OPINION: In Alaska, criminals have more rights than the mentally ill

Colony High School Principal Mary Fulp’s transport by troopers to the Mat-Su Regional Medical Center, where she was involuntarily admitted and forcibly drugged, drew considerable media attention. It appears a court order shown to troopers was forged by family members after Fulp posted a video online about a spiritual experience and her gift of tongues.

The hospital admitted Fulp without seeing any order and, according to a statement by Fulp’s attorney, “... kept her there without her consent for days, during which time she was traumatized by inhumane treatment.”

“She was strapped to a gurney, held down by several staff and forcibly injected with psychotropic medication …”

“She spent days in a cold dark mental health hospital room … This traumatic experience is a free citizen’s worst nightmare …”

“Free citizen’s worst nightmare” asks us to imagine ourselves being overpowered, strapped down, a needle injecting a chemical that alters us, left in the dark and cold.

“Inhumane” -- yes, when done to a free citizen. But apparently not when done to a mentally ill one, who might speak different tongues than those accepted as religious. The United Nations has stated that forced detention and drugging of the disabled, “based on their supposed ‘best interests,’” can constitute torture.

The attention to Fulp’s treatment, while justified, overlooks a bigger question: Why would a court ever issue a “valid” order for armed officers in a non-crisis situation to involuntarily transport a mentally ill person who has committed no crime to a facility where they are forcibly restrained and drugged?

Simply put, our state Supreme Court (which seldom puts things simply) has sanctioned treating the mentally ill as less than free citizens and worse than criminals, despite lofty posturing otherwise.

For decades, mentally ill Alaskans were forcibly committed and drugged in closed, rubber-stamp court proceedings that generally lasted about 15 minutes. The state did this with little restraint by our judiciary, based on a theory of protecting people who can’t protect themselves.

Finally, in 2006, the Alaska Supreme Court ruled this power was subject to constitutional limitations. In an appeal of Faith Myers’ forced drugging, by Alaska attorney Jim Gottstein, founder of the Law Project for Psychiatric Rights, our court joined numerous states before it and ruled what seems obvious:

“Given the nature and potentially devastating impact of psychotropic medications -- as well as the broad scope of the Alaska Constitution’s liberty and privacy guarantees -- we now similarly hold that the right to refuse to take psychotropic drugs is fundamental; and we further hold that this right must extend ‘equally to mentally ill persons,’ so that the mentally ill are not treated ‘as persons of lesser status or dignity because of their illness.’”

The Court noted the drugs were comparable to a lobotomy and posed significant risks of debilitating side effects. Accordingly, before the state could forcibly inject them into a mentally ill person in a “non-crisis situation,” it had to prove it was (1) in their best interest and (2) there were no less-intrusive alternatives.

Setting aside how a forcible chemical lobotomy with serious negative side effects could ever be in the best interest of someone in a non-crisis situation, in 2009 our Court narrowed the “broad scope” of constitutional protections for the mentally ill, ruling:

“The alternative must actually be available, meaning that it is feasible ...”

In a case not involving forced drugging, the Court adopted the dictionary definition of “feasible,” stating it meant “capable of being accomplished or brought about; possible.” So, you might reasonably conclude that if the less restrictive alternative is possible or capable of being brought about, it’s available.

That is until 2019. In another appeal Gottstein brought against Linda M.’s forced commitment and drugging, an expert psychiatrist testified about a less restrictive, community-based program which had operated for seven years in Anchorage, until it was defunded. The psychiatrist said it would have been a good option for Linda. Gottstein argued it was clearly feasible because it had operated “quite well” for seven years.

In a twist of logic, the Supreme Court said that since the less restrictive alternative wasn’t actually available, it wasn’t feasible. Huh? So “feasible” when it comes to the mentally ill means what politicians elect to fund. In that twist, the court came full circle from declaring our Constitution’s broad privacy and liberty interests “must extend equally to mentally ill persons,” to reducing their rights to less than those of criminals.

Under Alaska’s constitutional prohibition of “cruel and unusual punishment,” the state must fund constitutionally acceptable conditions of imprisonment or free prisoners. Our judiciary has enforced that in litigation over prison overcrowding and other conditions. Shouldn’t the same hold true for psychiatrically incarcerated Alaskans?

We’ve seen what happens when our judiciary abandons mentally ill Alaskans to politicians. The Anchorage Daily News has been reporting on the state’s mental health crisis for years, demonstrating that underfunding and organizational failures have resulted in a “warehousing model of asylums.”

Overcrowded prisons and asylum warehousing are cheaper, although only in the short run. The people confined in them are hidden from most Alaskans. So, politicians have little incentive to provide minimally constitutional conditions for their confinement. That’s why our judiciary must stand guard.

I’m not talking resort-like conditions or even best practices. I’m talking treatment that constitutionally balances the broad and fundamental privacy and liberty interests of the mentally ill against the government’s professed interest in “protecting” them. Consider that forced commitment and drugging is neither protecting nor treating. Rather, it is confining, controlling -- and out of sight.

In placing prisoners’ 8th Amendment right — and free citizens’ privacy and liberty rights — above mentally ill citizens’ rights, the Alaska Supreme Court has sanctioned treating the mentally ill “as persons of lesser status or dignity because of their illness.” That the government claims a “protective” motivation doesn’t change what happens at the end of the needle. It is inhumane. It should also be unconstitutional.

Val Van Brocklin is a former state and federal prosecutor in Alaska who now trains and writes on criminal justice topics nationwide. She lives in Anchorage.

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