Legislature(1995 - 1996)
04/22/1996 01:35 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 321 - COMMIT MENTALLY INCOMPETENT DEFENDANT TAPE 96-56, SIDE B Number 1611 JOE AMBROSE, Staff to Senator Taylor came forward to testify on SB 321 as the sponsor's representative. He read the sponsor statement into the record. "Senate Bill 321 was introduced to close a loop-hole in existing law that prevents the civil commitment of those ruled mentally incompetent to stand trial on a criminal charge, but who still pose a danger to others. Under current law, the defendant in a criminal case can be committed for up to two 90 day periods if they have been found incompetent to stand trial. If, at that point, the defendant is still not competent and it appears they will not become competent, they must be released from the criminal justice system. Commitment at that point is governed by the civil courts. SB 321 originally proposed to change the definition of mental illness to allow for a civil commitment of these individuals. The Department of Law suggested that the law governing a determination of incompetency is the problem and the bill was amended in the Senate. As transmitted to the House, SB 321 addresses inappropriate applications of the mental incompetency standard. It seeks to assure that individuals who possess a sufficient degree of understanding of the criminal process will be held accountable for their criminal conduct." MR. AMBROSE explained that this legislation was driven by a situation in Anchorage where a retarded man has repeatedly molested small, young girls. Nothing has happened. This individual has been ruled incompetent to stand trial and there has been no way to commit him beyond the two 90 day holds. He understands that by introducing this legislation it's convinced this person's parents that they should get this retarded individual voluntarily committed to a community based treatment program. In the meantime, the Department of Law, Senators Taylor and Ellis agree that part of the problem is that it apparently doesn't take much to get an individual ruled incompetent to stand trial in Alaska. MR. AMBROSE stated that incidently there was a letter of intent related to this legislation which was supposed to be offered in the Senate. This was overlooked in committee. If the Judiciary Committee would consider adopting this letter of intent, this would make it very clear what the legislature is trying to do in this case. Number 1800 MR. AMBROSE cited another example of a 40 year individual in Ketchikan who was entering grocery stores, walking right up to women and groping them. This person was ruled incompetent to stand trial. He was at Alaska Psychiatric Institute (API) for 90 days, the court has now released him and the community has a difficult time understanding this. He stated that there needed to be some kind of a mechanism by which they can make this system work better. He noted that it was very difficult to explain to the mother of a five year old why the person who has molested their child is still walking the streets. CHAIRMAN PORTER commented that he had received a letter just today from a constituent with this same problem. Number 1869 MR. AMBROSE said initially they thought that the problem was with the definition of mental illness for civil commitment and that it didn't mesh with the definition of mental illness for incompetency. The problem with trying to correct this is that they really don't want to do simple commitments because the only option here is API. He noted that this was not where these folks belong. There are some excellent community based treatment programs for people who sexually offend and they can be taught that there are some parameters as to how they should behave. REPRESENTATIVE GREEN agreed with this measure whole-heartedly because while there is a problem with the offender, the victims that these people sexually assault have rights too. These rights supersede the fact that maybe this will cause an inconvenience to someone is not "altogether there." He certainly supports this. Number 1956 DEAN GUANELI, Chief Assistant Attorney General, Criminal Division, Department of Law testified on SB 321. He stated that this version of the legislation is significantly different from the original version in that it addresses a lot of the concerns that many agencies had with the original version. As the result of a recent U.S. Supreme Court opinion this particular revised version is constitutional. MR. GUANELI stated that there was one particular provision in this legislation that a number of people have expressed some concern about. Last week he received calls from the American Civil Liberties Union (ACLU) and the Public Defender Agency. Although, he ordinarily doesn't accede to their demands very often, there was one particular provision in the bill as it currently stands that with a minor modification to the language it would comport more with what Senator Taylor's comments on the floor of the Senate were and would satisfy some of these other entities. MR. GUANELI noted that many of the cases which raised these concerns, especially the one in Anchorage, involve people who are mentally retarded. When they are referred to API for treatment in order to make them competent, it's difficult if not impossible to make a mentally retarded individual any better. What's warranted is a program to deal with their specific needs since there is no treatment. These individuals are usually released with no conditions or supervision imposed on them by the system. He referred to page three, line 28 through 31 where listed were some of the factors to be considered in determining whether a person is mentally retarded to a point of having a mental disease or defect that allows them to be incompetent. He quoted this language as follows: "a person who has obtained a driver's license, has voted in an election, is able to maintain employment, or is competent to testify as a witness under the Alaska Rules of Evidence is considered to have sufficient intellectual functioning to adapt or cope with the ordinary demands of life." MR. GUANELI said there was a concern about this section raised in the Senate, Senator Taylor indicated that these were among the factors a court could consider. Mr. Guaneli didn't think that the specific language used here brought this point home clearly enough. Mr. Salemi from the Public Defender's office raised this point to Mr. Guaneli, as well as the ACLU. Mr. Guaneli suggested a language change to this section. MR. GUANELI used an example to illustrate the need for this change. Sometimes the kind of employment that a mentally retarded person might have is at a fairly low level, such as licking envelopes. He didn't know that being able to maintain this type of job makes someone competent to stand trial. If someone is able to pass a test to drive a car, he felt as though this was something the court should carefully consider to determine if someone is incompetent. MR. GUANELI also noted, voting in elections, that there are programs specifically designed to encourage mentally retarded people or people with low intellectual functioning to vote. He wasn't certain that the mere fact of voting in an election means someone qualifies. He suggested the following language in the place of the language already outlined. Number 2411 MR. GUANELI stated this change as a conceptual amendment for the record. This would be considered amendment number one. He suggested removing lines 28 to 31, on page 3 and replacing it with the following: "in determining whether a person has sufficient intellectual functioning to adapt or cope with the ordinary demands of life, the court shall consider whether the person has obtained a driver's license, is able to maintain employment or is competent to testify as a witness under the Alaska Rules of Evidence." TAPE 96-57, SIDE A Number 000 REPRESENTATIVE GREEN made a motion to adopt this conceptual amendment one as stated. There being no objection it was so moved. Number 033 REPRESENTATIVE FINKELSTEIN then suggested an amendment number two which would delete on page 2, lines 7 to 9 and offered that both sides can get various evaluations of the accused to submit to evaluations, but the difference here seems to be that the prosecution is able to force an evaluation and he wondered whether this was allowed under the constitution. Number 164 MR. GUANELI stated that the whole point of putting this clause in this legislation was that without it they would not be able to get a defendant to subject themselves to an evaluation. This requirement is needed. In ordinary criminal cases, if the person is claiming there isn't anything wrong with them, the prosecution can't make them be evaluated, but once they have put their mental condition into issue then at this point the only way the prosecution can gather any information is to subject them to some type of evaluation. Presently this is done through court order with a court chosen psychiatrist. The defendant themselves can go out and pick their own psychiatrist, but if the evaluation comes back negatively it never sees the light of day, if it's a favorable one then it gets submitted to court. The prosecutor, without this language, can only rely on the court chosen psychologist. This person from the state's point of view might not be the best to evaluate this particular defendant. This is why they suggested the language referenced by Representative Finkelstein. Number 268 REPRESENTATIVE GREEN asked if this in any way required a change to court rules. MR. GUANELI stated that no, it did not. Number 285 REPRESENTATIVE FINKELSTEIN asked what was wrong with the court choosing the psychologist or psychiatrist. MR. GUANELI stated that the court has a certain role in making judgments and evaluating evidence, but all parties operate in a adversarial system of justice. This adversarial system of justice is designed to work when both parties present evidence they choose to bring to the court. If the prosecution is unable to have it's psychiatrist evaluate the defendant, then the prosecution is forced to rely on a psychiatrist chosen by the defense and a psychiatrist chosen by the judge, neither one of which might adequately represent appropriate views. There are defense oriented and prosecution oriented psychiatrist and he hoped that the court would choose one in-between, but again this is a system where both sides ought to allowed to present the evidence they think is best. CHAIRMAN PORTER made the observation that the court would be more likely to appoint a neutral psychiatrist or psychologist if they knew that if they didn't, the prosecution could require that another be appointed at their request. REPRESENTATIVE FINKELSTEIN made the argument that if the court is making the decision of who to appoint they will most likely listen to the one they appointed. It seemed to him that they were setting up a system which didn't have any point to it. Whoever the court picks, this is the person they will base their decision on. Number 440 CHAIRMAN PORTER noted that when they say, "the court," they are talking about a lot of individuals and some of them have pretty pointed opinions in these areas. If there is something on this judge's record about this person which that judge can't overlook, unless he wants the hearing to be reversed, then it's unlikely that he will. MR. GUANELI stated that as a practical matter if the judge really does appoint someone which the state views as objective and neutral, the state ordinarily is not going to subject this person to a second opinion. There are psychiatrists and psychologists who they don't put as high a value on their opinion as others. There are some who are not well versed in this area of the law. Number 440 CHAIRMAN PORTER objected to the amendment as proposed by Representative Finkelstein and referred to it as amendment number two. A roll call vote was taken. Representatives Green, Toohey, Davis and Porter voted no. Representative Finkelstein voted yes. Representatives Bunde and Vezey were not present. Amendment number two failed. Number 570 REPRESENTATIVE FINKELSTEIN proposed an amendment number three which would strike from the original amendment number one the clause regarding employment. He stated that the reason for this was that "employment" as pointed out by Mr. Guaneli can be as limited to licking a stamp, scrubbing a floor, or incredibly menial tasks, he didn't think this should be a consideration. Representative Finkelstein suggested that they say something like "a high level job" instead. REPRESENTATIVE GREEN objected and stated that an employment situation would be something to consider, not necessarily as a series of things, any one of which could trigger a decision. CHAIRMAN PORTER noted that to say "meaningful employment" or "high level employment" begs a definition that they were not prepared to get into. REPRESENTATIVE FINKELSTEIN agreed and withdrew this amendment number three. Number 675 REPRESENTATIVE TOOHEY made a motion to move SB 321, Version C from the House Judiciary Committee with individual recommendations and attached fiscal notes as amended. There being no objection it was so moved.