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J.K. v. State of Alaska (7/17/2020) ap-2670

J.K. v. State of Alaska (7/17/2020) ap-2670

                                                                       NOTICE
  

            The text of this opinion can be corrected before the opinion is published in the  

            Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

            errors to the attention of the Clerk of the Appellate Courts:  



                                              303 K Street, Anchorage, Alaska  99501
  

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                      IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



J.K.,  

                                                                                           Court of Appeals No. A-13372  

                                                Petitioner,                             Trial Court No. 1JU-18-00238 CR  



                                    v.  

                                                                                                          O P I N I O N  

STATE OF ALASKA,  



                                                Respondent.                                    No. 2670 — July 17, 2020  



                        Peti                                             

                               tion  for  Review  from  the  District  Court,  First  Judicial  

                        District, Juneau, Kirsten Swanson, Judge.  



                        Appearances:   Renee  McFarland, Assistant Public Defender,  

                                                                

                        and Beth Goldstein, Acting Public Defender, Anchorage, for the  

                        Petitioner.  Nancy R. Simel, Assistant Attorney General, Office  

                                                                                                          

                        of  Criminal  Appeals,  Anchorage,  and  Kevin  G.  Clarkson,  

                              

                        Attorney General, Juneau, for the Respondent.  



                        Before:   Allard, Chief Judge, and Wollenberg and Harbison,  

                                                                 

                        Judges.  



                        Judge ALLARD.  



                        A criminal defendant is incompetent to stand trial when, as a result of a                                                         



mental disease or defect, the defendant is “unable to understand the proceedings against                                                        


----------------------- Page 2-----------------------

                                                                                                            1  

the defendant or to assist in the defendant’s own defense.”                                                     It is a violation of due            



                                                                                                       2  

process to try a defendant who is incompetent to stand trial.                                                                                     

                                                                                                          When a defendant has been  



                                                                                                                                                        3  

                                                                                                                                                            

found to be incompetent, the trial court is required to stay the criminal proceedings. 



                                                                                                                                    

Under  AS  12.47.110(a),  a  trial  court  has  the  authority  to  commit  an  incompetent  



                                                                                                                                           

defendant “to the custody of the commissioner of health and social services” for up to  



                                                                                                                                    

90 days in an effort to restore the defendant to competency.  This initial commitment  



                                                                                                                                             4  

                                                                                                                                                

period is mandatory in all felony cases but discretionary in misdemeanor cases. 



                                                                                                                                          

                        The only facility that currently provides competency restoration treatment  



                                                                                                                                                      

in the State of Alaska is the Alaska Psychiatric Institute (API), which is administered by  



                                                                                                                                        

the Department of Health and Social Services.  For some time, API has had significant  



                                                                                                                                            

capacity issues, with only ten beds available in their forensic unit.  As a result, waitlists  



                                                                                                                                     

have developed, and incompetent defendants who have been committed for competency  



                                                                                                                                                            

restoration are instead remaining in jail for long periods of time awaiting transfer to API.  



      1     AS 12.47.100(a); see also Dusky v. United States, 362 U.S. 402, 402 (1960) (per  



                                                                                                              

curiam) (holding that the constitutional standard for competency to stand trial is whether the  

                                                                     

defendant has “sufficient present ability to consult with his lawyer with a reasonable degree  

      

of rational understanding — and whether he has a rational as well as factual understanding  

of the proceedings against him”).  



      2     See, e.g., Medina v. California , 505 U.S. 437, 439 (1992); Diggs v. State, 274 P.3d  

                                                

504, 505 (Alaska App. 2012).  



      3     AS  12.47.110(a)  (“When  the  trial  court  determines  by  a  preponderance  of  the  

                                                                                                                                                     

evidence, in accordance with AS 12.47.100, that a defendant is so incompetent that the  

                                                                                                                       

defendant is unable to understand the proceedings against the defendant or to assist in the  

defendant’s own defense, the court shall order the proceedings stayed . . . .”).  



      4     AS 12.47.110(a).  



                                                                         – 2 –                                                                    2670
  


----------------------- Page 3-----------------------

These delays in obtaining competency restoration treatment raise serious due process                                                  



                5  

concerns. 



                                                                                                                               6  

                                                                                                                                           

                       The  current  case  involves  an  incompetent  defendant,  J.K.,                                           who  was  



                                                                                                                                        

charged with a misdemeanor and committed to the custody of the Department of Health  



                                                                                                                              

and Social Services for competency restoration treatment under a 90-day commitment  



                                                                                                                                                    

order.  J.K. was placed on a waitlist and remained in jail pending admission to API.  



                                                                                                                                               

When it became clear that the 90-day order was likely to expire before J.K. could be  



                                                                                                                                

transferred to API, J.K.’s defense attorney moved to dismiss the case in the furtherance  



                                                                     

of justice.  The district court denied this motion.  Later, after the 90-day order expired  



                                                                                                                                                 

— with J.K. still in jail and still on API’s waitlist — J.K.’s defense attorney moved a  



                                                                                                                                               

second time to dismiss the case.   This time, the attorney argued that J.K.’s right to  



                                                                                     7  

                                                                                                                                               

                                                                                       was being violated by the delay in  

substantive due process under Jackson v. Indiana 



                                                                                                                                            

receiving treatment and that the proper remedy for this constitutional violation was  



                                                                                                                                  

dismissal without prejudice.  At the urging of the prosecutor, however, the trial court  



                                                                                                                                                    

entered a second 90-day commitment order and ultimately denied the motion to dismiss.  



                                                                                                                                 

                       In response, J.K.’s attorney filed a petition to this Court, seeking immediate  



                                                                                                                                          

review of the trial court’s ruling.  Instead of filing a response to the petition, the State  



                                                                                                                                          

responded by dismissing J.K.’s case without prejudice under Alaska Criminal Rule  



                                                                                                                                        

43(a)(1).  Although J.K.’s case was now moot, we granted the petition under the public  



                                                                         8  

                                                                                                                                                

interest exception to the mootness doctrine.                                 We now hold that the prolonged delay in  



      5    See Jackson v. Indiana, 406 U.S. 715 (1972).  



      6    We use initials to protect J.K.’s privacy.  



      7    Jackson v. Indiana , 406 U.S. 715 (1972).  



      8    See  State v. Roberts,   999 P.2d 151, 153 (Alaska App. 2000) (“The public interest  



exception requires the consideration of three m                             ain factors:  (1) whether the disputed issues  

                                                                                                                             (continued...)  



                                                                     – 3 –                                                                 2670
  


----------------------- Page 4-----------------------

obtaining   competency   restoration   treatment   violated   J.K.’s   right   to   substantive   due  



process and required dismissal without prejudice of J.K.’s criminal case.                                                                                 



              Factual background                           



                            In March 2018, J.K. was arrested and charged with fourth-degree fear                                                                             



                                                  9  

assault, a misdemeanor.                                                                                                                                                           

                                                      The charge was based on an incident at a Juneau restaurant in  



                                                                                                                                                                                        

which J.K. allegedly approached another patron and threatened her with a butter knife.  



                                                                                                                                                                          

At  arraignment,  it  was  clear  that  J.K.  had  serious  mental  health  issues;  the  court  



                                                                                                                                                                                  

questioned whether “there might be a Title 47 issue” and stated that “in an abundance of  



                                                                                                                                                                              

caution,” it would require a “Title 47” before J.K.’s release — a consideration that was  



                                                   

never addressed again.  



                                                                                                                                                                              

                            (Title 47 governs the civil commitment of persons who are mentally ill and,  



                                                                                                                                                                               

as a result of that condition, are likely to cause harm to themselves or others, or are  



       8      (...continued)  



are capable of repetition, (2) whether the mootness doctrine, if applied, may cause review of  

                                                                                                                                                       

the  issues  to  be  repeatedly  circumvented,  and  (3)  whether  the  issues  presented  are  so  

                                                                                                                                                                         

important to the public interest as to justify overriding the mootness doctrine.” (quoting  

                                                                                            

Krohn v. State Dep’t. of Fish & Game, 938 P.2d 1019, 1021 (Alaska 1997))).  



       9  

                                                                                              

              AS 11.41.230(a)(3). J.K. was initially charged with third-degree assault (AS 11.­ 

41.220(a)(1)(A)), which was reduced to fourth-degree assault at arraignment.  



                                                                                      – 4 –                                                                                 2670
  


----------------------- Page 5-----------------------

                                            10  

gravely disabled.                                Thiscivil               procedurefor                        involuntary commitmentisindependentfrom                                                              

any criminal proceedings that may have been instituted.                                                                                         11     

                                                                                                                                                   )  



                                                                                                                                                                                                             

                                  J.K.  was appointed  an  assistant public  defender.                                                                                   The assistant public  



                                                                                                                                                                                                                        

defender filed an unopposed motion for a competency evaluation, which was granted by  



                                                                                                                                                                                                                       

the court. By the time the evaluation was submitted (approximately three weeks after the  



                                                                                                                                                                                                                   

60-day deadline set by the court), J.K. had already been in custody for 143 days.  



                                                                                                                                                                                                                

                                  Theforensicpsychologist who conducted theevaluation, Dr. DiannaRehn,  



                                                                                                                                                                                                                        

had difficulties with the evaluation.   J.K. is Korean and has  limited  proficiency in  



                                                                                                                                                                                                        

English.                   Dr.  Rehn  attempted  to  interview  J.K.  twice  —  the  second  time  with  an  



                                                                                                                                                                                                                    

interpreter — but J.K. was continually shouting at the interpreter.  The interpreter also  



                                                                                                                                                                                                                                 

stated that J.K. was speaking an “atypical” form of Korean that was mostly “gibberish.”  



         10      See AS 47.30.700-.915 (authorizing involuntary commitment pursuant to specified   



procedures for those persons who are “mentally ill” and, as a result, are “gravely disabled”                                                                                                           

or “likely to cause serious harm” to themselves or others);                                                                                           see also  AS 47.30.915(9)(B)  

(defining “gravely disabled” as “a condition in which a person as a result of mental illness   

will, if not treated, suffer or continue to suffer severe and abnormal mental, emotional, or                                                                                                                             

physical distress, and this distress is associated with significant impairment of judgment,   

reason, or behavior causing a substantial deterioration of the person’s previous ability to                                                                                                                              

function independently”); AS 47.30.915(12)(A),(B) (defining “likely to cause serious harm”   

as posing “a substantial risk of bodily harm to that person’s self, as manifested by recent                                                                                                                    

behavior causing, attempting, or threatening that harm” or “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”); AS 47.30.915(14) (defining “mental illness” as “an organic,  

mental, or emotional impairment that has substantial adverse effects on an individual’s ability                                                                                   

to exercise conscious control of the individual’s actions or ability to perceive reality or to                                                                                                                     

reason or understand”).  



         11      In re Hospitalization of Linda M. , 440 P.3d 168, 173 (Alaska 2019) (noting that  

                                

incompetency to stand trial and mental illness for purposes of civil commitment coexist and  

                                                                                                                                                       

that commitment to treat these two conditions may be sequential, concurrent, or overlap if  

                                                                                                                               

each is independently justified).  



                                                                                                         –  5 –                                                                                                    2670
  


----------------------- Page 6-----------------------

                                            Dr. Rehn reported that J.K. was not doing well in custody and that he had                                                                                                                                                         



been transferred to the jail’s acute mental health unit.  J.K. was noncompliant with his                                                                        



psychotropicmedicationsand                                                                     was exhibiting bizarrebehavior,including walking around                                                                                                              



naked, reacting to internal stimuli, speaking gibberish, and barking.                                                                                                                                                                 J.K. refused to                              



shower and was “malodorous.” He had also developed an eye infection after placing his                                                                                                                                                                                            



fingers in                        his  rectum and                                          then   in   his eye.                                    J.K. refused                                 any   treatment for                                           this eye   



infection.   



                                            Dr. Rehn diagnosed J.K. with “an unspecified schizophrenia spectrum or                                                                                                                                                                 



other psychotic disorder,” and she concluded that he was incompetent to stand trial —                                                                                                                                                                                             



that is, she found that J.K. lacked the capacity to understand the proceedings against him                                                                                                                                                                                    



                                                                                                         12  

or to assist in his own defense.                                                                                                                                                                                                                     

                                                                                                                    The doctor opined that treatment with psychiatric  



                                                                                                                                                                                                                                                                             

medications would “likely improve [J.K.’s] symptoms,” but it was “unclear [if] this  



                                                                                                                                                                                                                                                                          

improvement would restore [J.K.] to competency.”  Dr. Rehn further opined that it was  



                                                                                                                                                                                                                                                                                 

“highly  unlikely”  that  J.K.  could  be  restored  to  competency  if  he  continued  to  be  



                                                                                                                                                                                                                                                                

noncompliantwithhispsychotropicmedications. Shealso noted that restoration services  



                                                                                                                                                                                                                 

were likely to be made more difficult by J.K.’s limited English.  



                                                                                                                                                                                                                                                                   

                                            A status hearing regarding the competency evaluation was held on August  



                                                                                                                                                                                                                                                                                

 14, 2018.  By the time of the hearing, J.K. had already served 149 days in custody.  



                                                                                                                                                                                                                                                                                

                                            At the hearing, the trial court found J.K. incompetent to stand trial, and the  



                                                                                                                                                                                                                                                                       

court ordered J.K. to be committed to API for competency restoration treatment under  



                                                                                                                                                                                                                                                                       

AS  12.47.110(a).                                                The  trial  court  acknowledged  that  it  was  not  required  to  order  



                                                                                                                                                                                                                                                                                     

competency restoration treatment in J.K.’s case because he was only charged with a  



           12         AS 12.47.100(a) (defining incompetency to proceed as when a defendant, “as a result   



of mental disease or defect, . . . is unable to understand the proceedings against the defendant     

or to assist in the defendant’s own defense”).  



                                                                                                                                     –  6 –                                                                                                                                 2670
  


----------------------- Page 7-----------------------

                                                                  13  

misdemeanor.                                                               But the court justified its decision to order treatment on the ground that                                                                                                                                                                                                                                           



J.K.  would likely be a danger to himself and to others if released or, “at the very least,                                                                                                                                                                                                                                                                      



gravely disabled.”                                                                       The court did not address the possibility of a dismissal without                                                                                                                                                                                                                   



prejudice and civil commitment under Title 47.                                                                                                                                                                                



                                                              The trial court committed J.K. to the custody of the Department of Health                                                                                                                                                                                                                                           



and Social Services (the department that administers API) for a period not to exceed 90                                                                                                                                                                                                                                                                                                               



days.  The written order was signed the day after the hearing — on August 15 — and                                                                                                                                                                                                                                                                                                              



distributed on August 21.                                                                                                



                                                              On September 6, API notified the court that its forensic beds were full and                                                                                                                                                                                                                                                        



that J.K. was number twenty-six on the waitlist.                                                                                                                                                                                 API further informed the court that it                     



was “likely” that the delay in admitting J.K. to API would account for “most, if not all”                                                                                                                                                                                                                                                                                                        



of the 90-day commitment order.                                                                                                                              During the delay, J.K. would remain in jail without                                                                                                                                                             



any competency restoration treatment.                                                                                                                                                   



                                                              The trial court held a status hearing on September 12 to discuss the delay                                                                                                                                                                                                                                                



in obtaining treatment.                                                                                      The defense attorney noted that J.K. was only charged with a                                                                                                                                                                                                                                   



misdemeanor, that he had already been in custody for almost six months, and that there                                                                                                                                                                                                                                                                                                    



was a low likelihood that he was even restorable to competency.                                                                                                                                                                                                                                            The trial court agreed                                                 



that the forensic report indicated                                                                                                                               that Dr.                                  Rehn “didn’t really                                                                               have a high                                                   level of   



confidence   that   things   were   going   to   improve,”   and,   in   fact,   “[J.K.]   was   getting  



                13             See  AS 12.47.110(a) (“When the trial court determines by a preponderance of the                                                                                                                                                                                                                                                                                     



evidence, in accordance with AS 12.47.100, that a defendant is so incompetent that the  

defendant is unable to understand the proceedings against the defendant or to assist in the   

defendant’s own defense, the court shall order the proceedings stayed, . . . and shall commit   

a defendant charged with a felony, and may  commit a defendant charged with any other   

crime, to the custody of the commissioner of health and social services or the commissioner’s                                                                                                     

authorized representative for further evaluation and treatment until the defendant is mentally  

competent to stand trial, or until the pending charges against the defendant are disposed of  

according to law, but in no event longer than 90 days.” (emphasis added)).  



                                                                                                                                                                                              –  7 –                                                                                                                                                                                          2670
  


----------------------- Page 8-----------------------

progressively worse.”  The court called API to help “decide where [to] go for [J.K.] at                                                                                                 



this point,” and it scheduled another hearing on the matter for the following week.                                                                                                  



                             The next day, on September 13, J.K.’s defense attorney filed a motion to   



dismiss under Alaska Criminal Rule 43(c).                                                           Criminal Rule 43(c) grants trial courts                                   



                                                                                                                                                          14  

                                                                                                                                                                           

limited authority to dismiss criminal cases in “furtherance of justice.”                                                                                         The defense  



                                                                                                                                                                                     

attorney argued that dismissal of J.K.’s charge was the appropriate remedy given the  



                                                                                                                                                                            

delay that had already occurred, the delay that was anticipated to occur, and the amount  



                                                                                                                                                                                     

of time J.K. had already spent in custody.  The defense attorney pointed out that the  



                                                                                                                                                                                  

maximum penalty for a class A misdemeanor is one year and that J.K. would likely have  



                                                                                                                    

served that time by the time he was admitted to API.  



                                                                                                                                                                                 

                             The State filed an opposition to J.K.’s motion to dismiss, arguing that there  



                                                                                                                                                                                     

was no injustice because delay was a normal part of the process.   According to the  



                                                                                                                                                                      

prosecutor, “[i]t does not work an injustice to the defendant if the [statutory] procedure  



                                                                                                                                                                                      

[of  determining  a  defendant’s  competency  to  stand  charges  and  restoring  him  to  



                                                                                                                                                                                  

competency] is followed, regardless of the status of negotiations or the length of time  



                                                                                                

[J.K.] may face if convicted of this crime.”  



                                                                                                                                                                                     

                             The next status hearing was held on November 6.   At that hearing, the  



                                                                                                                                                                                       

defense attorney inquired when the trial court would rule on the pending motion to  



                                                                                                                                                                                 

dismiss and noted that J.K. had been in custody for 233 days — “nine days away from  



        14     The exercise of a trial court’s discretion under Alaska Criminal Rule 43(c) can be with     



or  without  prejudice  depending  on  the  circumstances.     Cf.   AS  12.47.110(b)  (ordering  

dismissal of charges without prejudice at the end of specified commitment periods);                                                                                          Jordan  

v. State, 407 P.3d 499, 501 (Alaska App. 2017) (explaining that Criminal Rule 43(a)(1),   

authorizing dismissal of charges by the prosecuting attorney, was “addressed to dismissals  

without prejudice” (emphasis removed)).  



                                                                                         –  8 –                                                                                   2670
  


----------------------- Page 9-----------------------

                                                                                                                           15  

  a year with good time.”                                                                                                           The trial court explained that it still needed more information,                                                                                                                                                                                                  



  and   it   again   called   API   for   an   update   regarding   J.K.’s   status  on   the   waitlist.     A  



 representative from API stated that J.K. was now number eight on the waitlist, but the  



 representative still could not say when J.K. would actually be admitted for competency                                                                                                                                                                                                                                                                                                                 



 restoration treatment.                                                                                             



                                                                        The trial court expressed                                                                                                                 its discomfort with                                                                                          “keeping   [J.K.] in                                                                                    limbo  



  forever,” but did not rule on the pending motion to dismiss at that time.                                                                                                                                                                                                                                                                                                                          Instead, the   



 court scheduled another status hearing the following week for the parties to make oral                                                                                                                                                                                                                                                                                                             



  arguments.   



                                                                       At that hearing, held November 14, the defense attorney asked the court to                                                                                                                                                                                                                                                                                                            



 rule on the pending motion to dismiss, pointing out that J.K. had already spent 241 days                                                                                                                                                                                                                                                                                                                                                      



 incarcerated, and that API still could not guarantee his admission within any specific                                                                                                                                                                                                                                                                                                                                       



 time period.                                                      



                                                                        The prosecutor argued (erroneously) that the court had no authority to                                                                                                                                                                                                                                                        



 dismiss   the   case.     The   prosecutor  acknowledged   that   “the   status   quo   right   now   is  



 certainly not the best of all worlds,” but she asserted that continued detention in jail is   



 “a better option in terms of safety to [J.K.], safety to the community, than the alternative                                                                                                                                                                                                                                                                                                                   



 which is to release him with absolutely no plan and no safeguards in place to protect him                                                                                                                                                                                                                                                                                                                                                         



  and the community.”                                                                                             The trial court again expressed frustration that J.K. was sitting in                                                                                                                                                                                                                                                                       



jail and likely “getting worse,” but questioned whether “cutting him loose does a lot of                                                                                                                                                                                                                                                                                                                                                                    



 good.” The option of seeking civil commitment under Title 47 was again not mentioned                                                                                                                                                                                                                                                                                                                           



 or discussed.                                                           



                   15               See   AS   33.20.010(a)  (explaining  the  good  time  calculation,  where  a   defendant  



 “sentenced to a term of imprisonment that exceeds three days is entitled to a deduction of   

 one-third of the term of imprisonment rounded off to the nearest day if the prisoner follows                                                                                                                                                                                                                                                                      

 the rules of the correctional facility in which the prisoner is confined”).  



                                                                                                                                                                                                                         –  9 –                                                                                                                                                                                                                   2670
  


----------------------- Page 10-----------------------

                             Two days later, on November 16, the trial court summarily denied J.K.’s           



motion to dismiss in a written order. The trial court later explained that it had denied the                                                                                        



motion “in part because we didn’t really have a place for [J.K.] to go.”                                                                                   



                             Ten days later, on November 26, J.K.’s defense attorney filed a second                                                                       



motion to dismiss.                         The motion cited to                           Jackson v. Indiana                        , and asserted that J.K.’s                



continued detention due to the limited capacity at API violated his right to substantive                                                         



                                                                                                               16  

due process under the state and federal constitutions.                                                                                                                   

                                                                                                                    The motion also cited to multiple  



                                                                                                                                                                            

cases fromother jurisdictions in which courts had held that similar lengthy delays violate  



                                                    17  

                                                                                                                                                             

substantive due process.                                  The motion contended that the remedy for the constitutional  



                                                                                                                      

violation was dismissal of the case without prejudice.  



                                                                                                                                                                        

                             The  prosecutor  filed  an  opposition  to  the  second  motion  to  dismiss,  



                                                                                                                                                                                  

reiterating her argument that the process of determining J.K.’s competency to stand trial  



                                                                                                                                                                                  

and  restoring  him to  competency  “contemplates  a  delay.”                                                                         The  prosecutor  did not  



                                                                                                                                                                                   

respond to the constitutional arguments made in the second motion to dismiss; nor did  



                                                                                                           

she address the out-of-state authority cited in the motion.  



        16    See Jackson v. Indiana, 406 U.S. 715, 738 (1972) (“At the least, due process requires  



that the nature and duration of commitment bear some reasonable relation to the purpose for  

                                                                                                                

which the individual is committed.” (emphasis added)); see also Oregon Advocacy Ctr. v.  

Mink , 322 F.3d 1101, 1122 (9th Cir. 2003) (applying Jackson  to restorative competency  

                                                                                                                                    

services to hold that substantive due process prohibits the state from detaining “incapacitated  

                                                                                                                                         

criminal defendants in jail for weeks or months . . . because the nature and duration of their  

                                                                                                                                                                                 

incarceration bear no reasonable relation to the evaluative and restorative purposes for which  

courts commit those individuals”).  



        17    See, e.g., Trueblood v. Washington State Dep’t of Soc. &Health Servs., 822 F.3d 1037  

                                                                                                                                 

(9th Cir. 2016); Mink , 322 F.3d 1101; Disability Law Ctr. v. Utah, 180 F. Supp. 3d 998 (D.  

                                               

Utah 2016);  Terry ex rel. Terry v. Hill, 232 F. Supp. 2d 934 (E.D. Ark. 2002); Powell v.  

Maryland Dep’t of Health , 168 A.3d 857 (Md. 2017); Lakey v. Taylor , 435 S.W.3d 309 (Tex.  

App. 2014); State v. Hand, 401 P.3d 367 (Wash. App. 2017).  



                                                                                       –  10 –                                                                                  2670
  


----------------------- Page 11-----------------------

                         On December 17, the same day that J.K.’s attorney filed his reply to the                                                           



State’s opposition,                   the trial court issued an order extending J.K.’s commitment for                                                      

competency restoration treatment for another 90 days.                                                18                                                        

                                                                                                          The order also directed that a  



                                                                                                                                                           

status hearing be calendared for January 3, 2019.  When that status hearing was not  



                                                                                                                                                    

calendared, J.K.’s attorney filed another request seeking a ruling on the second motion  



                      

to dismiss.  



                                                                                                                                                                   

                         But the court did not issue a ruling  on the second motion to  dismiss.  



                                                                                                                                                         

Instead, the court held another status hearing on January 23. At this point, J.K. had been  



                                                                                                                                                

in custody without access to competency restoration treatment for 311 days.  



                                                                                                                                                            

                         At the January 23 hearing, the court indicated that it intended to deny the  



                                                                                                                         

second motion to dismiss, but that it also intended to make sure that J.K. was not held  



                                                                                                                                                     

for longer than 365 days — the maximum sentence for a class A misdemeanor.  



                                                                                                                                                       

                         On January 29, 2019, the trial court entered two orders.  The first order  



                                                                                                                                           

reiterated the December 17 order committing J.K. “for another 90 days for a competency  



                                                                                                                                                             

restoration program.”  But the order also made clear that the commitment would end on  



                                                                                                                                                          

March 18, 2019, the date by which J.K. would have been in custody for 365 days.  The  



                                                                                                                                                   

second order denied J.K.’s second motion to dismiss, noting that J.K. was now number  



                                                                                                                                 

two on the waitlist.  The order also directed J.K. to be released from custody if he was  



                                                                                          

not restored to competency by March 18, 2019.  



                                                                                                                                                            

                         On February 1, 2019, J.K.’s defense attorney filed an expedited petition for  



                                                                                                                                                           

review with this Court.  This Court granted expedited consideration of the petition and  



                                                                                                                                                         

ordered the State to respond on an expedited basis.  In response, the State initiated civil  



                                                                                                                                                          

commitment proceedings against J.K. under Title 47 and dismissed J.K.’s criminal case  



                                                                                                   

without prejudice, thereby rendering this case moot.  



      18    See AS 12.47.110(b).  



                                                                           –  11 –                                                                       2670
  


----------------------- Page 12-----------------------

                               This Court granted J.K.’s petition for review under the public interest                                                                              



exception to the mootness doctrine.                                                This decision now follows.                                        



               Substantive due process and the rights of criminal defendants who have                                                                                      

               been found incompetent to stand trial                                        



                              Under   AS   12.47.110(a),   a   trial   court   has   the   authority   to   commit   an  



incompetent defendant “to thecustody ofthecommissioner ofhealthand                                                                                                social services”  



for up to 90 days in an effort to restore the defendant to competency.                                                                                             As previously   



mentioned,  this  initial   commitment   period   is   mandatory   in   all   felony   cases   but  



                                                                                   19  

discretionary in misdemeanor cases.                                                     



                                                                                                                                                                                     

                               This  initial  90-day  commitment  may  be  extended,  at  the  trial  court’s  



                                                                                                                                                                                                  

discretion, for another 90 days, provided that the defendant is improving and there is  



                                                                                                                                                                                           20  

                                                                                                                                                                                                  

good reason to believe that the defendant will probably soon be able to stand trial.                                                                                                              If  



                                                                                                                                                                                     

the defendant has not regained  competency  at the expiration  of the second  90-day  



                                                                                                                                                                                                

commitment order, the trial court is required to dismiss the case without prejudice —  



                                                                                                                                                                                                   

except in cases where the defendant is charged with a crime involving force against a  



                 21  

person.                                                                                                                                                                                        

                       If the defendant is charged with a crime involving force against a person, the  



                                                                                                                                                                                    

trial court retains the discretion to extend the commitment for an additional six months,  



                                                                                                                                                                                   

provided thecourt finds that: (1) “the defendant presents a substantial danger of physical  



        19     AS 12.47.110(a).  



        20     See AS 12.47.110(b); Jackson v. Indiana , 406 U.S. 715, 738 (1972) (explaining that,  



when a criminal defendant is committed on the basis of incompetency to stand trial, it must  

                                                                                                                                                         

be “determined that the defendant probably soon will be able to stand trial”).  



        21     AS 12.47.110(b).  



                                                                                            –  12 –                                                                                        2670
  


----------------------- Page 13-----------------------

injury to other persons”; and (2) “there is a substantial probability that the defendant will                                                                         



                                                                                                               22  

regain competency within a reasonable period of time.”                                                               



                                                                                                                                                                       

                           As a matter of substantive due process, an incompetent defendant may not  



                                                                                                                                                                   

be held “more than the reasonable period of time necessary to determine whether there  



                                                                                                                                                                          23  

                                                                                                                                                                               

                                                                                                                                                           

is a substantial probability that he will attain that capacity in the foreseeable future.” 



                                                                                                                                             

In other words, due process requires that a defendant be committed for competency  



                                                                                                                                                                  

restoration treatment only when there is good reason to believe that the treatment is likely  



                                                                                                                 24  

                                                                                                                                                                      

to restore the defendant to competency in the near future.                                                             “If it is determined that this  



                                                                                                                                                   

is not the case, then the State must either institute the customary civil commitment  



                                                                                                                                                                      

proceeding  that  would be required to commit . . . any other citizen, or release the  

defendant.”25  



                                                                                                                                                                     

                           Due process also requires that “the nature and duration ofcommitment bear  



                                                                                                                                                            26  

                                                                                                                                                                  

some reasonable relation to the purpose for which the individual is committed.”                                                                                  Thus,  



       22    Id.  



       23    Jackson , 406 U.S. at 738.  



       24    See Powell v. Maryland Dep’t of Health, 168 A.3d 857, 874 (Md. 2017) (“If the   



defendant is not restorable — i.e., not likely to become competent within the foreseeable   

future — the government must either release the defendant or institute civil commitment   

proceedings.”).  



       25    Jackson , 406 U.S. at 738.  



       26  

                                                                                               

             Id.  Due process governs other aspects of an incompetent defendant’s treatment as  

                                                                         

well.  For instance, if the competency restoration treatment includes forced medication, the  

                                                                                                                                                                       

defendant is entitled to a hearing under Sell v. United States, 539 U.S. 166 (2003).   An  

                                                                                                                                                            

incompetent defendant may not be forcibly medicated unless the court specifically finds that  

                                                                                                                                            

(1)  important  governmental  interests  are  at  stake;  (2)  involuntary  medication  will  

                                                                                                                                                    

significantly further those important governmental interests; (3) involuntary medication is  

                                                                                                                               

necessary  to  further  those  interests;  and  (4)  administration  of  the  drugs  is  medically  

                                                                                                                                                   (continued...)  



                                                                                 –  13 –                                                                            2670
  


----------------------- Page 14-----------------------

“even if it is determined that the defendant probably soon will be able to stand trial, his                                                        



                                                                                                                         27  

continued commitment must be justified by progress toward that goal.”                                                                       

                                                                                                                             In other words,  



                                                                                                                                     

a defendant who has been found incompetent and committed to competency restoration  



                                                                                                                28  

                                                                                                                                     

                                                                                                                     Instead, defendants  

treatment cannot languish in jail without access to the treatment. 



                                                                                                                                  

are entitled to a “reasonably timely” transfer to the facility that provides competency  



                                     29  

                                          

restoration treatment. 



      26    (...continued)  



appropriate, i.e., in the patient’s best medical interest in light of his or her mental condition.  

                                                                                                           

Sell, 539 U.S. at 180-82.  



      27  

                                                                                                                            

           Jackson , 406 U.S. at 738; see Carr v. State, 815 S.E.2d 903, 912 (Ga. 2018) (“No  

                                                                                                                

matter  how  short  the  duration  of  the  detention,  if  the  nature  of  the  confinement  is  not  

                                                                                                            

reasonably  related  to  the  government’s  purpose  of  accurately evaluating  the  individual  

defendant’s potential to attain competency, the detention is unconstitutional.”).  



      28    See  Lakey  v.  Taylor,  435  S.W.3d  309,  320  (Tex.  App.  2014)  (“An  incompetent  

                                                                                                                         

defendant’s prolonged detention cannot be ‘justified byprogress toward [the goal of restoring  

                                                                                                                                         

competency]’ if he is not receiving any competency-restoration treatment.” (alteration in  

                                                                     

original) (citation omitted)). We note that some jurisdictions have concluded that speedy trial  

                                                                                                                                                  

rights are also implicated by delays in obtaining competency restoration.  See, e.g., Craft v.  

                                                                                                                           

Superior Court, 140 Cal.App.4th 1533, 1545, 44 Cal.Rptr.3d 912, 920 (Cal. App. 2006)  

                                                                                                                                    

(“Because commitment and treatment are the intertwined rationales for suspending criminal  

proceedings against a mentally incompetent defendant, it follows that where there is no  

                                                       

commitment  and  no  treatment,  the  time  an  incompetent  defendant  spends  in  jail  is  

unnecessary and  implicates  not  only due  process,  but  also  counts  towards  a  finding  of  

                                                                                                                                      

prolonged  incarceration  under  the  state  constitutional  speedy  trial  guarantee.”  (citation  

                                                                                                            

omitted)).  We do not address this question here because it has not been raised.  



      29    Oregon Advocacy Ctr. v. Mink, 2002 WL 35578910, at *7 (D. Or. May 10, 2002)  

                                                                                                                                       

(unpublished), judgment entered , 2002 WL 35578888 (D. Or. May 15, 2002) (unpublished),  

                                                                                                                

aff’d, 322 F.3d 1101 (9th Cir. 2003), modified, 2020 WL 2465331 (D. Or. May 13, 2020)  

                                                                                                                                        

(unpublished) [hereinafter Mink District Order]; see also Powell, 168 A.3d at 874 (“Any  

                                                                                                                                      

delay in transferring that defendant to a designated facility pursuant to a commitment order  

                                                                                                   

must be reasonable in relation to the purpose of treating the defendant while protecting both  

                                                                                

                                                                                                                                 (continued...)  



                                                                      –  14 –                                                                  2670
  


----------------------- Page 15-----------------------

                                    The only facility that currently provides competency restoration treatment                                                                                                   



in Alaska is the Alaska Psychiatric Institute (API), an in-patient psychiatric facility with                                                                                                                                  



limited   bed   space.     Unlike   other   states,   Alaska   does   not   have   an   out-of-custody  



                                                                                         30  

                                                                                                                                                                                                                                  

competency restoration program.                                                                 Nor does it have adequate forensic beds to meet the  



                                                                                                           31  

                                                                                                                  

                                                                                       

demands of the criminal justice system. 



         29       (...continued)  



the defendant and the public.”).  



         30       W. Neil Gowensmith et. al.,                                                Lookin’ for Beds in All the Wrong Places:  Outpatient  



 Competency Restoration as a Promising Approach to Modern Challenges                                                                                                                        , 22 Psychol., Pub.  

Pol’y & L. 293, 296 & tbl.1 (2016) (providing data from 2014, where 36 states explicitly                                                               

allowed outpatient competency restoration while Alaska explicitly prohibited outpatient                                                                                            

competency restoration);                                           see also Carr, 815 S.E.2d at 916 (“To ensure that the nature of              

commitment to the department is appropriate for the particular defendant, the court should  

consider all relevant evidence and make a finding as to whether the evaluation required by  

 [Georgia’s competency statute] should be conducted on an inpatient or outpatient basis.”);  

id.  at 916-17 & n.17 (remanding and requiring the trial court in the first instance to exercise  

discretion “in deciding whether [the defendant] should be committed to the department’s     

custody for evaluation or should be evaluated on an outpatient basis” and instructing the                                                                              

court to consider whether the defendant should have been returned to release on bond and                                                                                              

whether the duration of his detention was unreasonable).  



         31       This systemic problem is the subject of a recent report to the Department of Health  

                                                                                                                                                                                                                         

and Human Services. See Agnew:Beck Consulting Inc., et. al, Forensic Psychiatric Hospital  

                                                         

Feasibility Study, at 5-6 (Feb. 1, 2019) available at http://dhss.alaska.gov/API/Documents/  

                                                                                                                                     

AdminChanges/ForensicPsychHospital_FeasibilityStudy_ExecutiveSummary_201907.pdf  

                                                                                                                                                                                                                                             

(last visited July 11, 2020) (stating that “Alaska’s forensic system is overloaded” and that  

                                                                                                                                                          

there is “a  need  to expand capacity for both competency evaluations and for providing  

                                                                                                                                                           

treatment for competency restoration”).  We note that this capacity problem was foreseen in  

                                                                                                                                                                                                   

2008  when  the  legislature  amended  AS  12.47.110  to  make  restoration  treatment  for  

incompetent defendants charged with felonies mandatory.  See Minutes of Senate Judiciary  

                                                                                                                                                                                                

Comm., Senate Bill 234, testimony of Ron Adler, CEO/Director, API, 2:44:30-2:44:56 p.m.  

                                                                                                  

(Feb. 29, 2008) (explaining that the proposed provisions of SB 234 “could cause capacity  

                                                                                                                                                                                                                    

issues in the future” and “could result in additional planning for changes in the facility or  

                                                                                                                                                                                                                                     

                                                                                                                                                                                                       (continued...)  



                                                                                                             –  15 –                                                                                                          2670
  


----------------------- Page 16-----------------------

                        In   the   current   case,   J.K.   was   charged  with   a   misdemeanor,   for   which  



commitment under AS 12.47.110(a) is discretionary rather than mandatory.                                                                   J.K. was   



committed under an initial 90-day order, but he was put on a waitlist and the 90-day                                                           



commitment order expired before he was transferred to API for competency restoration                                                     



treatment.     J.K.   asserts   that   the   lengthy   delay   in   obtaining  competency   restoration  



treatment   violated  his   right   to   substantive   due   process   under   the   state   and   federal  



                        32  

constitutions.                                                                                                                                      

                            TheStatenowacknowledgesthat J.K.’s constitutional rights“may”have  



                            

been violated.  



                                                                                                                                                  

                        Courts  in  other  jurisdictions  that  have  confronted  similar  delays  have  



                                                                                                                           33  

                                                                                                                                                  

consistently found that such delays violate substantive due process.                                                             Many of these  



      31    (...continued)  



                                                                                                                                         

additional facilities in the state” because “the forensic unit at API is typically full with a  

                                                                                                                                                

waiting list”); see also Fiscal Note 8 for SB 265, API, Behavioral Health, Dep’t of Health  

                                                                                               

& Soc. Servs. (Apr. 9, 2008) (“[I]f the current trend of increasing admissions to the Alaska  

                                                                                                                     

Psychiatric Institute continues, it will cause capacity issues that may have to be addressed at  

a later date.”).  



      32    See U.S. Const. amend. XIV; Alaska Const. art. I, § 7.  



      33    See, e.g., Terry ex rel. Terry v. Hill, 232 F. Supp. 2d 934, 944 (E.D. Ark. 2002)  



(holding that the average wait time of over six months for admission into the state hospital  

                                                                   

was “far beyond any constitutional boundary”); Mink District Order , 2002 WL 35578910,  

                                     

at *3-4, *6 (concluding that a 31.98-day average wait time for transport to the state hospital,  

                                                                     

with delays of up to 166 days, was a violation of due process); State v. Hand, 429 P.3d 502  

                                                                                                                                     

(Wash. 2018) (holding that the state violated the defendant’s substantive due process rights  

by detaining him for 76 days before providing competency restoration treatment); In re  

                                                                                                           

Loveton , 244 Cal.App.4th 1025, 1048, 198 Cal.Rptr.3d 514 (Cal. App. 2016) (holding that  

a trial court’s 60-day transfer deadline for defendants incompetent to stand trial “realistically  

                                     

places an outside limit on what is statutorily and constitutionally permissible”);  State v.  

                                                                                                                     

Kidder, 389 P.3d 664 (Wash. App. 2016) (affirming the trial court’s dismissal of criminal  

                                                                                                                                              

charge without prejudice on statutory and due process grounds when the defendant was not  

                                                                  

transported to the state hospital for restoration treatment until after the 90-day commitment  

                                                                                                                                      

                                                                                                                                    (continued...)  



                                                                        –  16 –                                                                    2670
  


----------------------- Page 17-----------------------

cases involve civil lawsuits brought by or on behalf of mentally incompetent defendants                                                            



who were held in jail for lengthy periods of time awaiting their transfer to the state                                                                        



                                                                                                       34  

mental hospital for competency restoration treatment.                                                        



                                                                                                                                                           

                          In  Oregon Advocacy Center v. Mink, for example, an advocacy center  



                                                                                                                                                               

brought suit on behalf of mentally incompetent defendants whose transfers to the state  



                                                                                                  35  

                                                                                                                                                         

mental hospital were averaging one month or more.                                                      A federal district court in Oregon  



                                                                                                                                                                 

concluded  that  there  was  “no  rationalization  that  passes  constitutional  muster  for  



                                                                                                                                        36  

                                                                                                                                                              

unreasonably detaining persons found unfit to proceed in county jails.”                                                                     And the court  



       33    (...continued)  



order expired and when the defendant had been in confinement for 175 days by the time of  

                                                                                                                                                    

the dismissal).  



       34    See, e.g., Trueblood v. Washington State Dep’t of Soc. &Health Servs., 822 F.3d 1037  

                                                                                                                    

(9th Cir. 2016) (plaintiffs in a 42 U.S.C. § 1983 action were members of a class of pretrial  

detainees suspected of being mentally incompetent, next friends of such pretrial detainees,  

                                                                                                                             

and disability rights organization); Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101 (9th Cir.  

                           

2003) (plaintiffs included mentally incapacitated criminal defendant who was detained in a  

                                                                  

county jail while awaiting transfer to state hospital and two nonprofit organizations that  

                                                                                                                   

represent such defendants); Disability Law Ctr. v. Utah, 180 F. Supp. 3d 998 (D. Utah 2016)  

(plaintiffs in putative class action under § 1983 were the Disability Law Center and pretrial  

                                                                                                                            

detainees who had been declared incompetent to stand trial but had not been adjudicated  

                                     

guilty of a crime); Advocacy Ctr. for Elderly & Disabled v. Louisiana Dep’t of Health &  

                                                                                                                                     

Hosps .,  731  F.  Supp.  2d  603  (E.D.  La.  2010)  (plaintiffs  were  incompetent  criminal  

                                                                                                                              

defendants detained pretrial and disability advocacy organization); Terry, 232 F. Supp. 2d  

                                                                                                  

934 (plaintiffs in § 1983 class action were pretrial detainees); In re Loveton , 244 Cal.App.4th  

                            

 1025 (defendants were detainees who had been found mentally incompetent to stand trial and  

                                                                                                                   

filed consolidated petitions for writ of habeas corpus); Lakey v. Taylor , 435 S.W.3d 309  

                                                                          

(Tex. App. 2014) (plaintiffs were DisabilityRights Texas and nine pretrial detainees who had  

                                                                                

been found incompetent to stand trial).  



       35    Mink , 322 F.3d at 1106.  



       36    Mink District Order , 2002 WL 35578910, at *6; see also Lakey, 435 S.W.3d at 320-21  

                                                                                                     

                                                                                                                                              (continued...)  



                                                                              –  17 –                                                                         2670
  


----------------------- Page 18-----------------------

further concluded that “[t]he lack of funds, staff or facilities cannot justify defendants’                                             



failure to provide persons found unfit with the treatment that is necessary to attempt                                                          



                                                   37  

restoration of competency.”                                                                                                                              

                                                        The court ordered that incompetent defendants must be  



                                                                                                                                                    

admitted to a treatment facility “in a reasonably timely manner” — which the court  



                                                                                                                                              

interpreted as no later than seven days after the issuance of an order finding a criminal  



                                                                                                                                                    38  

                                                                                                                                  

defendant incompetent to stand trial and committing him to restoration treatment. 



                                                                                                                                                  

                        The  State  of  Oregon  appealed  this  ruling  to  the  Ninth  Circuit,  which  



                                                                                                                                                 

affirmed the finding of a substantive due process violation and upheld the district court’s  



                                                                                           39  

                                                                                                                                          

injunction requiring admission within seven days.                                               Drawing support from Jackson v.  



                                                                                                                                          

Indiana, the Ninth Circuit explained that “[h]olding incapacitated criminal defendants  



                                                                                                                                                       

in jail for weeks or months violates their due process rights because the nature and  



                                                                                                                                                      

duration  of  their  incarceration  bear  no  reasonable  relation  to  the  evaluative  and  



                                                                                                                      40  

                                                                                                                           

restorative purposes for which courts commit those individuals.” 



      36    (...continued)  



(“The lengthy pretrial detention of an incompetent defendant, without any progress at all  

                                                                                                                                     

toward the stated goal of competency-restoration treatment, is not rationally related to any  

                                                                                                                                      

legitimate governmental interest.”).  



      37    Mink District Order , 2002 WL 35578910, at *6.  

                                                  



      38    Id. at *7.  



      39    Mink , 322 F.3d at 1122-23.  



      40  

                                                                                                      

            Id.  at 1122; see also Advocacy Ctr. for Elderly & Disabled v. Louisiana Dep’t of  

                  

Health & Hosps., 731 F. Supp. 2d 603, 621 (E.D. La. 2010) (relying on Jackson to hold that  

                                                         

“the continued imprisonment of the Incompetent Detainees in parish jails . . . does not bear  

                                                                                                                             

a reasonable relationship to either restoring the Detainees to competency or determining that  

         

they will never become competent”); Lakey , 435 S.W.3d at 321 (“Based on Jackson , we  

                                                                                                                                  

agree that an incompetent defendant’s continued detention for competency restoration must  

be justified by progress toward that goal, such that his due-process rights are violated if he  

                                                                                                                                      (continued...)  



                                                                         –  18 –                                                                     2670
  


----------------------- Page 19-----------------------

                        A federal district court in Washington reached a similar conclusion in                                                         



                                                                                                            41  

Trueblood v. Washington State Dep’t of Soc. & Health Servs.                                                                                       

                                                                                                                 In Trueblood, the court  



                                                                                                                                                      

found “seven days to be the maximum justifiable period of incarceration” allowed by the  



                                           42  

                                                                                                                                      

                                               Following abenchtrial,thecourtconcluded that a“seven-day  

Fourteenth Amendment. 



                                                                                                                                                     

limit is required by the Constitution” because holding incompetent defendants in jail  



                                                                                                                                        

causes harm that directly conflicts with the goal of competency restoration:  



                                                                                                                    

                        Each        additional            day       of      incarceration              causes         further  

                                                                                                                              

                        deterioration of class members’ mental health, increases the  

                                                                                                                            

                        risks of suicide and of victimization by other inmates, and  

                                                                                                                          

                        causes illness to become more habitual and harder to cure,  

                                                                                                                               

                        resulting in longer restoration periods or in the inability to  



                                                                                              43  

                                                                                                  

                                                                        

                        ever restore that person to competency. 



                                                                                                                           44  

                                                                                                                 

The State of Washington did not appeal this part of the court’s order. 



      40    (...continued)  



fails to receive any competency-restoration treatment within a reasonable amount of time  

                                                                                                                                                   

following the court’s entry of the order of commitment.”).  

                                                    



      41  

                                                                                              

            Trueblood v. Washington State Dep’t of Soc. & Health Servs., 101 F. Supp. 3d 1010  

(W.D. Wash. 2015).  



      42    Id. at 1022.  



      43  

                                                                     

            Id. ; see also Mink District Order, 2002 WL 35578910, at *4 (“Persons who are found  

                                                                                                   

unfit to stand trial and remain in jail suffer constitutionally cognizable harm, and are entitled  

                                                                                                                                                  

to prompt treatment in a rehabilitative facility.  Even short periods of incarceration of these  

persons can cause cognizable harm.”).  



      44    The federal district court’s permanent injunction required both initial competency  



                                                                        

evaluations and admission to competency restoration services to occur within seven days of  

                                                                                                                                   

a court order.  Because the State of Washington only appealed the portion of the injunction  

                                                                                             

related  to  the  time  limit  for  the  initial  competency  evaluations,  the  Ninth  Circuit  only  

                                                                                                         

addressed whether due process compelled the State to perform these evaluations within seven  

                                        

days of a court order.  The Ninth Circuit held that due process required the Department of  

                                                                                                                                   (continued...)  



                                                                        –  19 –                                                                   2670
  


----------------------- Page 20-----------------------

                                 Although   courts   have   been   uniform   in   finding   that   lengthy   delays   in  



obtaining   restoration   treatment   violate   an   incompetent   defendant’s   substantive   due  



process rights, courts have been varied in their determination of what constitutes a                                                                                                                                



“reasonable” delay in transferring an incompetent defendant to a mental health facility.                                                                                                                                  



As already mentioned, federal district courts in Oregon and Washington have set the                                                                                                                            



deadline at seven days. However, other courts have set deadlines of twenty-one days and                                                                                                                        



                            45  

thirty days.                       



         44      (...continued)  



 Social and Health Services to “conduct competency evaluations within a reasonable time  

                                                                                                                               

following a court’s order,” but that the “district court’s seven-day mandate . . . impose[d] a  

                                                                                                                                                              

temporal obligation beyond what the Constitution requires.”  Trueblood v. Washington State  

                                                                                                                                                

Dep’t of Soc. & Health Servs. , 822 F.3d 1037, 1040 (9th Cir. 2016).  



         45      See, e.g., Advocacy Ctr. for Elderly & Disabled , 731 F. Supp. 2d at 627 (issuing, after  

                                                                                                           

an evidentiary hearing, a preliminary injunction setting a 21-day transfer); see also Cooper  

                                                                                                                                                          

v. Kliebert, 2016 WL 3892445 (M.D. La. July 18, 2016) (unpublished) (denying Louisiana  

                                                                                                               

Department of Health and Hospital’s motion to dismiss plaintiffs’ complaint arising out of  

                                     

similar  litigation  to Advocacy  Ctr.  for  Elderly  &  Disabled ,  while  noting  that  the  prior  

                                                                                                                           

litigation in Advocacy Ctr. had later resulted in a consent decree that set a 30-day deadline  

for admission to the state hospital).  



                                                                                                    – 20 –                                                                                                  2670
  


----------------------- Page 21-----------------------

                                                                                                                       46  

                       Some courts have been reluctant to set precise deadlines.                                           In  Terry, by and     



through Terry v. Hill                , for example, a federal district court in Arkansas concluded that                                         



delays   that   averaged   over   six   months   for   defendants   awaiting  treatment   violated  



                                          47  

                                                                                                                                                   

substantive due process.                       The court had heard testimony that the state hospital was in  



                                                                                                                                      

“crisis” because the number of competency referrals had increased and the hospital’s  



                                                                                                                                           48  

                                                                                                                                               The  

ability to admit patients had decreased due to limited funding, space, and staffing. 



                                                                                                                                                 

court concluded that “[t]he lengthy and indefinite periods of incarceration, without any  



                                                                                                                                       

legal adjudication of the crime charged, caused by the lack of space at [the state hospital],  



                                                                                                                           

is  not  related  to  any  legitimate  goal,  is  purposeless  and  cannot  be  constitutionally  

inflicted upon the members of the class.”49  The court deferred consideration of “what  



                                                                                                                                               

length of wait is constitutionally permissible,” but it noted that “the length of wait  



                                                                                                                                50  

                                                                                                              

experienced by inmates today is far beyond any constitutional boundary.” 



      46    See, e.g., Powell v. Maryland Dep’t of Health, 168 A.3d 857, 876 (Md. 2017) (“While  



the due process clause sets some outside constraints, a one-size fits all approach is unlikely  

                                                        

to be reasonable.”); see also State v. Hand, 429 P.3d 502, 506-07 (Wash. 2018), aff’g 401  

                                                                                                                                                 

P.3d 367 (Wash. App. 2017) (holding that the state hospital’s 61-day delay in admitting  

                                                                                                                                  

defendant for competency restoration treatment was unreasonable and violated substantive  

                                             

due process rights without commenting on general reasonableness standard); In re Loveton ,  

                                                                                                                                

244 Cal.App.4th 1025, 1043-44, 1047 n.19, 198 Cal.Rptr.3d 514 (Cal. App. 2016) (affirming  

the trial court’s 60-day deadline, which the court had found “constitutes a reasonable time  

                                        

to effectuate a transfer from the county jail to a state mental hospital for evaluation and  

                                                                     

treatment,” but limiting the order to that particular case and noting the “piecemeal nature of  

countywide standing orders”).  



      47    Terry ex rel. Terry v. Hill, 232 F. Supp. 2d 934, 938, 943 (E.D. Ark. 2002).  



      48   Id. at 937-38.  



      49   Id. at 943-44.  



      50   Id. at 944.  



                                                                      – 21 –                                                                  2670
  


----------------------- Page 22-----------------------

           Our resolution of this case          



                      In the current case, J.K. requests that we find that the more than 100-day  



                                                                                                              51  

delay that he experienced violated his right to substantive due process.                                                       

                                                                                                                 He also requests  



                                                                                                                           

that we set a presumptive deadline of ten days for transferring incompetent defendants  



                                                                                                                                          

who have been committed for restoration treatment to API.  J.K. argues that setting a  



                                                                                                             

presumptive deadline of ten days will ensure that most defendants are transferred on a  



                                                                                                                                  

timely basis but will provide for flexibility if unusual circumstances prevent a timely  



                                                                                                                                             

transfer in a particular case.  The State opposes the setting of any presumptive deadline.  



                                                                                                                           

It argues that further factual development regarding current changes to API’s operations  



                                                                                                                                             

and its attempts to reduce its waitlist is needed before a presumptive deadline can be set.  



                                                                                                                                          

                     We agree with the State that additional information is needed before a  



                                                                     52  

                                                                                                                                 

                                                                         That said, we have no difficulty in finding  

reasonable presumptive deadline can be set. 



                                                                                                                                         53  

                                                                                                                                             

that the delay that occurred in J.K.’s case is “far beyond any constitutional boundary.” 



                                                                                                                        

Here, the defendant was charged with a misdemeanor, for which the initial commitment  



                                                                                                                                     

was discretionary, not mandatory.  Moreover, it was apparent at arraignment that J.K.  



                                                                                                                                        

was suffering from a severe mental illness for which civil commitment would likely be  



                                                                                                                                      

appropriate.  It was also apparent from the competency evaluation that J.K. had a low  



                                                                                                                                     

likelihood  of  regaining  competency  in  the  foreseeable  future.                                       And  finally,  it  was  



     51    J.K. filed his second motion to dismiss on November 26, 2018, at which time he had  



                                                                                                  

been committed for restoration without treatment for 103 days.  The court denied the motion  

                  

on January 30, 2019, at which time he had been committed for restoration without treatment  

                       

for 168 days.  After this petition was filed, the State initiated civil commitment proceedings  

and dismissed J.K.’s criminal case without prejudice, at which time J.K. had been committed  

for restoration without treatment for 173 days.  



     52    See  Powell,  168  A.3d  at  876  (noting  that  courts  that  have  set  a  deadline  have  

                                                                                                                  

“generally had the benefit of a detailed record after a trial or evidentiary hearing”).  



     53    See Terry, 232 F. Supp. 2d at 944.  

                  



                                                                 – 22 –                                                             2670
  


----------------------- Page 23-----------------------

apparent within days of the issuance of the commitment order that J.K. was unlikely to                                                                                                                                                                                                                                                                                        



be transferred to API within a reasonable time and that he was likely to languish in jail,                                                                                                                                                                                                                                                                             



further decompensating mentally, for most, if not all, of the 90-day commitment order.                                                                                                                                                                                                                                                                                                    



                                                          Under these circumstances, it was incumbent upon the trial court to take                                                                                                                                                                                                                                  



action to remedy what was a clear violation of J.K.’s constitutional rights.                                                                                                                                                                                                                                                    The amount   



of time that this seriously mentally ill defendant remained in jail awaiting competency   



restoration treatment is unacceptable.                                                                                                                               



                                                          In the briefing before this Court, the parties suggest that a special master                                                                                                                                                                                                                    



be appointed to hear evidence and make factual findings on the many issues relating to                                                                                                                                                                                                                                                                                        



the delays in admission for restoration treatment so that a presumptive time limit can be                                                                                                                                                                                                                                                                                    



 set for these types of cases.                                                                                                 We conclude that a special master appointment is not                                                                                                                                                                                     



currently needed                                                             because there is already ongoing litigation                                                                                                                                                          in the trial courts that                                                           



                                                                                                                                                                                                         54  

appears to be directed at solving this problem.                                                                                                                                                                  



                                                                                                                                                                                                                                                                                                                                        

                                                          In the interim, we urge trial courts to be vigilant in ensuring that defendants  



                                                                                                                                                                                                                                                                                                                                                            

who have been found to be incompetent are not left languishing in jail and that the nature  



                                                                                                                                                                                                                                                                                                                                                             

and duration of their commitment bear a reasonable relationship to the purpose for which  



                                                                                                                         55  

                                                                                                                                  

the defendant is committed. 



               54            See Neakok v. State, Trial Court No. 3AN-18-10547 CI.  



               55            See Jackson v. Indiana, 406 U.S. 715, 738 (1972).  



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