somewhat more people going through the civil commitment process on competency restoration at API. MR. REGAN asserted it is wrong for people to sit in jail for half a year waiting to get into API for competency restoration. As was pointed out, he recounted, there have been lawsuits in Washington state, in particular the Trueblood case which imposed very tight time limits on how soon a person can get into a state hospital once found incompetent. The problem there, he advised, is that if these time limits get enforced, they are typically enforced by fines, rather than by people getting out, getting no restoration, getting no help. The fines have not gone to the benefit of the lawyers or clients who brought the cases, Mr. Regan further advised, the fines have typically gone back into the system, so lawyers have not been taking resources away from competency restoration by bringing those lawsuits. He stated that Dr. Becker is precisely right, the lawsuits have led to orders that are unenforceable as a practical matter, and so he is not sure the legal exposure of the state and lawsuits are going to do much good. MR. REGAN suggested that having more resources available for competency restoration would be good. He said a study could be done to look at whether a practical way would be, for example, to have a separate facility or to have an expansion at API so more beds could be devoted to competency restoration. He stated that it would be good if the legislation before the committee leads to an expansion of capacity that helps people, reduces waiting times, and keeps people out of jail and in a more therapeutic setting. He expressed his concern that two things are going on one is putting more people through the competency restoration system and the other is finding the resources to treat them. He urged the committee to not put more people in the system without immediately supplying the resources for treating them as that would make the existing problem worse. 4:53:08 PM CHAIR PRAX inquired about what way, in Mr. Regan's view, the problem would be made worse. MR. REGAN responded that the problem, as he has tried to define it, is too many people waiting for competency restoration. A typical place for someone to wait for competency restoration is in jail, he pointed out. He related that in a case decided by the Court of Appeals in 2020 [or thereabout], a person with severe mental illness was charged with a misdemeanor and spent eight months in jail waiting for competency restoration services because there were no open beds. The person's lawyer filed suit, he said, and the Court of Appeals dismissed the charges because someone with a misdemeanor cannot serve more than a year and this person was close to that amount of time. The Court of Appeals, he continued, said it was a due process violation to hold this person for 300 or 330 days without treatment, without competency restoration. It's going to make the problem worse, he said, if there are more people with misdemeanors waiting in jail for extended competency restoration. MR. REGAN discussed civil commitments. He stated that the Senate bill which has been merged into Version S provides for extended civil commitment periods of up to five years. However, there are several problems with the technical way this is done, he advised, one being that no standards are included in the bill for a judge to use for figuring out whether it is 18 months, three years, five years. Another is related to things that are necessary to protect the public, he said. Based on what people have told him, not personal observation, there are eight to ten people in the more general population at API who are there on a series of 180-day commitments, he stated. They're not getting better necessarily, he conveyed, they are there because their cases come up every 180 days and commitments are renewed. That's the alternative to this five-year commitment process, he stated. His organization's position, Mr. Regan related, is that the five-year commitment process has constitutional problems as a matter of equal protection, as a matter of discrimination against people with disabilities. But, he continued, if the 180-day renewable process is sufficient, then extending it to a five-year system isn't needed because the people currently in API going through these repeated civil commitment processes show that that works. 4:57:38 PM MR. REGAN addressed the case of Ms. Harris and the man who assaulted her [Mr. Ahkivgak]. He said he doesn't know why Mr. Ahkivgak didn't get into the civil commitment process as someone who was dangerous and a danger to others. Had somebody initiated the civil commitment process at the time of Mr. Ahkivgak's last criminal involvement before the stabbing at the Loussac [Library], Mr. Regan continued, then presumably Mr. Ahkivgak would have been committed, presumably his commitments would have gone up through the 180-day period, and he would probably be there today and not have committed the crime. What went badly wrong with the existing system, he advised, was that nobody filed for civil commitment. This bill and all the bills pending in the legislature, he said, would require that a civil commitment petition be filed, and once that's done the person would be in a system that is renewable, and which would protect the public. The problem is not that a five-year system is needed, he stated, the problem is that the system needs to get on with its process of holding people and providing treatment to them for up to a 180-day period. People can be protected with the 180-day system if only it would get started, he continued, so that's why the Disability Law Center of Alaska thinks that a five-year civil commitment is not needed. 4:59:43 PM REPRESENTATIVE FIELDS stated that he introduced a bill a couple years ago to force expansion of API, but in the last 30 minutes it seems two problems have been identified one is a lack of capacity at API and the other is the problem addressed in HB 80. He said he doesn't want the fact that there are two problems to delay or prevent the committee from addressing the problem being dealt with in HB 80. He requested that the committee consider amendments and pass the bill as expeditiously as possible. 5:00:24 PM REPRESENTATIVE MINA, regarding the five years and the renewal period of 180 days, offered her understanding that Section 4 of the original version of HB 80 had the 180-day renewal period. She asked whether that previous 180-day window could be a potential way to change Version S. MR. REGAN answered that he believes there is an amendment [in the committee packet] which would remove the five-year idea. He advised that if the up to five years commitment was dispensed, it would still be necessary for there to be a civil commitment petition filed when certain charges are dismissed or when competency cannot be restored, as he is sure the bill proponents would not want that taken out. He stated that the original bill version didn't have the five-year system, but the committee could revert to the original bill and take some of the improvements from SB 53 and get to the same result. 5:02:13 PM The committee took a brief at-ease. 5:02:43 PM REPRESENTATIVE JOSEPHSON stated that to the extent he doesn't respond to some of Mr. Regan's concerns, [members] could take something suggested from that. He clarified that Section 3 and Section 6 of [Version S] do talk about outpatient clinics and that Version S really is Senator Claman's bill plus a few things. Regarding Mr. Regan's concern with housing improperly the wrong people, Representative Josephson stated that currently under law, attempts to restore a misdemeanant can last 12 months and he thinks that that is on all misdemeanors. Version S, he continued, would reduce all misdemeanor restoration attempts other than the assault fours that he talked about and includes all the AS 11.41 offenses against people. The bill reduces that 12-month period down to six, he added, but efforts at restoring misdemeanants would be reduced under Version S. 5:04:59 PM ALEXANDER SCHROEDER, Staff, Representative Andy Josephson, Alaska State Legislature, spoke on behalf of Representative Josephson, prime sponsor of HB 80. He explained that currently a misdemeanor charge can put a person into restoration for up to 12 months if the person meets the criteria of crime against a person. Under [Version S], he pointed out, it's only felony charges in AS 11.41 - felony arson, felony cruelty to animals, and felony misconduct involving weapons. The maximum amount of time that a misdemeanant could spend in restoration under [Version S] is six months, he stated. REPRESENTATIVE JOSEPHSON confirmed that it is six months. He said the misdemeanor assaults about which he spoke would get a continuing look through the civil commitment process; it's six months. 5:05:59 PM The committee took an at-ease from 5:05 p.m. to 5:06 p.m. 5:06:52 PM CHAIR PRAX inquired about the committee's will regarding HB 80. REPRESENTATIVE FIELDS suggested moving the bill now in the interest of getting the bill passed this year. 5:07:22 PM The committee took an at-ease from 5:07 p.m. to 5:09 p.m. 5:09:45 PM REPRESENTATIVE RUFFRIDGE moved to report CSHB 80, labeled 33- LS0224\S, Marx/Dunmire, 4/25/23, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 80(HSS) was reported out of the House Health & Social Services Standing Committee.