SB 53-COMPETENCY; INVOLUNTARY CIVIL COMMITMENTS  4:12:18 PM CHAIR WILSON reconvened the meeting and announced the consideration of SENATE BILL NO. 53 "An Act relating to involuntary civil commitments." 4:12:49 PM SENATOR MATT CLAMAN, District H, Alaska State Legislature, Juneau, Alaska, sponsor of SB 53, stated that his office began working on SB 53 at the request of legislators wanting to respond to constituent Angela Harris's tragic experience. SENATOR CLAMAN moved to slide 2 and read: [Original punctuation provided.] Angela was returning books to the Loussac Library in Anchorage when a man stabbed her in the back. The perpetrator had attacked two other women less than two months earlier, and was released by the court after he was found incompetent to stand trial. We believe this individual should not have been released to the community. A petition for an involuntary commitment should have been filed based on his prior attacks and his psychiatric condition that made him a danger to the community. 4:13:43 PM SENATOR CLAMAN turned to slide 3 and read: [Original punctuation provided.] In working on this legislation, we reviewed the extensive legal history of John Hinckley. You may remember that John Hinckley was arrested for his assassination attempt on President Ronald Reagan in 1981. Hinckley was charged with attempted assassination of the President; assault on a federal officer of the United States; and illegal use of a firearm. In the trial, the jury found Hinckley not guilty by reason of insanity. Immediately upon this finding by the jury, Hinckley was committed to Saint Elizabeths Hospital for an indeterminate period of time an involuntary commitment. From 1981 to 2022, the restrictions imposed on Hinckley by the court were lessened as his psychiatric condition improved. During his hold, Hinckley petitioned the court numerous times for release. 4:14:26 PM SENATOR CLAMAN continued: For example, in 1999 Hinckley filed a motion for conditional release. The court was required to make findings of fact and conclusions of law whether the proposed release would benefit the patient and be safe for the public. The court denied the motion because of Hinckley's history of deception, the hospital's repeated inability to control his actions, and an incident where Hinckley attempted to stalk a member of the staff. Hinckley's counsel appealed the decision, and the appellate court affirmed the ruling of the lower court. In 2008, Hinckley was approved by the court for limited conditional release for overnight stays at his mother's home. The plan included very detailed requirements for the plan of his stay, who was meant to supervise Hinckley, and how many times he was meant to meet with the local psychiatrist during these stays. In 2013, Hinckley was approved for eight 17-day visits with the purpose of these visits being genuine integration into the community. The court found that Hinckley's narcissistic personality disorder was not evidence of potential dangerousness but maintained concerns about his failure to integrate himself into the community. 4:15:26 PM SENATOR CLAMAN continued: In 2016, the hospital and government agreed that Hinckley's primary diagnoses had been in full and sustained remission for well over twenty years. Most experts agreed that he had received the maximum benefits possible in an in-patient setting. The court approved full-time convalescent leave with additional and modified conditions. Ultimately, in 2021, the court held a status conference at which government counsel and Mr. Hinckley's counsel discussed his mental stability, compliance with conditions set by the court, and their agreement specific to Mr. Hinkley's 2022 unconditional release. You may ask why talk about John Hinckley. Here's why: Hinckley was a person with a mental illness who spent many years in involuntary commitment and who was only released when he no longer presented a danger to the community. 4:16:22 PM SENATOR CLAMAN turned to slide 4 and said: Senate Bill 53 deals with Title 12, which is related to criminal charges, and Title 47, which is related to civil proceedings. The determination of whether an individual is competent or incompetent to stand trial, in addition to restoration to competency if deemed incompetent, is a process set out in the Code of Criminal Procedure in Title 12. The standard for determining an individual's competency to stand trial is found both in statute and in a long history of case law. A simplified explanation of competency, an important consideration of the court, is whether the individual understands the charges against them, can assist their lawyer, and is therefore able to plead guilty or not guilty to the charges. Competency is not a defense and is unrelated to the mental state of the individual at the time of the crime. In order to protect constitutional due process rights of individuals in our legal system, a person who is incompetent to stand trial cannot be convicted of a crime. This is because a person has the right to understand the crime with which they are charged and the consequences of the crime they've been charged with. A separate process is used for involuntary commitment in Title 47 Welfare, Social Services, and Institutions. The standard for involuntary commitment is whether an individual, as a result of their mental illness, is a danger to themselves or others. 4:17:57 PM SENATOR CLAMAN turned to slide 5 and said: [Original punctuation provided.] Senate Bill 53 creates a duty for the Department of Law to file a petition seeking involuntary commitment when: a defendant is found incompetent to stand trial at the expiration of the final period for competency restoration, the defendant is charged with a felony offense against the person, and they present a danger to themselves or others. The legislation does not specify which side of the Department of Law files the petition, either criminal or civil division, and this is meant to allow the Attorney General's office more management flexibility in determining who makes these petitions. 4:19:56 PM SENATOR CLAMAN turned to slide 6 and said: [Original punctuation provided.] In our conversations with Angela, we grew to understand the direct impact current statute has had on her ability to find the assurance she needs moving forward. The legislation before you creates a five- year involuntary hold option for individuals who meet the following qualifications: • They have been found incompetent to stand trial on a felony offense against the person • They have been previously subject to involuntary commitment orders for 30, 90, and 180-day holds • They have a history of felony offenses against the person • And they present a danger to themselves or others This expansion of Alaska's involuntary commitment statutes reflects the reality that there exists a small number of individuals who, as a result of behavioral health issues, present a danger and are not suitable for community-based treatment options. 4:19:37 PM SENATOR CLAMAN turned to slide 7 and said: [Original punctuation provided.] As a matter of protecting the due process of individuals in the state of Alaska's care, Senate Bill 53 includes language that the respondent may petition for early discharge. The court must find, in order to accept a petition for early discharge, that the respondent is no longer a risk to themselves or others. 4:20:08 PM EMMA POTTER, Staff, Senator Matt Claman, Alaska State Legislature, Juneau, Alaska, presented the sectional analysis for SB 53 as follows: [Original punctuation provided.] Section 1  AS 12.47.110. Commitment on finding of incompetency Adds a new subsection (f) clarifying that the Department of Law has a duty to file an involuntary commitment petition when a person has been found incompetent to stand trial and the criminal charges are being dismissed due to the defendant's inability to be restored to competency. Section 2  AS 47.30.771. Additional five-year commitment Adds a new section creating additional five-year involuntary commitment. Five-year commitment petitions are filed at the expiration of 180-day commitments for individuals who meet the following criteria: the respondent is mentally ill and as a result is likely to cause harm to self or others; the respondent has a history of repeated felony offenses against a person under AS 11.41, or attempts of harm to self; the respondent has been found incompetent to stand trial under AS 12.47.100 and 12.47.110 for a felony offense against a person under AS 11.41; and commitment of the respondent for greater than 180 days but not greater than five years is necessary to protect the public. Clarifies that findings of fact relating to the respondent's behavior made at 30-day, 90-day, and 180- day commitment hearings shall be admitted as evidence and may not be rebutted except that newly discovered evidence may be used for the purpose of rebutting the findings. Instructs the department to submit an annual report to the attorney general, public defender, public advocate, Alaska Court System, and the attorney of record of the respondent detailing how many respondents are committed under this section and how much time remains on each order of commitment. Section 3  AS 47.30.780. Early discharge Amends subsection (a) to include reference to new subsection (c) of AS 47.30.780. Section 4  AS 47.30.780. Early discharge Adds new subsections which require that the professional person in charge may not discharge respondents from involuntary commitment unless the court enters an order officially terminating the involuntary commitment after a hearing. This section requires a court decision on discharge of a respondent from involuntary commitment. Section 5  AS 47.30.805. Computation, extension, and expiration of periods of time Amends section (a) to include five- year commitments. States that five-year commitment period expires at the end of five years after the 180- day period of treatment. 4:22:57 PM SENATOR GIESSEL asked Senator Claman why he chose five years for the commitment period. 4:23:05 PM SENATOR CLAMAN stated he sought to establish balance by not taking away too many rights. For example, a 50-year commitment seems excessive regarding due process and what a court would approve. Five years has some equivalencies to certain felony sentences. The five-year hold provides time for the offender's successful planning and community integration. Having hearings every six months puts an undue burden on victims such as Angela. 4:25:24 PM SENATOR DUNBAR referred to page 2, lines 12-15, and asked for an explanation of "repeated." He wondered whether a person would need more than one prior offense to receive a five-year commitment. 4:26:37 PM SENATOR CLAMAN opined that the court of appeals determined "repeated" to mean more than one. He said he leans towards removing the word "repeated" because one prior felony offense should be adequate. The first incident is not enough, but the second incident would be enough to receive a five-year commitment. 4:27:33 PM SENATOR DUNBAR opined that a person would not receive a five- year commitment until a third felony incident occurred based on how SB 53 was written. 4:28:00 PM SENATOR CLAMAN said his understanding and the court of appeals opinion would be that a second incident would be the basis to move forward. He thinks "repeated" should be removed from SB 53. 4:28:33 PM SENATOR DUNBAR asked how other states have handled involuntary civil commitment. 4:28:53 PM SENATOR CLAMAN replied that there are two topics associated with involuntary commitment. The first is how long an incompetent person should be held to establish competency. The second is the length of time for a civil commitment. SB 53 seeks to make Alaska one of the first states to have a long involuntary civil commitment based on facts about a person's unprosecuted criminal conduct. He said he was not familiar with other states' incompetency hold laws. Recently, Colorado has allowed individuals to be held to try and restore them to competency using the length of the potential criminal charge. If someone was facing a 99-year sentence, they could be held involuntarily for 99 years to try and restore their competence. He stated his belief that this creates due process concerns somewhere after year one but before year ninety because it is like putting someone in jail without holding a trial. 4:30:48 PM SENATOR KAUFMAN referred to Page 2, line 10, and asked if the requirements are inclusive. 4:31:20 PM SENATOR CLAMAN said page 2, line 18 uses the word "and, which means requirements 1 - 4 in subsection (b) must all be true. 4:31:40 PM SENATOR TOBIN asked whether an incompetent person stands trial for their crime once declared competent. SENATOR CLAMAN replied that there are three outcome scenarios for an incompetent individual who has committed a crime: • If, after a period of hold to restore competency, the person is not restored to competency, that fact is brought before the court, and the court dismisses the charges based on incompetency. • If a person is deemed competent sometime after the court has dismissed charges based on incompetency, the charges against them can be reinstated. • If the court dismisses charges based on incompetency and sometime after that, the person is deemed competent, the original charges can be reinstated. • If the person is deemed competent after a period of hold to restore competency, the charges proceed. 4:33:23 PM CHAIR WILSON asked Senator Claman whether the three outcomes of a commitment hold were included in SB 53 and if it mentions there is no statute of limitations for incompetency. 4:33:53 PM SENATOR CLAMAN replied that SB 53 does not require the specification of the statute of limitations that apply to certain crimes. There is no statute of limitations for murder, sexual assault, or abuse. He suggested seeking a legal opinion. 4:34:37 PM CHAIR WILSON questioned whether SB 53 needs to contain language stating a person could face original charges once found competent. 4:34:55 PM SENATOR CLAMAN opined that it would not prevent charges from being filed. He deferred to the general counsel. 4:35:29 PM NANCY MEADE, General Counsel, Office of the Administrative Director, Alaska Court System, Juneau, Alaska, said AS 12.47.110(b) clarifies what happens when somebody is found incompetent. She summarized AS.47.100(b) as follows: If the person is what we call not restorable after two six-month periods, the charges shall be dismissed without prejudice; without prejudice meaning the prosecutor is free to refile. But it also says if the defendant remains incompetent for five years, the same time period as Senator Claman's bill, by the way, after the charges have been dismissed, the defendant may not be charged again, for that same facts, except if the original charge is an A felony or an unclassified felony. So, I think that's very clear; for the more serious crimes, you can do it at any point, but after five years, the 11.41 crimes that are B or C felonies or below could be recharged because the case was dismissed without prejudice. 4:36:41 PM SENATOR TOBIN said a patient or individual under SB 53 who has committed a crime must petition a competency declaration. She asked if an individual could game the system by not applying for a declaration of competency. 4:37:24 PM SENATOR CLAMAN said he is concerned that a decision of incompetency under Title 12 is being confused with an involuntary commitment decision under Title 47. SB 53 is more about involuntary commitment than competency. Involuntary commitment results from a person's mental health posing a defective danger to oneself or others. He stated his understanding that courts ultimately decide competency. A medical professional can opine that a person is competent to stand trial, but the decision is not made solely by a physician or evaluator. SB 53 seeks to establish that before a person's release from an involuntary commitment by a physician or evaluator, they must have a court hearing and receive a non- dangerous finding before being released. SENATOR TOBIN said she wants to ensure that the court could hold a person accountable following the five-year jeopardy period if they are competent. SENATOR CLAMAN responded that after being held incompetent for five years, the court could not charge a person that didn't have a Class A or unclassified felony charge against them. However, if four years and six months into an involuntary hold, a person was found competent, the court could bring charges against them. 4:39:59 PM CHAIR WILSON asked how it is justifiable to hold a person in an involuntary hold for five years if the sentence they would have received for the crime committed was less than five years. 4:40:45 PM SENATOR CLAMAN replied that there is no criminal sanction when a person is declared incompetent and criminal proceedings are dismissed. Once this happens, the individual is held involuntarily based on their psychiatric condition if they are a danger to themselves or others. He stated there are people in the Alaska Psychiatric Institute who are on serial 380-day holds based on a finding of danger to the community. The ability to hold an individual is unrelated to the criminal process because incompetency means they do not understand the process. 4:41:43 PM CHAIR WILSON turned to invited testimony on SB 53. 4:41:55 PM ANGELA HARRIS, representing self, Anchorage, Alaska, gave her invited testimony as follows: I was stabbed while returning borrowed items at the Loussac Library on Sunday afternoon, February 13, 2022. My family and I've lived in Alaska since 2005. I am a mother to four children, all of whom I've regularly taken to the library since they were young. I have two daughters serving in the United States Navy; one promoted me to grandma a month ago. And [I've] a senior and junior. I am serving on active- duty coast guard. My assailant, Corey Lee Ahkivgak, drove a dirty Leatherman knife into my spine, between L2 and L3, penetrating my spinal cord. Mr. Ahkivgak was located and arrested by APD later that afternoon while I was awaiting emergency surgery to remove the knife and the blood clots that damaged a nerve bundle in my spinal cord. The stabbing left me paralyzed from the waist down and with decreased sensation in my upper extremities. I was unable to live in my home until we made modifications at our house to become handicap accessible and safe for me to navigate. My parents flew in from the Lower-48 to live in our home with my two youngest children for eight months. I'm now on a long road to recovery. I attended physical therapy and occupational therapy five days a week for approximately nine months, and I see a counselor no less than twice a week to help work through the PTSD of my assault. After the assault, I was unable to see or hug any of my family members due to the COVID protocol. I was left to deal with the physical, mental, and emotional impact on my own. To have one designated approved visitor after I was transferred to St. Elias Rehabilitation Center, we had to petition committee members to request access. After many declines and being subpoenaed by the Grand Jury, I requested to be discharged against the doctor's orders because I could no longer navigate the tragedy on my own. Eventually, the committee agreed to approve one visitor. The designated member was permitted to enter and exit the building only once a day. 4:44:35 PM MS. HARRIS continued: Take a moment to imagine sitting alone, left to process the absolute worst event in your life. Sepsis [indiscernible], as the knife was unclean, and your parents and your children can only see from a window. Worse than this, imagine that it's you on the other side of the window looking at your loved one wounded by a man who has been arrested on multiple occasions and released back into our community because the law has no provisions for him. Mr. Ahkivgak has a history of assaulting women. In 2018 he violently attacked his mother with a frying pan. He attacked two other women on December 10, 2021. He was declared incompetent and not restorable, and he was released back to the public on January 6, 2022. On February 10, 2022, he was arrested for trespassing. Thirty-eight days after his release, he stabbed me on February 13, 2022. He was declared incompetent, and he could be released back into the public after his next competency hearing in a few months. There's no longer a record of these assaults, and the courts have been very unclear on whether or not they maintain information on those cases that are dropped due to incompetence. Furthermore, I no longer have the right to know when he is released because I'm told it violates his HIPAA rights. We need improvements to the state's mental health system, particularly regarding violent offenders, and we need to close the loophole and current laws that allow people to commit violent crimes only to be released back into our community. We need to give victims more peace. 4:46:21 PM MS. HARRIS continued: As I work towards healing, it's difficult for me to live with the reality that my assailant could be released after the next 180-day hearing. I attended several block hearings, hearings where numerous cases are grouped and heard one after another when the issues are very similar. And I was appalled at how often the defense was able to get their clients released from custody simply because there's a waitlist for restitution, and it was too long, and it began to encroach upon the defendant's rights. I'm a firm believer that everything happens for a reason, and I know that Jesus would not have put me in this position if I couldn't handle it. With that being said, I intend to share my story while I continue to attend physical and occupational therapy appointments to physically heal with the hopes of reducing the amount of senseless violent assaults. Aaron, who was the main provider of our home was unable to work as he had to care for me to take me to and from my daily outpatient care appointments. The State offers no financial assistance to supplement his lost income, and because he was not considered a victim, he was not offered support for the trauma that he experienced by watching his partner of 12 years lay on the floor with a knife in her back. There's no reimbursement for items needed to assist victims in daily living. Victims for Justice has a $40,000 cap on services provided. I would have blown through that the first hour after my attack. If I were not on active duty with the United States Coast Guard at the time of my attack, I would have very limited resources and cannot imagine the ruins of other victims and what they've experienced. As the perpetrator, Mr. Ahkivgak has more rights, options, and resources at his disposal than I do as his victim. My attack is an example of why we need to be tougher in our laws and build out mental health facilities to get violent offenders the help that they need and to properly prosecute them once they're restored. API serves our entire state, yet they're operating on a very limited capacity with a maximum of 80 beds, and only 10 of those are designated for restoration. If the state of Alaska has a robust Mental Health Trust, where are the funds being allocated if not API? 4:48:37 PM MS. HARRIS continued: We must address the common element of inadequate mental health services for violent offenders and their victims. I just share with you my experience and navigation through this process. I share this with you and all fellow Alaskans to emphasize that we must close the loopholes that allow violent offenders to victimize more innocent Alaskans. It's currently up to the victims to pursue a civil commitment if their assailant has been released due to incompetence. Why hasn't the state taken on this responsibility? Not every victim has resources to heal themselves, much less pursue a civil commitment request against their assailant. I listened in on the block hearings, and I've heard victims plead with the courts to keep their attacker from being released, only to hear that they couldn't hold them because it exceeds a reasonable amount of time for them to get evaluated or treated. The moment an offender commits a criminal act against a fellow citizen, then their right of privacy should be outweighed by the victims, and the public's right to know because this is a public safety issue. SB 53, presented here today by Senator Claman, is an opportunity for you and your elected positions to make changes that are beneficial for all Alaskans, whether victim or offender. Senate Bill 53 is a good starting point, but I encourage each of you to learn more about the issues and find solutions to prevent what happened to me from happening to others. Without your support, my story will become normal for far too many Alaskans. My final question to all of you - Is my sequence of events going to be the new normal, or do you have the internal fortitude to support and pass this bill so there are less Alaskans presenting with the same scenario as I've lived? Thank you for your attention and your time. 4:50:38 PM SENATOR KAUFMAN thanked Ms. Harris for her testimony. 4:51:08 PM At ease. 4:52:02 PM CHAIR WILSON opened public testimony on SB 53. 4:52:32 PM MARK REGAN, Legal Director, Disability Law Center, Juneau, Alaska, testified in opposition to SB 53 but apologized on behalf of the system for what happened to Ms. Harris. He stated that if state officials had the capacity in places like the Alaska Psychiatric Institute and could have filed a civil commitment petition before the state deemed Mr. Ahkivgak incompetent to proceed, he would not have been released to the community, and the tragedy would not have happened. He stated that the problem is not loopholes in the system; rather, the state has not set up the system to deal with the problem. He said a particular part of the system's setup is the idea of competency restoration. API is not the right place for competency restoration because it participates in the overload at API. There are 80 beds at API, and ten are devoted to competency restoration. Competency restoration should not occur in jail and cannot happen at API because the ten beds are full. There are long waitlists of people in prison who have been found incompetent without a place to go through competency restoration. A positive outcome of this tragedy would be revising the competency restoration system allowing more people to receive treatment. The solution is not to impose mandatory civil commitment of up to five years. Had the system functioned correctly, the solution would have been for the state to file a petition for civil commitment. 4:56:23 PM CHAIR WILSON stated he has heard that people are using incompetency hearings as an easier way to get charges dropped because of the time constraints and limits on the Department of Law. He asked how many evaluations are on the waitlist and if more people are needed to handle the workload. He asked if it is possible for victims of attackers in civil commitment to be notified of their attacker's release, like the Victim Information and Notification Everyday system (VINELink). VINELink empowers survivors of convicted criminals. He stated he does not see it as a HIPPA violation because personal information is not released. 4:58:06 PM SENATOR CLAMAN replied that he would provide the committee with the number of people in restoration holds. He knows the number of people in sequential long-term civil commitments. His office is looking into options for notice requirements that do not run afoul of HIPPA. He stated his belief that while the state could not integrate notification of civil commitment release with the criminal system, other options could be available since civil commitment proceedings are not confidential. He asked if the committee would like the statistics on the current number of civil commitments. 4:59:35 PM CHAIR WILSON responded yes, and also the number of people in criminal commitments since the systems would be similar. 4:59:47 PM SENATOR CLAMAN stated that the Department of Family and Community Services had reported ten individuals with long-term civil commitments, and he provided their commitment dates. 5:01:09 PM CHAIR WILSON closed public testimony and held SB 53 in committee.