When Rights and Right Collide
Most of the time, deciding how to vote on the Senate Floor is easy. Roughly half or two-thirds of votes are common sense approaches to well-defined problems, and they pass unanimously. Sometimes it’s a little more difficult—the problem is thornier, and what a legislator considers a ‘good’ solution varies with their values. Those bills sometimes pass along party lines.
This week, the Senate Judiciary Committee moved out a third type of bill—Senate Bill 53. It’s one with intensely complex issues and serious drawbacks that go hand-in-hand with potential benefits.
SB 53 was drafted in response to an unprovoked stabbing at an Anchorage library. The man holding the knife had previously been found so severely disabled by mental illness that he was incompetent to stand trial for earlier assaults. I met with the victim of the library attack. Her strength, resilience, and kindness will bowl you over. Her life got flipped upside down, and filled with physical and emotional scars. Even still, she has compassion for her attacker as she works to close loopholes in Alaska law that let this to happen to her.
SB 53 proposes to close those loopholes by addressing two different but related systems that play a part in protecting the public and providing services to the mentally ill: competency and involuntary commitment.
When someone is accused of a crime they (or their lawyer) occasionally claim they’re so severely disabled by mental illness they can’t even understand the charges against them and lack the ability to help with their own trial. If the doctors agree, the accused goes through a “competency restoration” period, where mental health pros work to get the defendant functional enough to stand trial. It’s a tiny sliver of criminal cases, but it happens often enough that the ten competency restoration beds at Alaska Psychiatric Institute have a long wait list. Defendants do that waiting in jail. Once they get into API, there’s up to a year to get them back on their feet. If that doesn’t work, the charges are dropped.
SB 53 would add more competency restoration time, so someone could be in restorative treatment for almost two years. That’s helpful (although it will make the wait list longer.) But some folks don’t get better. If that person is legally incompetent and still dangerous, the involuntary commitment process is supposed to kick in. Today, it’s not exactly any one agency’s job to file for that. That creates a risk of someone who genuinely isn’t safe to be out in society just walking away. SB 53 fixes that by making sure the Department of Law files commitment proceedings when someone can’t be restored to competency, and poses a continuing danger to the public.
Here’s where it starts to get fraught.
The government can only lock you up when you haven’t been convicted of a crime for very limited reasons. That’s important. There are places in the world today where dissidents and malcontents disappear into jails or locked mental ‘hospitals’ without a trial. Not in America. Today, if you’re seriously mentally ill and pose an imminent risk of harm to yourself or others, a judge can order you committed for treatment. The burden of proving that you qualify is on the government. You get to have a lawyer and a full hearing. And the state can only hold you until you no longer pose that threat. Six months is the longest commitment period available. So every six months, if the state still thinks you’re an imminent danger, it has to prove it again.
Those things protect our freedom. But they also mean the victim of a senseless, brutal attack like the one at the Anchorage library gets a fresh notice every six months that the stabber might get out. That can be pretty traumatizing.
SB 53 would allow a commitment of up to five years at a time if a person has been charged with a felony-level crime against a person and has been found incompetent to stand trial. But unlike our 6-month commitments, the doctors couldn’t let you out if, in their medical judgment, you got better. They’d have to go to court and show you weren’t dangerous anymore. That’s a huge switch. And it’s a troubling one because it makes the commitment less about medical treatment and much more like a prison sentence—for someone who was never even tried.
If at some point during the five years a patient disagrees with the government’s decision that they’re dangerous, the bill lets the patient ask for a hearing. If the judge keeps you in, you wouldn’t be allowed to ask again for a year. But again, instead of the government having to show you’re still dangerous it would be your job to show you’re not.
I can’t think of any other situation in Alaska law where a person who was never convicted of a crime has to prove they’re not dangerous to make the government unlock the door. I worry that flies in the face of the U.S. and Alaska Constitutions.
This gets more complicated when we step back from the hypotheticals. Today, we’re not talking about potential abuses of the system. We’re talking about extremely sick people who have done serious harm. These are usually patients for whom there are no good options. Someone who can’t be restored to competency after a year of hospitalization usually isn’t able to take care of their own housing and other needs. Life on the streets is bitter and hard and often makes psychotic or schizoaffective symptoms worse. Medications for problems this bad often have side effects so miserable patients stop taking them. Some prefer the brutality of living rough.
It’s clear there is a problem. The legislature has a duty to work on fixing it—within the limits of the constitution. The balance of protecting public safety, personal rights, and victims’ rights is difficult to find. I’d welcome your thoughts on the best path forward.
