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IN THE COURT OF APPEALS OF THE STATE OF ALASKA

R.B., 

 Petitioner, 

 v.

STATE OF ALASKA, 

 Respondent. 

Court of Appeals No. A-13803 

Trial Court No. 4FA-18-01059 CR 

O P I N I O N

No. 2751 — June 30, 2023 

Petition for Review from the Superior Court, Fourth Judicial 

District, Fairbanks, Michael P. McConahy, Judge.

Appearances: Eric D. Yff, Assistant Public Defender,

Fairbanks, and Samantha Cherot, Public Defender, Anchorage, 

for the Petitioner. Nancy R. Simel, Assistant Attorney General, 

Office of Criminal Appeals, Anchorage, and Treg R. Taylor, 

Attorney General, Juneau, for the Respondent. 

Before: Allard, Chief Judge, and Harbison and Terrell, Judges. 

Judge HARBISON.

This case involves a challenge to the constitutionality of the provision of 

Alaska law governing the procedure that must be followed after a criminal defendant 
– 2 – 2751

charged with a felony is found to be legally incompetent.1 The defendant in this case, 

R.B., contends that AS 12.47.110(a) is unconstitutional because it mandates the 

commitment of all incompetent felony defendants regardless of their prospects for 

regaining competency.

R.B. was charged with felony assault and several other offenses. He filed 

a motion for judicial determination of competency, which the court granted. A forensic 

psychologist determined that R.B. had a history of traumatic brain injuries and 

schizoaffective disorder and concluded that as a result, R.B. was incompetent to stand 

trial. The psychologist also determined, “to a reasonable degree of psychological

certainty,” that R.B. could not be restored to competency.

After conducting a competency hearing, the superior court found that R.B. 

was not competent to stand trial, but the court declined R.B.’s request to find that he 

was unlikely to be restored to competency within the foreseeable future. Instead, the 

court entered an order committing R.B. to the Alaska Psychiatric Institute (API), “for a 

period not to exceed 90 days . . . until [he] is rendered mentally competent to stand trial; 

or [the] pending charges in this matter are disposed of according to law.”

2

1 Under AS 12.47.100(a), criminal defendants who are unable to understand the 

proceedings against them or unable to assist in their own defense are deemed incompetent 

and cannot be tried, convicted, or sentenced while the incompetency remains.

2 The superior court’s order explained that API is the authorized representative of the 

Commissioner of Health and Social Services. We note that in July 2022, after the court’s 

order was entered, the governor restructured the Department of Health and Social Services, 

dividing it into two separate departments. The Alaska Psychiatric Institute was included 

within the newly created Department of Family and Community Services (DFCS) while 

the Division of Behavioral Health was included in the newly-created Department of Health.

Alaska Statute 12.47.110(a) was then amended to reflect that an incompetent defendant 

would be committed to the custody of the Commissioner of Family and Community 

Services, rather than to the custody of the Commissioner of Health and Social Services. 

See Executive Order No. 121, § 137 (July 1, 2022).
– 3 – 2751

R.B. petitioned this Court for review, arguing that the superior court’s 

order violated his state and federal right to substantive due process by requiring his 

commitment in the absence of a good reason to believe he can be restored to 

competency. We granted his petition.

For the reasons explained in this opinion, we conclude that the superior 

court correctly resolved this issue: under AS 12.47.110, the court must commit an 

incompetent felony defendant to the custody of the Commissioner of Family and 

Community Services for further evaluation and treatment and, except in rare cases not 

presented here, is not required to rule on restorability prior to the defendant’s initial 

commitment.3 We also conclude that this statute does not violate R.B.’s due process 

rights under either the United States or the Alaska constitution.

However, the parties’ briefs bring to light a related problem with the 

superior court’s commitment order. While the order requires API to promptly notify the 

court if it determines that R.B. has become competent so that “an expedited hearing 

pursuant to AS 12.47.100 can be scheduled,” it does not require API to provide similar 

notice if it determines, to a reasonable degree of psychological certainty, that R.B. 

cannot be restored to competency. Such a determination could provide a basis for the 

superior court to conduct an evidentiary hearing prior to the expiration of the period of 

commitment and, if R.B. is not restorable, to dismiss the charges against him. We 

accordingly remand this matter to the superior court with instructions to amend its 

commitment order to require API to promptly notify the court if it determines to a 

reasonable degree of certainty that R.B. cannot be restored to competency within the 

maximum period of commitment.

3 The term “restorable” is often used by courts to refer to a likelihood that the 

defendant will attain competency in the foreseeable future. See, e.g., Powell v. Md. Dep’t 

of Health, 168 A.3d 857, 874 (Md. App. 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.”).
– 4 – 2751

Background facts and proceedings, and an overview of the pertinent 

statutes

R.B. was charged with second-degree assault, fourth-degree assault, 

resisting arrest, reckless endangerment, second-degree criminal trespass, and disorderly 

conduct.4 The charges were based on an incident that allegedly occurred when R.B. was 

having dinner in a restaurant with his father. Police officers were dispatched to the 

restaurant to investigate a report that R.B. had engaged in threatening behavior and 

refused to leave the restaurant. According to the charging documents, R.B. resisted 

arrest, punched one of the officers in the forehead, and fought with a second officer, 

causing him to suffer a knee injury, a concussion, and memory loss. 

After his arrest, R.B. posted bail and was released to his father’s care. 

R.B.’s defense attorney eventually moved for a competency evaluation pursuant to 

AS 12.47.100(b). 

Under AS 12.47.100(b), if either the prosecutor or the defense attorney 

has reasonable cause to believe that the defendant may be incompetent, they may file a 

motion for a judicial determination of the defendant’s competency. This statute requires 

that, upon such a motion (or upon the court’s own motion), the defendant must be 

examined by at least one qualified psychiatrist or psychologist, who then reports to the 

court on the defendant’s competency. If the court determines that the defendant is 

incompetent on either or both of the grounds set out by AS 12.47.100(a), the court must

stay the criminal proceedings.

5 Additionally, if the defendant is charged with a felony, 

AS 12.47.110(a) requires the court to commit the defendant to the custody of the 

4 AS 11.41.210(a)(2), AS 11.41.230(a)(1), AS 11.56.700(a)(3), AS 11.41.250(a), 

AS 11.46.330(a)(1), and AS 11.61.110(a)(5), respectively.

5 AS 12.47.110(a).
– 5 – 2751

Commissioner of Family and Community Services for further evaluation and 

treatment.6 This initial commitment may not exceed ninety days.7

If, after the initial commitment, the superior court finds by a 

preponderance of the evidence that the defendant remains incompetent to stand trial, 

AS 12.47.110(b) authorizes the court to order a second commitment of no more than 

ninety days. At the expiration of the second period of commitment, if the defendant 

remains incompetent, the court ordinarily must dismiss the charges against the 

defendant, and the defendant’s continued commitment is governed by the statutes 

relating to civil commitments.8

In the present matter, the superior court granted the defense attorney’s 

motion for a competency evaluation, and R.B. was interviewed via live 

videoconferencing by Dr. Gregory Lobb, a licensed forensic psychologist under 

contract with API. Lobb also reviewed a large number of documents and briefly 

interviewed R.B.’s father. Lobb then prepared a report opining that R.B. suffered from 

schizoaffective disorder and mild neurocognitive disorder due to traumatic brain injury. 

In his report, Lobb explained that it was unlikely that any additional treatment would 

provide a change in R.B.’s understanding of the legal system or his ability to assist in 

his defense, and he thus concluded, to “a reasonable degree of psychological certainty,”

that R.B. was “not restorable.” 

6 This commitment is discretionary for defendants charged only with misdemeanors. 

7 AS 12.47.110(a).

8 There is an exception under AS 12.47.110(b) for defendants charged with crimes

involving force against a person, when the defendant presents a substantial danger to other 

persons. But even under this exception, the defendant’s continued commitment may only 

be ordered if the superior court finds that there is a substantial probability that the defendant 

will regain competency within a reasonable period of time, and then only for an additional 

period of up to six months. After that, the charges must be dismissed.
– 6 – 2751

After receiving Lobb’s report, R.B.’s attorney filed a motion to dismiss

the charges, arguing that R.B. could not be restored to competency and noting that there 

was a months-long waitlist for admission to API. (API is a locked, inpatient facility and 

is the only facility in Alaska that currently provides competency restoration treatment.9

Unlike other states, Alaska does not have a facility that conducts outpatient competency 

restoration.10) In the motion to dismiss, the defense attorney asserted that an order 

requiring R.B. to be committed under AS 12.47.110 would violate R.B.’s right to 

substantive due process because a psychologist had already determined that R.B. was 

not restorable.

The State opposed R.B.’s motion to dismiss, and the superior court 

scheduled a competency hearing, deferring ruling on the motion to dismiss until after it 

had adjudicated the question of R.B.’s competency. 

At the competency hearing, Lobb was qualified as an expert to offer his 

professional opinion of R.B.’s competency. He provided testimony that was consistent 

with his report — i.e., that R.B. was not competent and could not be restored to 

competency. Lobb noted that R.B. had been living with his father, W.B., since his 

release from custody and might decompensate if he were taken out of his father’s care. 

W.B. also testified at the hearing. W.B. testified that R.B. had suffered 

dramatic changes in mood after sustaining traumatic brain injuries and that it took 

several years to determine the best combination of medications to treat R.B.’s 

symptoms. According to W.B., R.B. had not been taking the “right” medications when 

the incident occurred, but since that time, R.B. had been doing much better. W.B. 

explained that R.B. did not respond well to changes in his environment and expressed 

9 See J.K. v. State, 469 P.3d 434, 441 (Alaska App. 2020); In re Naomi B., 435 P.3d 

918, 934 (Alaska 2019).

10 J.K., 469 P.3d at 441.
– 7 – 2751

concern that R.B.’s behavior and mental state might worsen if he were sent to jail or 

API. 

At the hearing, the parties stipulated that the waiting time for admission 

to API was approximately 120 days and that an incompetent out-of-custody defendant 

could be admitted to API for further evaluation and treatment without having to be 

jailed first. 

After considering the parties’ arguments, the superior court found that 

R.B. had established by a preponderance of the evidence that he was incompetent. 

However, the superior court declined to enter a finding on whether R.B. was restorable, 

instead committing him to API for up to ninety days. The court’s order allowed R.B. to 

report directly to API for admission so that he could remain out of custody in his father’s 

care while waiting for a bed at API to become available. 

R.B. then petitioned this Court for review of the superior court’s order, 

and we granted the petition.

Why we conclude that this Court’s existing precedent does not establish 

that it is unconstitutional to commit incompetent defendants without first 

determining that they are restorable

R.B. contends that AS 12.47.110(a) is unconstitutional because it 

mandates the commitment of all incompetent felony defendants regardless of their 

prospects for regaining competency. According to R.B., in order to pass constitutional 

muster, a commitment statute must allow the superior court to adjudicate the question 

of restorability before committing a defendant for further evaluation or treatment — so 

that if the court determines that the defendant cannot be restored to competency within 

the maximum period of commitment authorized by statute, the court may decline to 

commit the defendant and instead may dismiss the case. As support for this contention, 
– 8 – 2751

R.B. relies in large part on J.K. v. State — which is this Court’s only case discussing 

the United States Supreme Court’s opinion in Jackson v. Indiana.

11

In Jackson, the United States Supreme Court held that, as a matter of 

federal due process, a defendant “who is committed solely on account of his incapacity 

to proceed to trial cannot 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.”

12 The defendant in that case had been found to be incompetent 

because he was deaf and could not speak, read, write, “or otherwise communicate 

except through limited sign language.”

13 The Indiana court committed him, as required 

by state statute, until such time as the superintendent of the state psychiatric hospital

could certify that he was “sane.” 

The state statute at issue in Jackson had two salient features. First, it was 

mandatory in nature, meaning that courts were required to commit defendants upon a 

finding of incompetence. Second, it conditioned the end of the commitment on the 

defendant regaining “sanity.” Because of this, the duration of a defendant’s 

commitment was indefinite and could theoretically result in a lifetime of confinement, 

even for defendants — like Jackson — who had little prospect of regaining 

competence.14

11 Id. at 434; Jackson v. Indiana, 406 U.S. 715, 738 (1972). 

12 Jackson, 406 U.S. at 738.

13 Id. at 717.

14 See id. at 717 n.1 (citing Ind. Code § 35-5-3-2 (1971)) (“If the court shall find that 

the defendant has not comprehension sufficient to understand the proceedings and make 

his defense, the court shall order the defendant committed to the department of mental 

health, to be confined by the department in an appropriate psychiatric institution. Whenever 

the defendant shall become sane the superintendent of the state psychiatric hospital shall 

certify the fact to the proper court, who shall enter an order on his record directing the 

sheriff to return the defendant, or the court may enter such order in the first instance 
– 9 – 2751

Jackson appealed, contending that this commitment statute was 

unconstitutional. The Supreme Court held that “due process requires that the nature and 

duration of commitment bear some reasonable relation to the purpose for which the 

individual is committed,” and thus agreed with Jackson that the indefinite commitment 

of a criminal defendant solely on account of the defendant’s incompetency to stand trial 

was unconstitutional.

15

This Court relied in part on Jackson when we considered, in J.K. v. State, 

whether a lengthy delay in transferring an incompetent defendant to API for restoration 

treatment violated the defendant’s right to substantive due process.16 In J.K., the 

defendant had been charged with a misdemeanor, found to be incompetent, and 

committed to the custody of the Commissioner of Health and Social Services for an

initial ninety-day restoration period. Because J.K. was not released on bail, he remained 

incarcerated for over 100 days, waiting to be transferred to API.17

J.K. petitioned for review, and this Court granted the petition. We held 

that the lengthy delay in transferring J.K. to API violated J.K.’s right to substantive due 

process. In reaching this conclusion, we relied on Jackson’s admonition that the nature 

and duration of a defendant’s commitment must “bear some reasonable relation to the 

purpose for which the defendant is committed,” and that a defendant’s continued 

commitment after a finding of incompetency “must be justified by progress toward that 

goal.”18 We thus held that “a defendant who has been found incompetent and committed 

whenever he shall be sufficiently advised of the defendant’s restoration to sanity.” 

(emphasis added)).

15 Id. at 738.

16 J.K., 469 P.3d at 440-41, 444-45. 

17 Id. at 444 & n.51.

18 Id. at 440-41 (quoting Jackson, 406 U.S. at 738). 
– 10 – 2751

to competency restoration treatment cannot languish in jail without access to the 

treatment,” and we concluded that the delay that occurred in J.K.’s case went “far 

beyond any constitutional boundary.”19

In J.K., we noted Jackson’s holding that, 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.”20 We then described this as equivalent to 

permitting commitment 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.”21

R.B. relies heavily on this description of the Jackson holding to argue that, 

before a defendant can be committed to API under AS 12.47.110(a), a court must 

affirmatively find “good reason” to believe that the defendant is restorable. But this is 

a misreading of what was obviously intended to be a recapitulation of the holding in 

Jackson. To the extent that our language in J.K. could be read to suggest that an 

affirmative judicial finding of restorability is required in all cases before commitment 

for further evaluation and treatment can be ordered, we reject that interpretation. 

We also note that, although both R.B. and J.K. raised due process 

challenges to a superior court’s commitment order, there is little else that their cases 

have in common. Indeed, the two cases involve challenges to entirely different aspects 

of a competency commitment. J.K. challenged the lengthy period of time he spent in 

jail awaiting transfer to API for restoration treatment after the court declined to dismiss 

19 Id. at 441, 444.

20 Id. at 440 (quoting Jackson, 406 U.S. at 738).

21 Id.
– 11 – 2751

his misdemeanor case and instead exercised its discretionary authority to commit him.22

In contrast, R.B. challenges the mandatory nature of the provision that requires felony 

defendants to be committed for evaluation and treatment even in the absence of an 

affirmative finding that the commitment may restore them to competency. In other 

words, our conclusion in J.K. that “a defendant who has been found incompetent and 

committed to competency restoration treatment cannot languish in jail without access 

to the treatment” has little bearing on whether mandatory commitment may be required 

of felony defendants in the absence of a judicial finding of restorability. 

Having determined that J.K. does not control the outcome of this case, we 

turn our attention to R.B.’s remaining arguments.

Why we conclude that the mandatory commitment required by 

AS 12.47.110 does not violate a defendant’s right to substantive due 

process

Whether mandatory commitment under AS 12.47.110 violates a 

defendant’s right to substantive due process is a question of first impression in Alaska. 

To answer this question, we consider the United States Supreme Court’s decision in 

Jackson, the purpose of commitment under AS 12.47.110, and the decisional law of 

other courts. Ultimately, we conclude that AS 12.47.110 is consistent with defendants’ 

due process rights under the United States and Alaska constitutions.

The Due Process Clause of the Fourteenth Amendment to the United 

States Constitution restricts the government’s power to prosecute crimes in two relevant 

respects. First, it prohibits the criminal trial of an incompetent defendant.23 Second, it 

recognizes “a substantial liberty interest in avoiding confinement in a mental 

22 Id. at 439-40.

23 Cooper v. Oklahoma, 517 U.S. 348, 354 (1996).
– 12 – 2751

hospital.”24 Because a defendant has a “strong interest in liberty,” the government must 

advance a “sufficiently compelling” interest to justify this deprivation.25

In Jackson v. Indiana, the Supreme Court held that due process requires 

the nature and duration of a defendant’s commitment to “bear some reasonable relation 

to the purpose for which the individual is committed.”

26 We accordingly begin our 

analysis by determining the purpose for the mandatory commitment of felony 

defendants under AS 12.47.110(a). 

Alaska courts employ a sliding-scale approach to statutory interpretation. 

Under this approach, the plain language of a statute is significant but does not always 

control; rather, “legislative history can sometimes alter a statute’s literal terms.”

27

However, as a general rule, “the plainer the language of the statute, the more convincing 

contrary legislative history must be.”

28

Alaska Statute 12.47.110(a) provides that, when a trial court determines 

that a felony defendant is legally incompetent, the court shall commit the defendant “for 

further evaluation and treatment until the defendant is mentally competent to stand trial 

. . . but in no event longer than 90 days.” This plain language indicates that the purpose 

of the commitment is twofold: (1) to conduct further evaluation of the defendant’s 

competency, and (2) to provide treatment in order to render the defendant mentally 

competent to stand trial.

24 Zinermon v. Burch, 494 U.S. 113, 131 (1990).

25 United States v. Salerno, 481 U.S. 739, 748, 750 (1987).

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

27 Ward v. State, Dep’t of Pub. Safety, 288 P.3d 94, 98 (Alaska 2012) (quoting Bartley 

v. State, Dep’t of Admin., Teacher’s Ret. Bd., 110 P.3d 1254, 1258 (Alaska 2005)).

28 Id. (quoting Bartley, 110 P.3d at 1258).
– 13 – 2751

In 1981, the Alaska legislature responded to the Supreme Court’s decision 

in Jackson by placing a limit on the length of a defendant’s confinement after a finding 

of incompetency.29 The resulting law did not require commitment for any defendants, 

but it did state, as does the current statute, that a commitment was for “further evaluation 

and treatment.”30 Then, in 2008, the legislature amended AS 12.47.110(a) to make the 

initial commitment of incompetent defendants charged with felonies mandatory.31 The 

2008 legislation also made changes to how civil commitment proceedings are initiated 

against incompetent defendants and created a rebuttable presumption that would favor 

the civil commitment of incompetent felony defendants.32

R.B. contends that the legislative history of the 2008 changes to 

AS 12.47.110 indicates that the legislature’s intent in enacting these changes was to 

facilitate the civil commitment of incompetent criminal defendants. 

We have reviewed this legislative history, and we agree that the legislature 

contemplated that some of the changes to AS 12.47.110 would facilitate a subsequent 

civil commitment of felony defendants who are found incompetent to stand trial.33

However, we do not agree with R.B.’s claim that this was also the reason that the 

legislature made the change to AS 12.47.110(a) which mandated the commitment of 

incompetent defendants charged with felonies. Indeed, in proposing these changes to 

29 Former AS 12.45.110(a) (1981); Audio of Senate Health, Educ., and Soc. Services 

Comm. Meeting, Senate Bill 100, testimony of Assistant Attorney General Barry Stern, 

2:57:59 – 3:00:06 p.m. (Feb. 23, 1981) (describing how the bill would update the law to 

conform with Jackson). 

30 Former AS 12.45.110(a) (1981); SLA 1981, ch. 84, § 4.

31 SLA 2008, ch. 75, § 19 (changing “may” to “shall”).

32 SLA 2008, ch. 75, §§ 20-21. 

33 In particular, the addition of a rebuttable presumption that an incompetent felony 

defendant is mentally ill and is likely to harm themselves or others was intended to further 

this goal.
– 14 – 2751

the legislature in 2008, the Governor and representatives from the Attorney General’s 

office repeatedly stated that the amendments were designed to require incompetent 

defendants to be referred to the Commissioner “for evaluation and treatment.”34

We conclude that this legislative history demonstrates that the 

legislature’s purpose for committing felony defendants is consistent with the purpose 

stated in the statute’s plain language — i.e., to evaluate the defendant’s competency to 

stand trial and to provide restoration treatment to the defendant with the goal of 

allowing trial proceedings to resume. 

Having determined the purpose for an incompetency commitment under 

AS 12.47.110(a), we next must determine whether, as required by Jackson, the nature 

and duration of the defendant’s commitment has a reasonable relation to this

governmental purpose.

35

Jackson involved an Indiana statute that authorized the indefinite 

confinement of an incompetent defendant without an evaluation of the defendant’s 

dangerousness or ability to be restored to competency through treatment.36 Because the

Indiana statute allowed defendants to be held “more than the reasonable period of time 

necessary to determine whether there [was] a substantial probability” that they would 

34 See, e.g., Governor’s Transmittal Letter for House Bill 323, 2008 House Journal 

1732-34 (Jan. 17, 2008); Governor’s Transmittal Letter for Senate Bill 234, 2008 Senate 

Journal 1621-23 (Jan. 18, 2008); Audio of Senate Fin. Comm., Senate Bill 234, testimony 

of Assistant Attorney General Anne Carpeneti, 9:31:30 – 9:31:40 a.m. & 9:33:08 – 9:33:39

a.m. (March 24, 2008) (explaining that, under the proposed amendments, when a felony 

defendant is found incompetent, the defendant must be referred for evaluation and 

treatment “in hopes that they can be made competent”).

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

36 Id. at 720-21.
– 15 – 2751

attain competency in the foreseeable future, the Supreme Court found that it was 

unconstitutional.37

On appeal, R.B. contends that Jackson stands for the proposition that if 

there is no reason at the outset to believe treatment is likely to restore a defendant to 

competency, then no period of commitment can be justified in accordance with 

substantive due process, and the mandatory commitment provision of AS 12.47.110(a) 

for incompetent defendants charged with a felony is, therefore, unconstitutional. As we 

are about to explain, we do not construe Jackson in this way.

Like the Alaska statute challenged by R.B., the comparable federal 

commitment statute — 18 U.S.C. § 4241(d) — mandates the commitment of 

incompetent criminal defendants in the absence of any finding regarding restorability.

The federal statute provides that, if a court finds that a defendant is incompetent,

the court shall commit the defendant . . . for such a 

reasonable period of time, not to exceed four months, as is 

necessary to determine whether there is a substantial 

probability that in the foreseeable future he will attain the 

capacity to permit the proceedings to go forward.[38]

Thus, the federal commitment statute does not require a court to assess 

whether a defendant is restorable prior to ordering their commitment.39 Instead, just as 

Alaska’s statute requires an incompetent felony defendant to be committed for further 

37 Id. at 738.

38 18 U.S.C. § 4241(d).

39 Id.; United States v. McKown, 930 F.3d 721, 727 (5th Cir. 2019) (noting that under 

18 U.S.C. § 4241(d), commitment is mandatory upon a finding of incapacity “irrespective 

of the defendant’s initial prognosis”); United States v. Strong, 489 F.3d 1055, 1062 (9th 

Cir. 2007) (rejecting Strong’s argument that 18 U.S.C. § 4241(d) violates due process 

because it “provides for the commitment of restorable and non-restorable defendants 

alike”); United States v. Shawar, 865 F.2d 856, 861 (7th Cir. 1989) (noting that the 

“likelihood of recovery is not something to be considered by the district court in deciding 

whether to commit the defendant for the evaluation period”).
– 16 – 2751

evaluation to assess whether and how the defendant may be restored to competency, 18 

U.S.C. § 4241(d)(1) similarly requires commitment in order to “determine whether 

there is a substantial probability that in the foreseeable future” the defendant can be 

restored to competency.

Although the federal commitment statute was enacted in direct response 

to the Supreme Court’s opinion in Jackson,

40 it nevertheless has been the subject of 

repeated due process challenges. All of the federal appellate courts that have considered 

such challenges have rejected them, holding that the statute complies with due 

process.41

The Ninth Circuit Court of Appeals’ opinion in United States v. Strong is 

representative of the way federal courts have addressed these due process challenges.

In Strong, the Ninth Circuit held that the mandatory commitment provision in 

18 U.S.C. § 4241(d) did not run afoul of the Supreme Court’s holding in Jackson.42 It

observed that Jackson set out two factors for determining whether the commitment of 

an incompetent defendant violates due process: (1) whether the duration of the 

commitment is reasonable, and (2) the closeness of the fit between the commitment and 

the purpose for which such commitment is designed. Applying these factors, the court 

40 Strong, 489 F.3d at 1061 (“[18 U.S.C.] § 4241(d) was enacted in response to the 

Jackson decision and echoed Jackson’s language.”); United States v. Filippi, 211 F.3d 649, 

652 (1st Cir. 2000) (“[18 U.S.C. § 4241(d)] is self-evidently built upon Jackson.”); United 

States v. Donofrio, 896 F.2d 1301, 1302 (11th Cir. 1990) (“[18 U.S.C. § 4241(d)] was 

passed in response to the Supreme Court decision in Jackson.”); Shawar, 865 F.2d at 864 

(“Congress clearly was aware of the Court’s decision in Jackson, and echoed its language 

in [18 U.S.C.] § 4241(d).”).

41 Filippi, 211 F.3d at 651-52; Strong, 489 F.3d at 1061-63; Donofrio, 896 F.2d at

1302-03; McKown, 930 F.3d at 728; Shawar, 865 F.2d at 863-64; United States v. Brennan, 

928 F.3d 210, 216-18 (2d Cir. 2019); United States v. Dalasta, 856 F.3d 549, 554 (8th Cir. 

2017); United States v. Ferro, 321 F.3d 756, 762 (8th Cir. 2003); United States v. 

Anderson, 679 F. App’x 711, 713 (10th Cir. Feb. 16, 2017) (unpublished).

42 Strong, 489 F.3d at 1061-63.
– 17 – 2751

concluded that the duration of the commitment authorized by the federal statute is 

reasonable because it is limited to a maximum of four months, and because the statute 

provides a mechanism for early release. The court also concluded that the defendant’s 

commitment bore a reasonable relation to the purpose for the commitment, which was 

to evaluate whether the defendant was “susceptible to timely restoration.”

43

The court explained that requiring the commitment of a defendant for 

purposes of conducting an evaluation to determine the defendant’s restorability was a 

reasonable legislative decision because such a determination requires a more careful 

and accurate diagnosis than the brief interviews and review of medical records that tend 

to characterize initial competency proceedings. Moreover, because most conditions 

resulting in incompetency are capable of some improvement, mandatory commitment 

“appropriately affords additional time during which the Attorney General may explore 

medical options.”

44 The court thus concluded that the mandatory commitment provision 

does not violate principles of substantive due process, even if the medical evidence 

available at the outset indicates that the defendant’s condition is permanent.45

We reach the same conclusion with regard to the mandatory commitment 

provision of AS 12.47.110(a). In contrast to the Indiana statute at issue in Jackson, 

43 Id. at 1062.

44 Id. (quoting Ferro, 321 F.3d at 762).

45 Id. (“[E]ven where the available evidence indicates that a criminal defendant’s 

mental condition is irreversible, Congress ‘could reasonably think that, in almost all cases, 

temporary incarceration would permit a more careful and accurate diagnosis before the 

court is faced with the serious decision whether to defer trial indefinitely and (quite often) 

to release the defendant back into society.’” (quoting Filippi, 211 F.3d at 651)); see also 

McKown, 930 F.3d at 728 (“[E]ven where the medical evidence indicates that the 

defendant’s condition is permanent, temporary hospitalization bears some reasonable 

relation to the purpose for that confinement.”).
– 18 – 2751

which provided for an indefinite period of commitment,

46 the duration of commitment 

under AS 12.47.110 is expressly limited. It contains a cap on the maximum length of 

time a defendant may be committed,47 and it also allows the defendant to gain early 

release if they are restored to competency or if the charges against them are otherwise 

disposed of according to law.48 Thus, AS 12.47.110(a) provides a “flexible and caseoriented” approach to determining the length of commitment, keeping it within “the 

rule of reasonableness” announced in Jackson.

49

Furthermore, unlike the Indiana statute at issue in Jackson, which required 

commitment “solely on account of [the defendant’s] incapacity” with no other 

articulated purpose for the commitment,50 AS 12.47.110 clearly provides two distinct 

purposes for committing an incompetent defendant: (1) further evaluation and 

(2) treatment. These stated purposes are closely related to the important governmental 

interest in bringing an accused to trial and its related interest in assuring that the 

46 Jackson v. Indiana, 406 U.S. 715, 720-21 (1972).

47 See AS 12.47.110 (providing for a maximum of two ninety-day periods of 

confinement unless the defendant is charged with a crime involving force against a person 

and the court finds that the defendant presents a substantial danger of physical injury to 

other persons and there is a substantial probability that the defendant will regain 

competency within a reasonable period of time, in which case the court may extend the 

commitment up to an additional six months).

48 AS 12.47.110(a).

49 See Filippi, 211 F.3d at 652 (holding that 18 U.S.C. § 4241(d) provides a “flexible 

and case-oriented” approach to determining the length of incarceration); McKown, 930 

F.3d at 728 (holding that 18 U.S.C. § 4241(d) complies with Jackson’s rule of 

reasonableness because it had a flexible and case-oriented approach to determining the 

length of confinement).

50 Jackson, 406 U.S. at 731.
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defendant’s trial is a fair one, and thus the statute comports with the federal substantive 

due process principles articulated in Jackson.

51

R.B. acknowledges the federal approach, but he contends that because 

AS 12.47.110 provides for mandatory commitment of felony offenders while giving 

courts discretion over whether to commit misdemeanor offenders, it is akin to a statute 

that the Georgia Supreme Court invalidated as unconstitutional in Carr v. State.

52

In Georgia, incompetent defendants charged with violent offenses were 

required to be taken into physical custody for an initial commitment period of up to 

ninety days. (Trial courts’ discretionary authority to allow outpatient restoration 

treatment was permitted only for incompetent defendants charged with nonviolent 

offenses.) Carr, an incompetent criminal defendant charged with violent offenses, was 

committed under this mandatory provision. On appeal, he argued that, because he was 

out on bond, ordering him into custody on the sole basis that he was incompetent to 

stand trial would violate his due process and equal protection rights.

53

The Georgia Supreme Court agreed, and held that the statutory mandate

requiring the automatic detention of incompetent defendants, without an individualized 

determination of whether confinement reasonably advances the government’s purpose,

violated the defendant’s right to due process.54 The supreme court observed that the 

statutory provision allowing outpatient evaluation as an option for defendants who were 

accused of nonviolent offenses reflected a legislative determination that confinement in 

a department facility was not required for an accurate evaluation. It further noted that 

the kind of crime the defendant allegedly committed bears no obvious relationship to 

51 See Filippi, 211 F.3d at 652.

52 Carr v. State, 815 S.E.2d 903, 913-16 (Ga. 2018). 

53 Id. at 906-07.

54 Id. at 916.
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the appropriate process for evaluating whether the defendant will attain competency in 

the foreseeable future. In fact, in Carr’s case, the trial court had already determined, 

when it released him on bond, that he was not a danger to the community. 

Thus, the trial court’s sole basis for requiring Carr’s commitment was his 

incompetence, and the supreme court ruled that, by depriving defendants of their liberty 

solely on the basis of their incompetence, the Georgia statute violated due process.

According to R.B., AS 12.47.110(a), like the Georgia statute, is unconstitutional 

without an individualized showing that commitment is necessary.

But Alaska’s statute reflects a different legislative determination. Under 

Alaska law, whenever a court orders further evaluation and treatment of an incompetent 

defendant, the defendant must be committed to the custody of the Commissioner of 

Family and Community Services.55 Unlike the Georgia law struck down in Carr, 

Alaska’s commitment statute does not use the nature of the offense to determine where 

the restoration and evaluation should occur (either in an inpatient or outpatient context), 

but whether such efforts should be made at all. And unlike Georgia, Alaska does not 

have an outpatient facility that provides evaluation and treatment of incompetent 

defendants. 

R.B. notes that AS 12.47.110 treats defendants accused of felonies 

differently than it treats those charged only with misdemeanors. Under AS 12.47.110, 

the court is required to commit an incompetent felony defendant for further evaluation 

and treatment. By contrast, if an incompetent defendant is charged only with 

misdemeanors, the court is empowered to exercise its discretion to either commit the 

defendant for further evaluation and treatment or to dismiss the charges. R.B. claims 

that because Alaska courts are not required to order the commitment of all incompetent 

defendants, commitment is not closely related to the statutory purposes of evaluating 

and treating criminal defendants. 

55 AS 12.47.110(a).
– 21 – 2751

But the government has a legitimate interest in bringing an accused to trial, 

and this interest becomes stronger the more serious the degree of crime.56 Alaska’s 

statute requiring further evaluation and treatment of incompetent defendants charged 

with felonies but not similarly mandating further evaluation and treatment of 

incompetent defendants charged with misdemeanors is therefore a reasonable 

legislative decision that reflects this heightened government interest.

We accordingly reject R.B.’s facial challenge to AS 12.47.110, and we 

hold that the statute’s mandatory initial commitment requirement for incompetent 

defendants charged with a felony does not violate a defendant’s right to substantive due 

process. Moreover, because the legislature could reasonably conclude that judicial 

findings regarding the restorability of an incompetent felony defendant should not be 

made until the defendant has been evaluated and treated, we conclude that, in the 

majority of felony cases, courts should refrain from making findings regarding a 

defendant’s restorability until that evaluation and treatment has occurred. 

We acknowledge, as the State does in its briefing, that there may be rare 

felony cases in which the evidence of non-restorability at the initial competency hearing 

is so overwhelming and irrefutable that commitment would deprive the defendant of 

their right to due process. But in the vast majority of felony cases, the court may 

properly decline to make such a predictive finding. It is only in extreme felony cases —

such as when a defendant suffers from a severe static cognitive deficit, or when the 

defendant has been recently committed for restoration treatment without success — that 

courts should make a finding regarding restorability rather than waiting for the 

additional information that will be provided by the initial mandatory commitment 

required for felony defendants. 

In R.B.’s case, the purpose of Lobb’s evaluation of R.B. was to determine 

whether he was competent, not to determine whether he was restorable. Lobb conducted 

56 See Sell v. United States, 539 U.S. 166, 180 (2003).
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only one interview of R.B. — an interview conducted by videoconference with R.B. 

participating via cell phone, during which R.B. was not fully cooperative. Given these 

circumstances, the superior court’s decision to follow the statute and to commit R.B. 

for further evaluation and treatment at API before making any final determination about 

R.B.’s restorability was both reasonable and in accord with the underlying legislative 

intent.57

For these reasons, we conclude that under AS 12.47.110, the court must 

commit an incompetent felony defendant to the custody of the Commissioner of Family

and Community Services for further evaluation and treatment and, except in rare cases 

not presented here, is not required to rule on restorability prior to the defendant’s initial 

commitment. We also conclude that that this statute does not violate R.B.’s due process 

rights under either the United States or the Alaska constitution.

Why we reject R.B.’s claim that due process requires a finding that 

involuntary commitment is the least restrictive method of restoring 

competency

On appeal, R.B. contends that due process principles prevent the court 

from ordering the commitment of incompetent felony defendants without first 

conducting an individualized analysis of whether less restrictive alternatives are 

available to further the purpose of the commitment — such as outpatient evaluations 

and treatment. According to R.B., AS 12.47.110 does not require such an analysis, and 

as a result, it is unconstitutional. 

57 See United States v. Strong, 489 F.3d 1055, 1062 (9th Cir. 2007) (citing United 

States v. Ferro, 321 F.3d 756, 762 (8th Cir. 2003)) (noting that restorability determinations 

ordinarily require a more careful and accurate diagnosis than the brief interviews and 

review of medical records that the initial competency proceedings can provide). 
– 23 – 2751

R.B. did not make this argument to the superior court nor secure a ruling 

from the superior court on such a claim, and thus he must show plain error.58 Because 

he did not address the requirements of plain error in his arguments on appeal, he has 

waived this challenge to the constitutionality of AS 12.47.110(a). 

But even if this claim was not waived, R.B. provides scant authority for

it. His argument is based primarily on his interpretation of the legislative history of 

AS 12.47.110(a) — that the purpose of this statute is to civilly commit incompetent 

criminal defendants — and on the Alaska Supreme Court’s cases governing civil 

commitment, which require courts to consider whether less restrictive alternatives to 

such a commitment are available.59

But we have rejected R.B.’s claim that the purpose for commitment under 

AS 12.47.110(a) is solely to facilitate the subsequent civil commitment of incompetent 

defendants. We accordingly also reject his claim that the constitutional requirements 

regarding civil commitments apply equally to competency restoration commitments 

required in criminal cases.

We instead have concluded that the purpose for commitment under 

AS 12.47.110(a) is to provide further evaluation of, and restoration treatment for, 

incompetent criminal defendants. As we have explained, because such commitment 

complies with the test set out in Jackson, the statute does not run afoul of the due process

requirements of the federal constitution.

60

58 Adams v. State, 261 P.3d 758, 773 (Alaska 2011) (holding that a plain error is an 

obvious error which did not result from an intelligent waiver or a tactical decision not to 

object, affected substantial rights, and resulted in prejudice).

59 See, e.g., Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 378 (Alaska 2007), 

overruled on unrelated grounds by In re Naomi B., 435 P.3d 918 (Alaska 2019).

60 See Jackson v. Indiana, 406 U.S. 715, 738 (1972); United States v. McKown, 930 

F.3d 721, 728 (5th Cir. 2019); Strong, 489 F.3d at 1062-63; United States v. Filippi, 211 

F.3d 649, 652 (1st Cir. 2000). 
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To the extent that R.B.’s argument is based on state due process principles, 

he has not identified anything in the text, context, or history of the Alaska Constitution 

that would justify a divergent interpretation of the substantive due process requirements 

for incompetency commitments in criminal cases.

61 We accordingly reject R.B.’s claim 

that AS 12.47.110(a) is facially unconstitutional because it does not require courts to

conduct a least restrictive alternative analysis before ordering the commitment of an 

incompetent felony defendant. 

Why we conclude courts must require the Commissioner of Family and 

Community Services to promptly notify the court if the defendant has been 

restored to competency or if it is unlikely that the defendant will be 

restored to competency within the maximum period of commitment 

The superior court’s order in this case states the “judge’s chambers must 

be promptly notified . . . if . . . the defendant’s custodian considers the defendant to be 

mentally competent to stand trial.” However, it does not similarly order prompt 

notification if “the defendant’s custodian” determines that R.B. is not likely to be 

restored to competency within the maximum period of commitment. 

As we have explained, the mandatory commitment provision of 

AS 12.71.110 is constitutional in part because of its “flexible and case-oriented” 

approach to determining the length of commitment, which comports with the rule of 

reasonableness announced in Jackson.

62 Indeed, the statute expressly allows the 

defendant to gain early release if they are restored to competency or if the charges 

against them are otherwise disposed of according to law.63

61 See State v. Zerkel, 900 P.2d 744, 758 n.8 (Alaska App. 1995).

62 See Filippi, 211 F.3d at 652; McKown, 930 F.3d at 728.

63 AS 12.47.110(a).
– 25 – 2751

We conclude that the court’s commitment order accordingly must reflect 

this approach, ensuring that a defendant’s commitment ends when it no longer bears a 

reasonable relationship to the dual purposes of the commitment — i.e., to conduct 

further evaluation and to provide restoration treatment. Thus, a court’s commitment 

order should ensure that the commitment ends once the defendant is restored to 

competency, or when it becomes clear that further treatment is unlikely to restore their 

competency within the maximum time set out under AS 12.47.110. 

Thus, when a court orders a defendant to be committed under 

AS 12.47.110, the court should order the Commissioner of Family and Community 

Services (or their representative) to notify the court if either of these conditions occurs. 

This will allow the court to expeditiously conduct a hearing to determine whether the 

defendant remains incompetent and, if the defendant has been restored to competency 

or if they cannot be so restored, to end the defendant’s commitment. 

Conclusion 

For the reasons explained in this opinion, we conclude that the mandatory 

nature of the commitment required by AS 12.47.110 does not offend principles of 

substantive due process. We further conclude that the court is not required at the outset 

to determine whether or when the defendant may be restored to competency. In fact, 

one reason to commit the defendant is to allow the Commissioner of Family and 

Community Services to conduct further evaluation that will help the court make these 

determinations. Lastly, we conclude that due process requires that when a court orders 

a defendant to be committed under AS 12.47.110, the court’s order must instruct the 

Commissioner to notify the court as soon as practicable if the evaluators and treatment 

providers determine that the defendant is not likely to be restored to competency within 

the maximum period of commitment or that the defendant has been restored to 

competency. And when a court receives either of these types of notices, it should 
– 26 – 2751

expeditiously conduct a hearing to determine whether continued commitment is 

warranted. 

We AFFIRM the superior court’s order requiring R.B.’s commitment, but 

we REMAND this matter to the superior court for issuance of an amended commitment 

order as described in this opinion.