Legislature(1995 - 1996)

04/22/1996 01:35 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                
 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               
 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                 
 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               
 "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.                                                                     

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