Alaska Supreme Court must stop judges from treating people with mental illness worse than criminals

In Alaska, a criminal in custody must be presented with charges in court within 48 hours — or be freed. It’s a constitutional due process right. But if you’re an Alaskan with mental illness who has committed no crime? Our courts let the state confine you for weeks with no determination of whether your custody is legal.

That’s what happened in Tavis J. — an Alaska Supreme Court decision issued in October. It revealed superior court judges have persistently ordered these prolonged illegal confinements, rather than hold the legislative and executive branches accountable for a broken, unconstitutional system.

As Nick Feronti, attorney for the Northern Justice Project, told me, “If this happened in the criminal context—for instance, if people were just held in prison without cause and additional scrutiny for longer than 48 hours — it would be absurd. It would be illegal.”

The law governing Tavis’ confinement was clear. A person can be held in custody for a psychiatric evaluation when there’s probable cause to believe the person is “gravely disabled” as a result of a mental illness and unable to meet their basic needs. A petition must be filed and granted by a superior court for an evaluation period that cannot exceed 72 hours.

(There are also provisions for involuntarily confining persons who present a danger to others. Neither Tavis nor any of the other cases mentioned here involved any suspected danger to others.)

Over a decade ago, our state Supreme Court ruled the person must be transported “immediately” to an evaluation facility, and this can’t be delayed simply because facilities have no capacity.

The capacity issues of state-run facilities like the Alaska Psychiatric Institute have been well documented in media reports and court challenges, and individual Alaskans cannot be unlawfully confined while these institutional changes are addressed.

Alaskans’ due process rights do not depend on adequate funding or what reforms are or are not being made. But the superior courts continued to let the state illegally confine these Alaskans.

So, in 2018 the Disability Law Center and Public Defender Agency sued the state for prolonged detentions in Alaska Department of Corrections jails and hospital emergency rooms of Alaskans awaiting involuntary evaluations. The assigned judge found the state was doing nothing to see these Alaskans were transported “immediately” for their evaluations and they were harmed by the prolonged custody.

The lawsuit settled in 2020 with an agreement the state would fix the problem. It didn’t.

Meanwhile the Alaska Supreme Court kept seeing the problem. In court challenges brought by psychiatric patients in 2021, 2023, and 2024, the high court confronted cases involving Alaskans who were involuntarily confined for up to 19 days because there was no capacity for evaluations. Vacating the orders in each, the Supreme Court emphasized it was critical for the superior courts to enforce due process because of “the massive curtailment of liberty at stake.”

Still, two courts in Tavis’ case defied those rulings. In two separate petitions two different counselors affirmed to two different superior court judges that there were multiple facilities that would accept Tavis within 24 hours. But the facilities responded they had no capacity. And the two judges confined Tavis a total of 24 days before he was finally transported to an evaluation facility.

Tavis appealed to the Alaska Supreme Court. Two years later, the justices found Tavis’ due process rights had been violated. It vacated the superior court’s order.

Let’s be clear—vacating the orders in all these cases does nothing for the harmed Alaskans. Their prolonged detentions are over. Through years-long ordeals, they receive no compensation, no apology nor even acknowledgement from the state and lower courts. Our high court issued these repeated rulings because they were supposed to prevent future violations. But they haven’t, which leaves a big question:

Why are the superior courts continuing to ignore the law, and why is our Alaska Supreme Court hollowly vacating these violations without doing more?

The answer came in Tavis’ case when the Alaska Supreme Court conceded that the courts hadn’t anticipated the legislative branch would not adequately fund the involuntary evaluations and commitments it legislated, and that the state (the executive branch) would pursue those evaluations even if it violated due process. And the courts enabled both branches to get away with it.

Alaska’s judiciary must have skipped school when the separation of powers was taught. Judges have the constitutional duty to tell the state that if it doesn’t have room to forcibly detain Alaskans legally, it must release them. That’s what would happen if these Alaskans with mental illness were criminals.

The Alaska Supreme Court has the power — and duty — to ensure constitutional due process for Alaskans with mental illness. One solution would be for the court to establish a streamlined mechanism where attorneys representing Alaskans being unconstitutionally detained could get an immediate order from the supreme court for the person’s release.

To fail to act means Alaskans with mental illness will continue to be treated worse than criminals.

Val Van Brocklin has worn several professional hats — working with adults with disabilities, as a state and federal prosecutor in Alaska, as an international trainer and author of hundreds of published articles.