Legislature(1995 - 1996)
04/10/1996 01:30 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 321 CRIM DEFENDANT INCOMPETENT TO STAND TRIAL CHAIRMAN TAYLOR announced SB 321 was introduced as the result of an incident that occurred in his district, and a more recent incident that occurred in Anchorage. SB 321 provides for the commitment of mentally incompetent defendants. JOE AMBROSE, Chief of Staff to Senator Taylor, explained SB 321 was introduced to close a loophole in existing law that prevents the civil commitment of those ruled mentally incompetent to stand trial on criminal charges but 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 found incompetent to stand trial. If, at that point, the defendant is still incompetent, and is unlikely to become competent, he/she must be released from the criminal justice system. Commitment is then governed by the civil courts. The problem SB 321 is intended to correct is that some incompetent defendants cannot be picked up by the civil commitment procedures because while they may be mentally incompetent for criminal procedures, they are not mentally ill, as defined under laws governing civil procedures. Mental incompetency is determined under the law governing criminal procedures, and is based on a mental disease or defect. This is a much broader category than mental illness, as defined under the laws governing civil procedures. SB 321 changes the definition of mental illness, as it applies to civil commitments, so that incompetent criminal defendants, who pose a risk to others, can be civilly committed. This change would only apply to those who have already had due process protections under the criminal justice system. The Department of Law's fiscal note estimates this bill would apply to one or two cases per year. Number 055 With the committee's permission, an unidentified speaker, referred to as "Jeanne," testified via teleconference. JEANNE recounted an incident in which her daughter was sexually molested at a church event by a severely mentally retarded boy with violent tendencies. This incident was the fourth substantiated case of molestation by the boy. The boy's family was aware of the incidences yet continued to allow him to attend the church events for children. The victim's family reported the incident to the Anchorage Police Department and contacted the other three families whose children had been molested by the boy. CHAIRMAN TAYLOR asked if the police report resulted in a prosecution and the defendant was found to be incompetent due to severe mental retardation. JEANNE responded that she tried to get a restraining order on the boy but could not because he is not a family member. Police officers talked to the boy and his family and the boy spent two weeks in jail for vandalism and four charges of abuse of a minor child but the charges were dismissed because he is mentally retarded. The Constitution prohibits incarceration of mentally retarded people as it is a violation of their Sixth Amendment rights. API was not an alternative because the boy is not mentally ill. CHAIRMAN TAYLOR stated this person votes in every election. JEANNE verified that the boy does vote, his parents discuss the issues with him. He also buys alcohol, and has held a job with the Anchorage School District since the mid to late 1980s. CHAIRMAN TAYLOR clarified the boy held the job since 1989 but was dismissed several weeks ago after the Anchorage School District was informed of the substantiated cases. Number 191 LAURIE OTTO, Deputy Attorney General for the Department of Law, noted Chairman Taylor has identified a gap in the criminal justice system that needs to be fixed. She was informed on Monday that a first degree murderer is about to be released based on a similar gap in the statute. Although she acknowledged the problem, she did not believe SB 321 will solve the problem for the following reason. Over the past 30 years the system of institutionalization has been shaped by statutes, regulations, the Constitution, case law, and by the annual budgets of the agencies involved. There are two basic kinds of institutionalization: civil and criminal. There is some overlap between those two systems for people who commit crimes: legally insane people who are the responsibility of the Department of Health and Social Services; mentally ill people who are found guilty and are the responsibility of the Department of Corrections; and people who are found to be incompetent to stand trial. The last group is the subject of SB 321 and the source of the problem that exists in the criminal justice system. These cases are rare: of the 4,000 felony cases that get reviewed by prosecutors' offices every year, at most there is only a handful that raise legitimate competency issues - only three have been identified in the past three years. Most people found to be incompetent can become competent after a short period of time with medication or with training. The small number of cases in which the defendant is found incompetent to stand trial is often not only because of mental retardation but also brain damage. The murderer to be released also has Alzheimer's Disease. SB 321 would make these people subject to civil commitment. To civilly commit a person, the state must prove to a jury with clear and convincing evidence the person is mentally ill, and be either a danger to themselves or others, or be gravely disabled. The phrase "likely to cause serious harm to self or others" is defined in AS 47.30.915 (10)(b) as "poses a substantial risk of harm to others as manifested by recent behavior causing, attempting, or threatening harm, and is likely in the near future to cause physical injury, physical abuse, or substantial property damage to another person." By the time an incompetent defendant reaches the point of civil commitment, one year will most likely have lapsed. The defendant usually will have spent that time at API or another institutional setting. The civil commitment proceedings must be held at intervals of 30, 90 and every 180 days after that. In such situations the Department of Law has found it impossible to prove that a person is likely to cause serious harm to others based on recent behavior. Even if the person can be committed, other statutes allow the release of the person. AS 47.36.055 sets out the state's policy that mentally ill persons be held in the least restrictive setting possible which is often the community setting. AS 47.37.080 requires that a mentally committed person be released if the person in charge of the facility believes that he or she is no longer dangerous. This occurs without court action or notice to law enforcement. To comprehensively address the issue of incompetency, there would have to be many statutes and state policies amended. Those changes would also impact people other than those that need to be targeted. The Criminal Division of the Department of Law believes the problem is that the term "mentally incompetent" is not defined in statute. There are doctors who interpret it very narrowly and those rulings are upheld on appeal. There are doctors who apply it more expansively. DOL believes, for constitutional purposes, if a person is capable of voting, working, and has a driver's license, that person is competent to stand trial. If a doctor believes differently, based on no standards, the DOL has no effective means of persuading the court differently. DOL recommends the statute be amended with a tight, clear definition of mental incompetence. DOL is researching how other states have dealt with this problem. The problem with SB 321 is that to give people due process, jury trials must occur over short periods of time, and the defendant must be proved to be dangerous. That approach is both time consuming and expensive. DOL is in the process of drafting a new definition. Number 331 DERRILL JOHNSON, Program Administrator for Developmental Disabilities, stated DHSS believes SB 321 is well intended, but would prefer a long term fix for the problem. Individuals should suffer the consequences of their actions. In the developmental disability community, there is a service network that can provide supports for clients and their families. The better way to tighten the loophole is to find a better way to evaluate who is competent to stand trial. He offered to provide committee members with information on the types of support services DHSS offers to communities and families. CHAIRMAN TAYLOR commented he did not intend for this bill to result in a criminal sanction for a person who is not competent to be embroiled in that system, due to a finding under the Sixth Amendment. Instead he was hoping the DHSS would respond with a proposal to accommodate this individual in a secure setting so that the public could be assured that person will not be roaming the community unsupervised. If he intended to put these people in a penal institution, he would have redefined the definition of mental illness in criminal law. He asked if the DHSS was requesting a definition change that would lower the standard so that these people could be tried criminally and incarcerated. MR. JOHNSON replied the intent would be to place the people in an alternative arrangement with solid community support. He noted in this particular case, he will be meeting with the family in an attempt to design a system using community support for their son. This approach is based on DHSS' experience over the last five years and has been successful. CHAIRMAN TAYLOR stated the committee intends to move SB 321 out of committee and have the next committee work on proposed amendments. He asked DOL to submit the definition mentioned. Number 380 SENATOR GREEN asked if DHSS can require a family to participate in its programs before an incident occurs. She believed there should be a level of responsibility placed on the guardian. MR. JOHNSON replied DHSS does not have that authority because developmentally disabled clients are served on a voluntary basis. A guardian cannot force a client to participate either. DAVID MALTMAN, Director of the Governor's Council on Disabilities and Special Education commented most Council members are parents of developmentally disabled individuals and are concerned for the children and families who have been affected by this incident. However, the sense of outrage must be tempered by the fact that people with limited capacities, particularly people with developmental disabilities, are no more dangerous to children than anyone else. There is no evidence that men with mental retardation commit sexual assaults at a higher rate than other men in the general population, and are actually more likely to be victims of such behavior. Existing programs deal with difficult clients, and have done a fine job of supervision and monitoring. Had this abuser been enrolled, it is unlikely this incident would have occurred. There are waiting lists for these programs, however. Committing people to API will not solve the problem. The Council is very concerned about minimizing risks to the community. He asked the committee to allow more time to look at what other states are doing, and the services they provide. Senator Ellis arrived at 2:40 p.m. CHAIRMAN TAYLOR thanked Mr. Maltman and explained it was not his intent to cast dispersions at developmentally disabled people. He noted Senator Miller and he would like to work on this problem further. He suggested Mr. Maltman contact the State of Idaho for suggestions and information. MR. MALTMAN added the State of Vermont has a statute that addresses this problem for offenders with mental retardation which he would provide to committee members. Number 454 LYNN STIMLER, representing the ACLU, agreed with Ms. Otto's testimony. She was concerned the bill will miss the offenders it is intended to catch because the statute is premised on the assumption that people can be confined if competency can or will be restored. She believed that in the committee's rush to pass the bill to the Senate Rules Committee, the bill may target people it was not intended to include. CHAIRMAN TAYLOR asked Ms. Stimler to provide input on the definition to committee staff. Number 479 RICHARD RAINEY, Executive Director of the Alaska Mental Health Board, asked the committee to consider the fact that the bill could create a population new to the mental health system that would require services that are not available. Those services may come at the expense of existing services. The system that currently exists, and is envisioned for the future, is the result of a long and sometimes tortuous planning process involving mental health consumers, providers, and state agencies. API is a critical element in that system. If the mission of API is to provide tertiary care to mentally ill individuals who cannot be treated in their communities, he is concerned this change will involve taking resources from that program. CHAIRMAN TAYLOR asked Mr. Rainey if he agreed that only one or two people per year may fall into this category. MR. RAINEY replied there is some concern that the population will end up being larger. CHAIRMAN TAYLOR felt the individuals the bill is directed toward are fairly functional, and that small modifications to existing programs may be able to provide a higher level of security. MR. RAINEY stated he would not be as concerned if those people are not placed at API. DOROTHY PEAVEY, the Executive Director for Mental Health Consumers of Alaska, believes SB 321 would affect mentally ill people indirectly. SB 321 was introduced as a hasty response to an unfortunate situation. Persons with severe mental retardation with criminal tendencies need constant supervision. Such supervision can be provided in a psychiatric hospital or in long-term residential care, however both options are expensive and finite in availability. Community placement is a viable solution and several agencies have experience serving clients with such histories. She believed this population and guardians should be held responsible for criminal behavior. She urged the committee to find a solution that does not include civil commitment and utilization of resources that are already overcommitted. SENATOR MILLER moved SB 321 out of committee with individual recommendations. Senator Adams objected because he believed the Senate Judiciary Committee should at least define "mental incompetence" and review the fiscal note from API. The motion carried with Senators Taylor, Green and Miller voting "yea," and Senators Miller and Ellis voting "nay."