PHOENIX — County Attorney Kent Volkmer says there have been a couple of instances in which individuals charged with dangerous crimes in Pinal County were released into the community because they were deemed mentally incompetent.
Volkmer testified before the Arizona House Judiciary Committee last week on a bill that would change how state courts handle such defendants.
The bill, HB2334, is sponsored by Rep. Frank Pratt, R-Casa Grande.
The bill is similar to one that passed the House last year but did not make it through the Arizona Senate, Megan Kintner from the Arizona Association of Counties explained to committee members Wednesday.
Arizona law prevents the state from trying, convicting, sentencing or punishing someone who has been determined to be incompetent to stand trial.
Under the current law, a person who has committed a dangerous crime and been determined to be mentally incompetent by a court — and is unable to be restored to competency through treatment — could be released back into the community and possibly commit another dangerous offense, Kintner said.
The law allows for some mentally incompetent people who are accused of a crime and are unable to be restored to competency to be civilly committed to the Arizona State Hospital for treatment, she said. But this is only available for people with certain mental disorders or illnesses and the person must be willing to receive treatment. The treatment also only lasts 180 days, she said.
Volkmer said he knew of at least two cases in Pinal County in the last eight years that would fall under the provisions of the bill.
In one case, a man, who had suffered brain trauma earlier in life, was serving a prison sentence, Volkmer said. The man allegedly strangled, murdered and mutilated his cellmate.
The man was assessed and found likely to reoffend, Volkmer said. But because the man had brain damage and could not be restored, he could not be prosecuted for the death of his cellmate and was released into the community.
Volkmer said he guessed the man was probably deceased, since his office has not heard from the man or heard of any complaints against the man since he was released.
The second case dealt with a man who had a mental disorder and attempted to kill or injure any law enforcement officer he saw, Volkmer said. The man allegedly tried to stab several police officers and attempted to ram his car into officers.
Volkmer said the man swore that the incident never happened and he had no memory of it.
The man was sent to the state hospital, received treatment, was deemed no longer dangerous and released, Volkmer said.
Volkmer said his greatest concern was if the man should come in contact with another law enforcement officer, the officer or the man could be seriously harmed, he said.
Both Volkmer and Kintner said the bill was designed to protect the safety of the public and the safety of the individuals who fell under the proposed law. Kintner estimated that approximately 30 people across the state would fall under the provisions of the bill, if it passed.
If passed, the bill would allow courts to determine if someone who is accused of a dangerous crime, has been deemed mentally incompetent and cannot be restored to competency and who a court has also deemed to be dangerous to the public, should be committed to the Arizona State Hospital for treatment.
A court hearing separate from the one to determine competency would be held to determine if the person was dangerous. At that hearing, prosecutors would have to present “clear and convincing evidence” that the person was a danger to themself and the public.
The person could be held for treatment at the state hospital until a doctor and a judge determined that the person was competent to stand trial. At that point, the criminal case against the person would proceed. If the person were convicted and sentenced, the person would receive credit for the time served in the state hospital.
If a person is unable to be restored to competency at the state hospital, the person would remain in the hospital for the same length of time as the presumptive sentence for the crime they allegedly committed. For example, a presumptive sentence for second-degree murder would be 16 years.
The person’s competency would be reevaluated on a biannual basis and the person could petition the court at any time for a reevaluation. A court would have to set a hearing on the situation within 45 days of receiving a reevaluation report on the person from the hospital.
In order to keep the person in the state hospital, prosecutors would again have to prove by clear and convincing evidence that the person’s competency had not changed.
If a person were deemed incompetent and unable to be restored to competency, but was no longer a danger to themself or the public, a judge would have two options. The judge could release them into the community or move them to a less restrictive treatment option.
If a judge determined the person were still dangerous, then they would stay at the hospital until deemed competent or no longer dangerous.
Two representatives, Diego Rodriguez from District 27 near Phoenix and Domingo DeGrazia from District 10 near Tucson, raised questions about possible civil liberty violations. The American Civil Liberties Union of Arizona and the Arizona Attorneys for Criminal Justice have raised similar concerns about the bill.
DeGrazia asked why the bill used a clear and convincing standard of evidence to have someone committed instead of the reasonable doubt standard of evidence that is used in most criminal trials.
Volkmer said that the authors of the bill felt that the reasonable doubt standard would be too high of a bar to reach. He pointed out that people who may fall under the proposed law would receive a separate evaluation and a kind of trial specific to the issue in front of a Superior Court judge to make sure their rights were protected.
The evidence required for the hearing would be higher than the evidence required for a Title 36 hearing, which is used to judge the mental competency of a person facing criminal charges, he said.
Rodriguez stated that if the state was going to hold someone in the state hospital for the same length of time as if they had been convicted of a crime, then it should use the reasonable doubt standard.
Volkmer said the bill is not intended to be punitive. It would only be used in cases where an incompetent person was deemed to be dangerous to the public and likely to commit another dangerous offense if released.
Rodriguez pointed out that he saw no provision in the bill to allow a person or their attorney to hire their own mental health expert to evaluate them.
Volkmer said he felt that was a valid concern and he would have no objection to adding such an amendment to the bill.
Pamala Hicks, a public defender from Maricopa County who is a member of Arizona Attorneys for Criminal Justice, said the organization had similar concerns about possible civil rights violations, especially when it came to the homeless and mentally ill.
After hearing her concerns, the committee voted 6-4 to pass the bill to the House.