SB 53-COMPETENCY; INVOLUNTARY CIVIL COMMITMENTS  SB 53-COMPETENCY; INVOLUNTARY CIVIL COMMITMENTS  3:31:43 PM CHAIR WILSON announced the consideration of SENATE BILL NO. 53 "An Act relating to involuntary civil commitments." 3:32:57 PM SENATOR MATT CLAMAN, District H, Alaska State Legislature, Juneau, Alaska, sponsor of SB 53 said his office suggested changes to SB 53 and that Ms. Potter would provide a summary of changes. 3:33:14 PM EMMA POTTER, Staff, Senator Claman, Alaska State Legislature, Juneau, Alaska, provided an explanation of proposed changes from Senator Claman's office to SB 53 as follows: We are suggesting adding the crime of arson to the legislation. This change reflects suggestions our office received from the Criminal Division of the Department of Law. It is their belief that including the felony offense of arson, in addition to a felony offense against the person, is necessary for public safety. The suggested change includes conforming changes in Section 1, Section 2, and Section 4 of the legislation. There are two suggested changes to Section 4 of the legislation. The first change is the removal of the word "repeated" from Section 4, line 8. It is our intention that the provisions outlined in the legislation apply upon a person's first dismissal of a felony level offense against a person. The second change modifies Section 4(e). The subsection relates to the ability of individuals to petition for early release. The suggested change is to create a one-year limit on a new petition from the individual both after the initial order for involuntary commitment up to five years and a subsequent denial of a petition for early release. There are three suggested changes in AS 12.47.100. The first change is to add a requirement that requests for competency evaluation in AS 12.47.100 to be written requests. The second change allows the court to order defendants evaluated for competency at out-patient facilities while on bail. The third change states that when the psychiatrist or psychologist finds that the defendant is incompetent and the defendant is charged with a felony offense against the person or arson, the psychiatrist or psychologist may evaluation the defendant for involuntary commitment. The fourth change allows the court to order defendants treated for competency restoration at out- patient facilities on bail. Other changes to Title 12 include increasing the maximum time a person can be held for restoration competency from one year to two years, adding language that if a court dismisses the charges against a defendant for incompetence for a felony offense against a person or arson, the defendant may not be discharged until 72 hours after the court dismisses the charges. This is meant to allow time for the civil commitment petition to be filed. The final change for Title 12 is changing the number of evaluations by a psychiatrist or psychologist from two to one for the insanity defense. This will match the number of evaluations required for the insanity defense to the number of evaluations required in the process for both the evaluation for competency and involuntary commitment. The final group of changes to the legislation that we are proposing addresses alleged victim notice in the specific instance for an individual found incompetent to stand trial and related felony level offenses against the person or arson are dismissed. The current version of the bill creates a duty for the department of law to file a civil commitment petition upon the dismissal of felony level offenses against the person based on an incompetency finding. The first change is a process change and would require the Criminal Division to notify the Civil Division of the Department of Law within 24 hours of charges being dismissed in the situation that the bill addresses. The second change is also a process change, and states that the Civil Division shall file a petition for involuntary commitment within 72 hours of the dismissal of charges in the situation that the bill addresses. The third change is creating a right for the alleged victim in the dismissed criminal charges to receive notice of the time and place of any civil commitment proceeding of the courts finding, any civil commitment proceeding, including the length of time for which the respondent is committed, and of when the respondent is discharged from any civil commitment. 3:36:42 PM SENATOR GIESSEL said that in SB 53, page 2, line 12, the word "repeated" appears. She asked if it would also be removed. SENATOR CLAMAN replied that the intent is to remove all references to the word "repeated." 3:37:14 PM SENATOR DUNBAR noted that Senator Claman's office had conversed with the Criminal Division of the Department of Law regarding changes to SB 53. He asked Senator Claman if his office had considered the notional changes in Disability Law Center's letter. 3:37:53 PM SENATOR CLAMAN said he is always happy to talk with the Disability Law Center. The center has yet to schedule a meeting, but his office has worked successfully with the center in the past. He said he does not agree with their interpretation of SB 53 in all instances. He stated his belief that the center does not like the notional five-year commitment. He opined that other than dismissing SB 53, the only resolution the center would consider is returning to a six-month commitment process. 3:38:42 PM SENATOR DUNBAR asked if there would be a committee substitute for SB 53 rather than amendments. 3:38:54 PM CHAIR WILSON said that was correct. The committee previously ran out of time to talk about changes to SB 53. He wanted to allow the sponsor time to talk about the changes and receive community feedback before requesting a committee substitute. 3:39:14 PM SENATOR DUNBAR said he is uncomfortable adding arson to SB 53 because it is a novel bill that changes criminal law in response to a tragedy. He opined that changes to criminal law should be narrowly focused on a set of circumstances. He said he understands the Criminal Division's perspective because arson is dangerous; but so is drunk driving, which may kill more people on average than arsonists. He said that once crimes other than against people are included, a variety of crimes may fall into the dangerous category. There may be enough votes in favor of including arson, but he does not favor its inclusion in SB 53. 3:40:36 PM SENATOR CLAMAN said SB 53 will not suddenly create a massive number of people that will fall into a very narrow focus of incompetent, non-restorable people who reach a certain level of dangerousness. He said he does not think there is a history of felony DUI offenders being incompetent and non-restorable. He suggested Mr. Skidmore could explain why arson should be included in SB 53 along with the other felony crimes against a person. 3:42:10 PM JOHN SKIDMORE, Deputy Attorney General, Criminal Division, Alaska Department of Law, Anchorage, Alaska, said the division included arson in SB 53 because the elements of the crime, particularly arson in the first degree, require another person to be harmed or be at risk of harm. He said the same steps would not apply to someone with a DUI unless another person were injured, thereby making it a DUI with felony assault, which would be in the same conduct group listed in SB 53. He said that from his 25 years of practice, the most serious cases the division sees are homicides, sexual assaults, and arson. When released from care, individuals with mental health issues pose the greatest danger and risk to the public. Including arson in SB 53 is ultimately a policy call for the legislature to make. 3:43:52 PM SENATOR DUNBAR asked if it is correct to say felony arson should be included in SB 53 because the crime satisfies similar elements to a crime against a person, but for some reason, arson is not categorized as a crime against a person. 3:44:19 PM MR. SKIDMORE replied that the state codified arson in AS 11.46, property offenses. However, arson involves an element of danger or risk of danger to others which separates it from the type of conduct seen in most property crimes. The rationale is that setting fire to a structure places other human beings at risk of physical harm. That is why it makes sense from a policy perspective to include it in SB 53 with other crimes against a person. 3:45:09 PM SENATOR DUNBAR asked whether an arsonist would have to know someone was in the building before the crime could be classified as being against a person. Senator Dunbar compared the governor's bill on fentanyl distribution to arson. The governor is seeking additional penalties for fentanyl distribution. Distribution is not a crime against a person, but it is being categorized as one of the most dangerous crimes, and it is likely to result in the deaths of many people. He asked why felony arson is worse than fentanyl distribution. 3:45:52 PM MR. SKIDMORE responded that the nature of arson poses a risk to others and therefore does not require foreknowledge of someone in the building. The governor's bill on fentanyl distribution penalties addresses the crimes of manslaughter or homicide, which are AS 11.41 crimes. SB 53 would include AS 11.41 crimes because they are crimes against a person. He opined that simple distribution of drugs would not suddenly be a crime included in SB 53. However, when distribution of drugs causes the death of someone there are provisions in crimes against persons that apply. 3:47:00 PM SENATOR KAUFMAN said there is a boundary between operating with intent versus being incompetent to act with intent. He asked Mr. Skidmore to speak to intent and the topics mentioned. For example, he wondered how somebody would be a drug dealer via mental incompetence. He opined that drug dealing would require a certain competence that maybe drunk driving and arson would not. 3:48:13 PM MR. SKIDMORE said SB 53 addresses when an individual has engaged in conduct that would be considered criminal but for their inability to assist in their defense; this is the definition of incompetency. The state attempts to restore the person to competency. If restoration cannot occur, there are questions about whether a person meets the standards for civil commitment. Competency is not about a person's ability to engage in conduct. There are two elements to any criminal act, the actus reus which is the physical act, and mens rea which is the mental element. Competency is the ability to assist counsel in defending against accusations. The intent is the ability for someone to decide they will commit a particular action, which is not what incompetency necessarily addresses. 3:49:45 PM CHAIR WILSON held SB 53 in committee.