J.K. v. State of Alaska

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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.
OPINION
STATE OF ALASKA,

Respondent. No. 2670 — July 17, 2020

Petition 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
the defendant or to assist in the defendant’s own defense.”1 It is a violation of due
process to try a defendant who is incompetent to stand trial.2 When a defendant has been
found to be incompetent, the trial court is required to stay the criminal proceedings.3
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
period is mandatory in all felony cases but discretionary in misdemeanor cases.4
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).

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These delays in obtaining competency restoration treatment raise serious due process
concerns.5
The current case involves an incompetent defendant, J.K.,6 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
substantive due process under Jackson v. Indiana7 was being violated by the delay in
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
interest exception to the mootness doctrine.8 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 main factors: (1) whether the disputed issues
(continued...)

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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
assault, a misdemeanor.9 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.

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gravely disabled.10 This civil procedure for involuntary commitment is independent from
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.
The forensic psychologist who conducted the evaluation, Dr. Dianna Rehn,
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).

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 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
psychotropic medications and was exhibiting bizarre behavior, 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
or to assist in his own defense.12 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
noncompliant with his psychotropic medications. She also 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”).

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misdemeanor.13 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
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
limited authority to dismiss criminal cases in “furtherance of justice.”14 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)).

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a year with good time.”15 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”).

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 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
due process under the state and federal constitutions.16 The motion also cited to multiple
cases from other jurisdictions in which courts had held that similar lengthy delays violate
substantive due process.17 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).

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 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).

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 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 the custody of the commissioner of health and 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
discretionary in misdemeanor cases.19
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
good reason to believe that the defendant will probably soon be able to stand trial.20 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
person.21 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 the court 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).

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injury to other persons”; and (2) “there is a substantial probability that the defendant will
regain competency within a reasonable period of time.”22
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
is a substantial probability that he will attain that capacity in the foreseeable future.”23
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
to restore the defendant to competency in the near future.24 “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 of commitment bear
some reasonable relation to the purpose for which the individual is committed.”26 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...)

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“even if it is determined that the defendant probably soon will be able to stand trial, his
continued commitment must be justified by progress toward that goal.”27 In other words,
a defendant who has been found incompetent and committed to competency restoration
treatment cannot languish in jail without access to the treatment.28 Instead, defendants
are entitled to a “reasonably timely” transfer to the facility that provides competency
restoration treatment.29

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 by progress 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...)

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 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
competency restoration program.30 Nor does it have adequate forensic beds to meet the
demands of the criminal justice system.31

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...)

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 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
constitutions.32 The State now acknowledges that J.K.’s constitutional rights “may” have
been violated.
Courts in other jurisdictions that have confronted similar delays have
consistently found that such delays violate substantive due process.33 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...)

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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
mental hospital for competency restoration treatment.34
In Oregon Advocacy Center v. Mink, for example, an advocacy center
brought suit on behalf of mentally incompetent defendants whose transfers to the state
mental hospital were averaging one month or more.35 A federal district court in Oregon
concluded that there was “no rationalization that passes constitutional muster for
unreasonably detaining persons found unfit to proceed in county jails.”36 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 Disability Rights 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
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
restoration of competency.”37 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
defendant incompetent to stand trial and committing him to restoration treatment.38
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
injunction requiring admission within seven days.39 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
restorative purposes for which courts commit those individuals.”40

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
 A federal district court in Washington reached a similar conclusion in
Trueblood v. Washington State Dep’t of Soc. & Health Servs.41 In Trueblood, the court
found “seven days to be the maximum justifiable period of incarceration” allowed by the
Fourteenth Amendment.42 Following a bench trial, the court concluded that a “seven-day
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
ever restore that person to competency.43
The State of Washington did not appeal this part of the court’s order.44

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
 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
thirty days.45

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).

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 Some courts have been reluctant to set precise deadlines.46 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
substantive due process.47 The court had heard testimony that the state hospital was in
“crisis” because the number of competency referrals had increased and the hospital’s
ability to admit patients had decreased due to limited funding, space, and staffing.48 The
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
experienced by inmates today is far beyond any constitutional boundary.”50

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.

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 Our resolution of this case
In the current case, J.K. requests that we find that the more than 100-day
delay that he experienced violated his right to substantive due process.51 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
reasonable presumptive deadline can be set.52 That said, we have no difficulty in finding
that the delay that occurred in J.K.’s case is “far beyond any constitutional boundary.”53
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
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
appears to be directed at solving this problem.54
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
the defendant is committed.55

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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