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E.P. V. ALASKA PSYCHIATRIC

INSTITUTE: THE EVOLUTION OF
INVOLUNTARY CIVIL
COMMITMENTS FROM TREATMENT
TO PUNISHMENT
PROUD USAHACHAROENPORN*
ABSTRACT
The Alaska Statutes require the State to prove by clear and
convincing evidence that an individual is either gravely disabled or a
danger to himself or others before that person can be involuntarily
civilly committed. If a person is gravely disabled, the State must also
prove that his condition will improve with treatment during the
commitment. There is no such requirement for those who are a
danger to others, but there is controversy over whether a showing of
improvement is required for those who are a danger to themselves. In
E.P. v. Alaska Psychiatric Institute, E.P. was involuntarily
committed because he was addicted to huffing gasoline, and the
courts found that this condition made him a danger to himself. E.P.
was wrongfully committed for three reasons. First, he was more
likely gravely disabled than a danger to himself; however, he could
not be committed for being gravely disabled because the State could
not show that his condition would improve with treatment. Second,
the State did not meet its burden of proving that E.P. was a danger
to himself. Third, even if E.P. was a danger to himself, the Alaska
Statutes require the State to show that he would improve with
treatment.

INTRODUCTION

Terry Foucha was charged with aggravated battery inside of an

inhabited dwelling and illegal discharge of a .357 revolver.1 Foucha was

* Duke University School of Law, J.D. expected 2011; University of

California, Los Angeles, B.A. 2008. Usahacharoenporn is an editor of the Alaska
Law Review and has worked directly with mentally ill individuals who were
involuntarily committed in California.
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190 ALASKA LAW REVIEW [28:1

found not guilty by reason of insanity and was admitted to a hospital

because he was found to be a menace to himself and others.2 While at
the hospital, he remained “combative, agitated, and psychotic” and
continued to be a “menace to society.”3 Foucha frequently fought with
other patients and consequently was sent to the maximum security
section of the hospital.4 Nevertheless, the Supreme Court of the United
States found his commitment unconstitutional because the State of
Louisiana failed to meet its burden of proving by clear and convincing
evidence that Foucha was a danger.5
In stark contrast, E.P. was involuntarily committed to the Alaska
Psychiatric Institute (API) for ten months on the grounds that he was
mentally ill and was considered a danger to himself.6 Unlike Foucha,
E.P. was never charged with a crime and did not get into altercations at
the hospital.7 E.P. was involuntarily committed because he was addicted
to huffing (or inhaling) substances like gasoline fumes.8 Although E.P.’s
addiction was cited as the reason for his commitment, E.P. did not
receive any treatment for his addiction while he was locked in API
because API is not a substance abuse treatment facility.9 Nevertheless,
the Alaska Supreme Court upheld the commitment and agreed with the
superior court’s finding that E.P. was a danger to himself.10
Mental hospitals provide treatment and medication for thousands
of mentally ill individuals across the nation and are effective for many
patients. However, the denial of liberty that results from an involuntary
commitment to a mental hospital has substantial negative effects on a
person’s physical, social, and mental well-being.11 People who are
committed to psychiatric hospitals also face social consequences, which
makes it harder for them to fit in amongst peers and to find jobs post-
commitment.12 Despite the negative aspects of involuntary
hospitalization, mental hospitals are useful to society when they provide

1. State v. Foucha, 563 So. 2d 1138, 1138–39 (La. 1990).

2. Id. at 1139.
3. Id. at 1141 (internal quotation marks omitted).
4. Id.
5. Foucha v. Louisiana, 504 U.S. 71, 86 (1992).
6. E.P. v. Alaska Psychiatric Inst., 205 P.3d 1101, 1103–06 (Alaska 2009).
7. Id. at 1104.
8. Id. at 1104–06.
9. Id.
10. Id. at 1112.
11. GARY B. MELTON ET AL., PSYCHOLOGICAL EVALUATIONS FOR THE COURTS
301–02 (2d ed. 1997).
12. Beth E. Molnar, Juveniles and Psychiatric Institutionalization: Toward Better
Due Process and Treatment Review in the United States, 2 HEALTH & HUMAN RIGHTS
98, 107–08 (1997).
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2011 INVOLUNTARY CIVIL COMMITMENT 191

treatment for the mentally ill. However, when an individual confined in

a mental hospital does not receive treatment for his illness, the hospital
no longer serves its purpose and becomes merely a prison.
For these reasons, the Supreme Court of the United States
“repeatedly has recognized that civil commitment for any purpose
constitutes a significant deprivation of liberty that requires due process
protection.”13 When deciding whether a commitment is necessary,
courts must weigh the potential harms to the individual, including the
denial of constitutional rights, against the state’s interest in providing
treatment to the individual and preventing future harm to the
individual and to society.14 Because such important individual rights are
at stake, the Supreme Court has held that the state bears the burden of
proving by clear and convincing evidence that the commitment is
necessary.15
In the Alaska Statute sections that governed E.P.’s case, the Alaska
Legislature codified the Supreme Court’s recognition that involuntary
commitments should be used primarily for treatment.16 In Alaska, there
are three groups of mentally ill individuals who can be committed: those
who are gravely disabled, those who are a danger to themselves, and
those who are a danger to others.17 The statute clearly mandates that the
State can commit a gravely disabled person only when he will improve
with treatment.18 But, this requirement is not present when a person is a
danger to others19 because other citizens’ safety concerns are at stake.
However, an important issue in this case, which will be discussed at

13. Addington v. Texas, 441 U.S. 418, 425 (1979) (citing Jackson v. Indiana,
406 U.S. 715 (1972) (Indiana state law allowing pretrial commitment under
lenient conditions of criminal defendants incompetent to stand trial violated due
process); Humphrey v. Cady, 405 U.S. 504 (1972) (renewal of involuntary
commitment under Wisconsin state law required at least an evidentiary
hearing); In re Gault, 387 U.S. 1 (1967) (Arizona court decision to suspend notice
of a juvenile delinquency and detention hearing violated due process, despite
the fact that its stated purpose was to “shield the child from public stigma”);
Specht v. Patterson, 386 U.S. 605 (1967) (Colorado Sex Offenders Act violated
due process because it allowed imposition of indeterminate sentence lengths
without a hearing)). In Addington the Court noted that since the preponderance
standard results in a “risk of increasing the number of individuals erroneously
committed,” the interests of the State of Texas were questionable when that
standard was employed for involuntary commitment. Id. at 426.
14. See Addington, 441 U.S. at 432–33.
15. Id.
16. See ALASKA STAT. § 47.30.655 (2010). For example, section 47.30.655(2) of
the Alaska Statutes states “that persons be treated in the least restrictive
alternative environment consistent with their treatment needs.” § 47.30.655(2).
17. See § 47.30.730(a)(1).
18. See § 47.30.730(a)(3).
19. See § 47.30.730.
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192 ALASKA LAW REVIEW [28:1

length in Part IV.C, is whether the State is required to show that an

individual will improve with treatment when that individual is
committed for being a danger to himself.
In E.P. v. Alaska Psychiatric Institute,20 the Alaska Supreme Court
wrongly upheld E.P.’s commitment because the State failed to prove by
clear and convincing evidence that E.P.’s commitment was necessary.
First, E.P. was more likely gravely disabled than a danger to himself, so
the State should have been required to show that he would improve
with treatment. The State itself admitted that it could not commit E.P.
for being gravely disabled because he would not improve with
treatment.21 The State therefore attempted to commit E.P. on the basis
that he was a danger to himself.22 Second, because the evidence more
clearly supported the assertion that E.P. was gravely disabled, the State
did not meet its burden of showing that E.P. was a danger to himself
with clear and convincing evidence. Third, even if E.P. was a danger to
himself, the statute required that the State show that E.P. would
improve with treatment,23 and the State failed to do so. For these
reasons, E.P.’s involuntary commitment was an unconstitutional
deprivation of his rights and served more as a punishment than as a
form of treatment.
Part I more thoroughly examines the facts of E.P. v. Alaska
Psychiatric Institute24 (“E.P. v. API”) and the sections of the Alaska
Statutes that apply to involuntary civil commitments. Part II describes
the Alaska Supreme Court’s holdings in E.P. v. API. Part III explores the
legal background of involuntary civil commitments with a focus on the
standard of proof and the difficulties of defining the dangerousness
standard. Part IV is a critique of the State’s failure to meet its burden in
E.P.’s case and of the Alaska Supreme Court’s interpretation of the civil
commitment statutes. It explains why the court should not have found
E.P. to be a danger to himself and why this error resulted in a
commitment that was more of a punishment for E.P.’s lifestyle choices
than an effort to treat his mental illness. This section discusses the need
for statutory revisions, including a more concrete definition of
“dangerousness” and a clarification of the elements that must be proved
in civil commitment cases. Finally, the Note proposes alternatives to

20. 205 P.3d 1101 (Alaska 2009).

21. Id. at 1104.
22. Id.
23. See § 47.30.655(6) (“[P]ersons who are mentally ill but not dangerous to
others [may] be committed only if there is a reasonable expectation of improving
their mental condition.”).
24. 205 P.3d 1101.
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2011 INVOLUNTARY CIVIL COMMITMENT 193

civil commitments that would prevent individuals from being

wrongfully committed in the future.

I. E.P.: TO COMMIT OR NOT TO COMMIT?

A. Involuntary Commitment Statutes

Sections 47.30.655 through 47.30.770 of the Alaska Statutes govern

the involuntary civil commitments of mentally ill individuals.25 Section
47.30.655 of the Alaska Statutes states the Legislature’s purpose in
writing these statutes—to “more adequately protect the legal rights of
persons suffering from mental illness.”26 Other principles that guide
these provisions are “that persons be treated in the least restrictive
alternative environment consistent with their treatment needs” and
“that persons who are mentally ill but not dangerous to others be
committed only if there is reasonable expectation of improving their
mental condition.”27
The other sections describe the elements that must be met in order
to commit an individual involuntarily to a mental facility for thirty,
ninety, or 180 days.28 A person must first be committed for thirty days
before he can be re-committed for ninety days,29 and for ninety days
before he can be re-committed for 180 days.30 The individual may then
be committed for successive 180-day terms with no limit to the number
of commitments.31 Generally, to commit an individual for any length of

25. §§ 47.30.655–47.30.770.
26. § 47.30.655.
27. Id.
28. See §§ 47.30.730–770.
29. § 47.30.740(a). Section 47.30.740(a) of the Alaska Statutes states:
At any time during the respondent's 30-day commitment, the professional
person in charge, or that person's professional designee, may file with the court
a petition for a 90-day commitment of that respondent. The petition must
include all material required under AS 47.30.730(a) except that references to “30
days” shall be read as “90 days.”
Id.
30. § 47.30.770(a). Section 47.30.770(a) of the Alaska Statutes states:
The respondent shall be released from involuntary treatment at the expiration of
90 days unless the professional person in charge files a petition for a 180-day
commitment conforming to the requirements of AS 47.30.740(a) except that all
references to “30-day commitment” shall be read as “the previous 90-day
commitment” and all references to “90-day commitment” shall be read as “180-
day commitment.”
Id.
31. § 47.30.770(c). Section 47.30.770(c) of the Alaska Statutes states that
“[s]uccessive 180-day commitments are permissible on the same ground and
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194 ALASKA LAW REVIEW [28:1

time, a court must find by clear and convincing evidence that the
individual is mentally ill, and as a result is likely to cause harm to
himself or others, or that he is gravely disabled.32
“Gravely disabled” is “a condition in which a person as a result of
mental illness is in danger of physical harm arising from . . . complete
neglect of basic needs for food, clothing, shelter, or personal safety” or
the person will suffer “abnormal mental, emotional, or physical distress”
associated with significant impairment of judgment if left untreated.33 In
order to commit an individual for being gravely disabled, the State must
show that there is a reasonable expectation that the individual will
improve with treatment.34
A person likely to cause serious harm is either a person who poses
a substantial risk of bodily harm to that person’s self or to others or a
person who manifests a current intent to carry out plans of serious
harm.35 Unlike a person committed for grave disability, a person who
poses a substantial risk of bodily harm to others may be committed
without showing that the person’s condition will improve with

under the same procedures as the original 180-day commitment. An order of

commitment may not exceed 180 days.” Id.
32. § 47.30.730; § 47.30.740; § 47.30.755. Section 47.30.730(a) of the Alaska
Statutes states:
The petition must (1) allege that the respondent is mentally ill
and as a result is likely to cause harm to self or others or is
gravely disabled; (2) allege that the evaluation staff has
considered but has not found that there are any less restrictive
alternatives available that would adequately protect the
respondent or others; or, if a less restrictive involuntary form
of treatment is sought, specify the treatment and the basis for
supporting it; (3) allege with respect to a gravely disabled
respondent that there is reason to believe that the respondent's
mental condition could be improved by the course of
treatment sought; (4) allege that a specified treatment facility
or less restrictive alternative that is appropriate to the
respondent's condition has agreed to accept the respondent;
(5) allege that the respondent has been advised of the need for,
but has not accepted, voluntary treatment, and request that
the court commit the respondent to the specified treatment
facility or less restrictive alternative for a period not to exceed
30 days; (6) list the prospective witnesses who will testify in
support of commitment or involuntary treatment; and (7) list
the facts and specific behavior of the respondent supporting
the allegation in (1) of this subsection.
§ 47.30.730(a). Sections 47.30.740 and 47.30.755 of the Alaska Statutes
refer back to the factors listed in section 47.30.730(a). §§ 47.30.740, .755.
33. § 47.30.915(7).
34. § 47.30.730.
35. § 47.30.915(10).
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treatment.36 However, the statute is unclear as to whether the State must

show that a person who poses a substantial risk of bodily harm to
himself will likely improve with treatment.37

B. Mental Health History of E.P.

E.P. had a history of huffing gasoline fumes and other substances,

which damaged the frontal lobe of his brain and led to dementia, a
personality disorder, and a “not otherwise specified psychotic
disorder.”38 Prior to the commitments at issue in this case, E.P. was
committed both voluntarily and involuntarily several times to API,
which is a state-run locked mental institution.39 In May 2007, he was
released to an assisted living facility in Big Lake, Alaska but left after a
few days because he “got bored.”40 He voluntarily committed himself to
API for the last time on May 13, 2007.41

C. The Thirty-Day Commitment

Soon after E.P. voluntarily committed himself to API, he expressed

the desire to leave API to live with his sister.42 In order to prevent him
from leaving, API filed a petition to commit E.P involuntarily for thirty
days on August 2, 2007.43 According to Dr. Khanaz Khari, a psychiatrist
at API and the sole witness for the State, E.P. was both gravely disabled
and a threat to himself and others because he wished to continue huffing
upon release.44
Dr. Khari also testified that she did not expect E.P.’s condition to
improve at API because API is not a substance abuse treatment facility.45
She nevertheless recommended that E.P. be committed because API is a
locked facility that would be able to restrict his access to harmful
substances.46 Her theory was supported by the fact that E.P. was a

36. § 47.30.655(6).
37. See id.; § 47.30.730(3); see also infra Part IV.C.
38. E.P. v. Alaska Psychiatric Inst., 205 P.3d 1101, 1103–04 (Alaska 2009).
39. Id.
40. Id. at 1104; Brief of Appellant at 2, E.P. v. Alaska Psychiatric Inst., 205
P.3d 1101 (Alaska 2009) (No. S-12853).
41. Brief of Appellant, supra note 40, at 2.
42. E.P., 205 P.3d at 1104.
43. Brief of Appellant, supra note 40, at 2–3.
44. Id. at 3.
45. E.P., 205 P.3d at 1104.
46. Id.
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196 ALASKA LAW REVIEW [28:1

model patient while he was at API because he did not engage in any
dangerous behavior while he was committed.47
Standing Master Andrew Brown found that E.P. was mentally ill
and gravely disabled but did not find that he was a danger to himself or
others.48 The superior court judge, following the recommendation of the
standing master,49 then committed E.P. to API for thirty days50 pursuant
to section 47.30.735(c) of the Alaska Statutes.51 E.P. objected to this
commitment because according to the statute, a gravely disabled
individual may be committed only if treatment will improve his
condition, and Dr. Khari had testified that she did not expect E.P.’s
condition to improve.52 API agreed with his legal argument but
responded that E.P. should be committed because he was likely to harm
himself, since he wished to continue huffing upon his release.53
Alternatively, API argued that E.P. was a danger to others because he
wanted to live with his sister upon release and she had small children
who could be influenced by E.P.’s huffing habits.54 The superior court
found in favor of API but did not elaborate on its reasoning.55

D. The Ninety-Day Commitment

After E.P. served his thirty-day commitment, API petitioned for an

additional ninety-day commitment56 pursuant to section 47.30.755(a) of
the Alaska Statutes.57 Dr. Khari was again the only witness for the

47. Id.
48. Id.
49. Section 2(b) of the Alaska Rules of Probate Procedure provides that a
“master’s report is not binding until approved by a superior court judge” but
also that a “master’s order of commitment to a treatment facility is effective
pending superior court review.” ALASKA R. PROB. P. § 2(b). Thus, during the
commitment proceedings when the superior court makes a finding, it is acting
off a recommendation from the standing master.
50. E.P., 205 P.3d at 1104–05.
51. Section 47.30.735(c) of the Alaska Statutes states that a court may commit
an individual for thirty days if it finds by clear and convincing evidence that the
individual is “mentally ill and as a result likely to cause harm to [himself] or
others or is gravely disabled.” ALASKA STAT. § 47.30.735(c) (2010).
52. E.P., 205 P.3d at 1104.
53. Id.
54. Id.
55. Id. at 1105.
56. Id.
57. Section 47.30.755(a) of the Alaska Statutes states that after the time limit
specified in section 47.30.735(c), a court may commit an individual for ninety
days if it finds by clear and convincing evidence that the individual is “mentally
ill and as a result likely to cause harm to [himself] or others, or is gravely
disabled.” ALASKA STAT. § 47.30.755(a) (2010).
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2011 INVOLUNTARY CIVIL COMMITMENT 197

State.58 She testified that E.P.’s condition had not changed since the last
hearing and reiterated that he had not exhibited any dangerous behavior
at the hospital.59 Master Brown recommended that E.P. be committed on
the grounds of grave disability and again did not find that he was a
danger to himself or others.60 During the superior court’s review of
Master Brown’s recommendation, E.P. objected on the same grounds as
before—that if he was committed because he was gravely disabled, API
was statutorily required to show a reasonable belief that he would
improve with treatment.61 API argued alternatively that “other people
could be harmed as a result of [E.P’s] choice to drink and abuse
substances”—again referring to the children of E.P.’s sister.62 The
superior court and API agreed with E.P. that it was error to commit him
based on the theory that he was gravely disabled because he would not
improve with treatment.63 However, the superior court concluded that
the evidence provided at both the thirty-day and ninety-day
commitment hearings supported the finding that E.P. was a danger to
himself.64

E. The 180-Day Commitment

When E.P.’s ninety-day commitment expired, API petitioned for a

180-day commitment65 pursuant to section 47.30.770(b) of the Alaska
Statutes.66 The facts of this commitment are largely similar to the first
two: Dr. Khari was the only witness, and she testified that E.P. had not
shown any dangerous behavior except his desire to huff.67 However, this
time a different standing master found E.P. both gravely disabled and a
danger to himself.68 E.P. again objected, but nevertheless the superior
court judge committed him upon a finding that he was a danger to
himself.69

58. E.P., 205 P.3d at 1105.

59. Id.
60. Id.
61. Id. (citing ALASKA STAT. § 47.30.655(6) (2010)).
62. E.P., 205 P.3d at 1105 (internal quotation marks omitted).
63. Id. at 1106; Brief of Appellant, supra note 40, at 11.
64. Brief of Appellant, supra note 40, at 12.
65. E.P., 205 P.3d at 1105.
66. Section 47.30.770(b) of the Alaska Statutes states that if a court finds by
clear and convincing evidence that the grounds set out in section 47.30.775 are
present, then the court may order an individual committed for an additional 180
days from the date that the ninety-day treatment period would have expired.
ALASKA STAT. § 47.30.770(b) (2010).
67. E.P., 205 P.3d at 1105.
68. Id. at 1105–06.
69. Id. at 1106.
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II. THE ALASKA SUPREME COURT’S OPINION

Although all three of E.P.’s commitments had expired and E.P. had
passed away by the time his case reached the Alaska Supreme Court, the
court nevertheless opted to decide the otherwise-moot case because the
questions that it raised are likely to be repeated and are important to the
public interest.70 The court reviewed findings of fact for clear error and
questions of law and statutory interpretation de novo.71
The court first dealt with the disparity in the language of sections
47.30.655 and 47.30.730 of the Alaska Statutes.72 Section 47.30.655 was
added in 1981 and is the preamble that applies to the other sections of
the Alaska Statutes that govern civil commitments.73 It states that
“persons who are mentally ill but not dangerous to others [can] be
committed only if there is reasonable expectation of improving their
mental condition.”74 On the other hand, section 47.30.730, which governs
thirty-day commitments, only requires the State to show that there is
reasonable expectation of improvement for individuals who are gravely
disabled.75 The plain reading of section 47.30.655 suggests that the State
must show a likelihood of improvement for persons who are dangerous
to themselves and persons who are gravely disabled, but section
47.30.730 imposes this requirement only when the person is gravely
disabled.76 The court held that the substantive statute (section 47.30.730)
controls over the preamble (section 47.30.655), so the State needs to
show likelihood of improvement only for individuals who are gravely
disabled.77
The problem was that E.P. was committed because he was a danger
to himself78 and the statutes were unclear as to whether a showing of
potential improvement was required.79 The court rejected E.P.’s
argument that the Legislature intended for those who are likely to harm
themselves to be treated equally to gravely disabled individuals.80 The
court reasoned that the opinion from Wetherhorn v. Alaska Psychiatric

70. Id. at 1106–08 (citing Akpik v. State, 115 P.3d 532, 536 (Alaska 2005)
(articulating three factors courts consider when deciding whether to hear moot
cases)).
71. Id. at 1106.
72. Id. at 1108.
73. Id. The statute was revised by 1981 Alaska Sess. Laws ch. 84, § 1.
74. ALASKA STAT. § 47.30.655(6) (2010) (emphasis added).
75. § 47.30.730.
76. See §§ 47.30.655(6), 47.30.730.
77. E.P., 205 P.3d at 1108–09.
78. See id.
79. See §§ 47.30.655(6), 47.30.730(3).
80. E.P., 205 P.3d at 1108–09, 1112.
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2011 INVOLUNTARY CIVIL COMMITMENT 199

Institute81 distinguished the two groups, explaining that whereas

“danger to self” is concerned with active inclinations to inflict harm,
“grave disability” is more concerned with an inability to function.82
Therefore, the court concluded that if E.P. was committed because he
was a danger to himself, API did not have to show that he would
probably improve with treatment at the facility.83
The court then analyzed whether API had met its burden in
showing that E.P.’s commitment was necessary.84 API first needed to
prove by clear and convincing evidence that E.P. was afflicted with a
mental illness.85 It did so by showing that E.P.’s organic brain damage
qualified as a separate mental illness from his drug addiction and
impaired his ability to exercise judgment.86
Next, the court analyzed whether API had met its burden of
proving by clear and convincing evidence that E.P. was likely to cause
harm to himself or others.87 Section 47.30.735(c) of the Alaska Statutes
allows commitment of people who are “likely to cause harm to [self] or
others” but does not define what “likely to cause harm” means.88 The
court relied on the following definition of “likely to cause serious harm”
from a different section of the statute:89
A person who (A) poses a substantial risk of bodily
harm to that person’s self, as manifested by recent
behavior causing, attempting, or threatening that harm;
(B) poses 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; or (C) manifests a
current intent to carry out plans of serious harm to that
person’s self or another.90
The court concluded that E.P.’s intent to continue to huff
substances qualified as recent behavior causing a substantial risk of

81. 156 P.3d 371 (Alaska 2007).

82. E.P., 205 P.3d at 1109 (quoting Wetherhorn, 156 P.3d at 376).
83. Id.
84. Id.
85. Id.
86. Id.
87. Id. at 1110.
88. ALASKA STAT. § 47.30.735(c) (2010).
89. E.P., 205 P.3d at 1110 (citing ALASKA STAT. § 47.30.915(10) (2008)).
90. § 47.30.915(10).
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200 ALASKA LAW REVIEW [28:1

bodily harm to self and a current intent to carry out plans of serious
harm.91
The court found no need to address the issue of whether E.P. was a
danger to others because it found that he was a danger to himself.92
Affirming all of E.P.’s commitments, the court held that the statutes did
not require API to show that E.P. was likely to improve with treatment.93

III. THE LEGAL BACKGROUND OF INVOLUNTARY COMMITMENT

Part IV will discuss specifically why the Alaska Supreme Court

should not have affirmed E.P.’s commitment. However, it is important
first to understand what involuntary commitments entail and how these
commitments have previously been treated by the law.

A. Involuntary Commitments are a Substantial Deprivation of

Liberty

“[C]ommitment is a deprivation of liberty. It is incarceration

against one’s will, whether it is called ‘criminal’ or ‘civil.’”94 Courts have
acknowledged that involuntary commitments substantially deprive
individuals of freedom in its most basic aspects95 and are a “direct form
of physical restraint.”96 This is the reason why the United States criminal
justice system hinges on the maxim, “innocent until proven guilty,”
which requires the state to prove beyond a reasonable doubt that it is
justified in incarcerating an individual and taking away his
constitutionally protected liberties.97
Criminals are not the only individuals who are routinely
committed to locked institutions against their will—states also often
commit mentally ill individuals to mental hospitals. It is difficult to
avoid the fact that civil commitments also result in the “destruction of
an individual’s personal freedoms” that are “scarcely less total than that
effected by confinement in a penitentiary.”98 Like criminals, those civilly
committed are often locked in small rooms, deprived of access to their
own bank accounts, forced to conform to strict daily routines, and given

91. E.P., 205 P.3d at 1110.

92. Id. at 1111.
93. Id. at 1112.
94. In re Gault, 387 U.S. 1, 50 (1967).
95. See, e.g., Addington v. Texas, 441 U.S. 418, 425–26 (1979).
96. In re Roulet, 590 P.2d 1, 7 (Cal. 1979) (citing In re Roger S., 569 P.2d 1286,
1291 (Cal. 1977)).
97. See, e.g., Addington, 441 U.S. at 423–24.
98. Roulet, 590 P.2d at 4.
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2011 INVOLUNTARY CIVIL COMMITMENT 201

drugs against their will.99 In addition, the stigmatizing consequences

and the mandatory behavior modifications associated with mental
hospitals amount to a “grievous loss” even to a prisoner being
transferred from a prison to a mental hospital.100
Not only do individuals who are civilly committed suffer from
physical restraints and the loss of important rights, they also suffer from
severe social stigma, which in some cases is even more debilitating than
the other consequences of involuntary commitments.101 Many people
have an “irrational fear of the mentally ill” and view them with “distrust
and even loathing.”102 The mentally ill are often victimized and treated
as social outcasts, which lowers their confidence and self-esteem and
affects their ability to obtain employment.103 Furthermore, a significant
portion of society assumes that all mentally ill individuals are
dangerous.104
Because so many personal rights are at stake when a person is
committed to a mental hospital, the Supreme Court of the United States
held that a state may not commit an individual unless the length and
type of commitment relate to the state’s reason for the commitment.105 A
state can civilly commit individuals under the reach of its parens patraie
powers to provide care to citizens who are not able to care for
themselves or under its police power to protect the public from
particularly dangerous individuals when it is “reasonably necessary”

99. See id. at 5–6.

100. Vitek v. Jones, 445 U.S. 480, 488 (1980).
101. Roulet, 590 P.2d at 6–7; Addington, 441 U.S. at 425–26; see also Patrick W.
Corrigan et al., Structural Levels of Mental Illness Stigma and Discrimination, 30
SCHIZOPHRENIA BULL. 481, 482–85, 489 (2004).
102. Roulet, 590 P.2d at 7 (internal quotation marks omitted); see also Peter
Byrne, Stigma of Mental Illness and Ways of Diminishing It, 6 ADVANCES IN
PSYCHIATRIC TREATMENT 65, 65–67 (2000); Jack K. Martin et al., Of Fear and
Loathing: The Role of 'Disturbing Behavior,' Labels, and Causal Attributions in
Shaping Public Attitudes toward People with Mental Illness, 41 J. HEALTH & SOC.
BEHAV. 208, 215–20 (2000); Otto K. Wahl, Mental Health Consumers' Experience of
Stigma, 25 SCHIZOPHRENIA BULL. 467, 470–71 (1999).
103. See Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 378 (Alaska
2007); see also Wahl, supra note 102, at 470–72.
104. Bruce G. Link et al., Public Conceptions of Mental Illness: Labels, Causes,
Dangerousness, and Social Distance, 89 AM. J. PUB. HEALTH 1328, 1332–33 (1999);
J.C. Phelen & B.G. Link, The Growing Belief that People with Mental Illnesses
are Violent: The Role of the Dangerousness Criterion for Civil Commitment, 33
SOC. PSYCHIATRY & PSYCHIATRIC EPIDEMIOLOGY (SUPP.) S7, S7–S8, S10 (1998). In
reality, according to a recent statistical study, severe mental illness alone is not a
good predictor of violent behavior, although the relationship is complicated. See
Eric B. Elbogen & Sally C. Johnson, The Intricate Link Between Violence and
Mental Disorder, 66 ARCHIVES GEN. PSYCHIATRY 152, 155–59 (2009) (“[S]evere
mental illness is not a robust predictor of future violence….”).
105. Jackson v. Indiana, 406 U.S. 715, 738 (1972).
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202 ALASKA LAW REVIEW [28:1

and not “duly oppressive.”106 However, these powers do not extend so

far as to allow a state to commit an individual solely upon a finding that
the individual is mentally ill.107 Therefore, many states’ commitment
statutes mandate a finding of both mental illness and either: (1) grave
disability, in which case the state has parens patraie power108 because the
person is so debilitated that he cannot care for himself; or (2) some form
of dangerousness, in which case the state has police power to protect the
public from the individual.109 Aside from these two government
interests, the main purpose of civil commitment is to treat the mentally
ill, not to punish them.110
Mentally ill individuals should be placed in outpatient treatment
centers whenever doing so would still allow the state to achieve its goals
because community treatment centers are usually “less restrictive” than
mental hospitals.111 Recognizing the importance of establishing
outpatient treatment centers, President Jimmy Carter formed the
Commission on Mental Health, the purpose of which was to create a
large national network of community programs, including halfway
houses, family and group homes, private hospitals, foster-care facilities,
and community mental health centers.112 The Commission
recommended at least $275 million from Congress be used to establish
these community-based programs so that the number of patients in
mental hospitals could be decreased.113 Even though Congress
eventually rejected this recommendation, the proposal provided a
model for states to follow.114 Further, the Americans with Disabilities
Act115 mandates that public entities must administer treatment programs
in the most integrated setting possible while still meeting the needs of
the mentally ill.116

106. Addington, 441 U.S. at 426.

107. O’Connor v. Donaldson, 422 U.S. 563, 575 (1975).
108. Parens patraie is “[t]he state regarded as a sovereign; the state in its
capacity as provider of protection to those unable to care for themselves.”
BLACK’S LAW DICTIONARY 1221 (9th ed. 2009).
109. See, e.g., ALASKA STAT. §§ 47.30.655–770 (2010); ALA. CODE § 22-52-37
(2010); ARK. CODE ANN. § 20-47-207 (2010); UTAH CODE ANN. § 62A-15-631 (West
2011).
110. Hickey v. Morris, 722 F.2d 543, 546–47 (9th Cir. 1983); Addington, 441 U.S.
at 428.
111. See Olmstead v. L.C., 527 U.S. 581, 587 (1999).
112. Meredith Karasch, Note, Where Involuntary Commitment, Civil Liberties,
and the Right to Mental Health Care Collide: An Overview of California's Mental
Illness System, 54 HASTINGS L.J. 493, 501 (2003).
113. Id. at 502.
114. Id.
115. 42 U.S.C. §§ 12181–12189 (2010).
116. See id.
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2011 INVOLUNTARY CIVIL COMMITMENT 203

The State of Alaska has also recognized the rights of the mentally ill
through its civil commitment statutes117 and three recent Alaska
Supreme Court cases.118 In Myers, the court ruled that drugs may not be
administered to mentally ill individuals without consent unless the
court finds that the medication is in the best interests of the patient and
there are no less intrusive alternatives.119 The Wetherhorn court held that
in order to be involuntarily committed on a theory of grave disability, an
individual must be so substantially incapacitated that he “is incapable of
surviving safely in freedom.”120 Finally, the court in Wayne B. ruled that
a mentally ill individual has the right to transcripts from his
commitment hearings and failure to provide these transcripts can result
in reversible error.121

B. The Substantial Deprivation of Rights in Involuntary

Commitments Triggers an Elevated Standard of Proof

Under Alaska law, as required by the United States Supreme

Court’s decision in Addington v. Texas,122 the State always carries the
burden of proving that a commitment is necessary, either because the
individual is gravely disabled or because he is a danger.123 In Addington,
the Supreme Court confronted the problem of what standard of proof
due process requires states to apply in civil commitment proceedings
and decided that states must prove that the commitment is necessary by
at least clear and convincing evidence.124 The standard of proof must
“reflect[] the value society places on individual liberty” and minimize
the risk of a wrong judgment.125 The Court reasoned that an individual’s
interest in the outcome of a civil commitment proceeding is so grave that
due process requires a standard that is higher than the preponderance of
the evidence standard that is usually applied in civil cases.126
The Court considered using the beyond a reasonable doubt
standard, which is applied in criminal cases,127 but concluded that this

117. ALASKA STAT. §§ 47.30.655–770 (2010).

118. Wayne B. v. Alaska Psychiatric Inst., 192 P.3d 989 (Alaska 2008);
Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371 (Alaska 2007); Myers v.
Alaska Psychiatric Inst., 138 P.3d 238 (Alaska 2006).
119. Myers, 138 P.3d at 239.
120. Wetherhorn, 156 P.3d at 384.
121. Wayne B., 192 P.3d at 991.
122. 441 U.S. 418, 427 (1979).
123. ALASKA STAT. § 47.30.755(c) (2010).
124. Addington, 441 U.S. at 433.
125. See id. at 425 (citations omitted).
126. Id. at 427.
127. Id.
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204 ALASKA LAW REVIEW [28:1

standard of proof is not necessary because in civil commitment

proceedings, states do not exercise their power in a punitive sense.
Additionally, erroneous commitments can be avoided by the “layers of
professional review and observations of the patient’s condition, and the
concern of family and friends.”128 Further, it would be too difficult for
states to prove the elements of a civil commitment beyond a reasonable
doubt because the evidence usually consists only of psychologists’ and
psychiatrists’ expert testimonies, which are fallible.129 The Court settled
on the clear and convincing standard as a minimum but left it to the
states to decide whether to apply a higher standard.130
The Alaska Legislature adopted the clear and convincing evidence
standard,131 and the Alaska Supreme Court has recognized the
importance of adhering to that standard because “there is a danger that
the mentally ill may be confined merely because they are physically
unattractive or socially eccentric.”132 Further, the court realized that an
individual could potentially be committed solely for displaying an
abnormal behavior that is seen by some as a sign of a mental or
emotional disorder even though it falls within the normal range of
acceptable behavior.133 The use of the clear and convincing standard
helps ensure that only those who truly need to be committed are subject
to the confines of mental hospitals.134

C. The Difficulties of Defining “Dangerousness”

One aspect of commitment statutes that courts have struggled with

is how to define “dangerousness.” The problem began when the
Supreme Court of the United States found that a state cannot
constitutionally confine a non-dangerous individual without proving
why the commitment is necessary either for the individual or for
society.135
This holding created a need for the states to define the
dangerousness requirement. The dangerousness requirement varies by
state, but there are three major categories of statutes: (1) those that

128. Id. at 428–29.

129. Id. at 429.
130. Id. at 432–33.
131. ALASKA STAT. § 47.30.735(c) (2010).
132. Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 378 (Alaska 2007)
(quoting O’Connor v. Donaldson, 422 U.S. 563, 575 (1975)) (internal quotation
marks omitted).
133. Id.
134. Addington, 441 U.S. at 425–26.
135. O’Connor, 422 U.S. at 576.
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2011 INVOLUNTARY CIVIL COMMITMENT 205

require evidence of a recent dangerous overt act; (2) those that require
an imminent threat that the dangerous behavior is likely to occur again;
and (3) those that require only that the person pose a substantial risk of
harm to himself or others.136 However, there are problems with all three
standards. It is difficult to decide what kind of behavior constitutes a
recent dangerous overt act. There is no evidence that a recent overt act
makes a future one more likely, and basing a commitment on a recent
overt act turns the commitment from a preventative measure into a
punishment for past behavior.137 The imminent threat requirement
involves a large amount of speculation and is unreliable, and the
substantial risk standard, which Alaska uses, is vague.138 The overt act
and imminent threat standards tend to be underinclusive—they do not
encompass some individuals who are dangerous and should be
committed. On the other hand, the substantial risk of harm standard
tends to be overinclusive in that it allows some individuals to be
committed when they are not dangerous.139
In most commitment hearings, the majority of the evidence
presented comes from psychologists’ expert testimonies.140 Prediction of
dangerousness involves two parts: identifying relevant risk factors and
allocating the appropriate weight to each factor.141 Studies have shown
that people struggle greatly with objectively predicting dangerousness
because humans allow preconceived notions to influence their
perception of the data.142 Other obstacles include
“[o]verconfidence, hindsight bias, and the inability to assess covariation
accurately.”143 Clinicians’ predictions result in false positives, or
commitment of those who are not dangerous, about fifty-four to eighty
percent of the time and are no more accurate than flipping a coin.144
Another study found that only one out of three people whom clinicians
predicted to be dangerous actually engaged in dangerous behavior.145

136. David T. Simpson, Involuntary Civil Commitment: The Dangerousness

Standard and its Problems, 63 N.C. L. REV. 241, 247 (1984).
137. Id. at 249–51.
138. Id. at 250.
139. See id. at 252.
140. See Addington v. Texas, 441 U.S. 418, 429 (1979).
141. M. Neil Browne & Ronda R. Harrison-Spoerl, Putting Expert Testimony in
its Epistemological Place: What Predictions of Dangerousness in Court Can Teach Us,
91 MARQ. L. REV. 1119, 1194 (2008).
142. Id. at 1194–95.
143. Id. at 1195.
144. See id. at 1175.
145. Randy K. Otto, On the Ability of Mental Health Professionals to “Predict
Dangerousness”: A Commentary on Interpretations of the “Dangerousness”
Literature, 18 LAW & PSYCHOL. REV. 43, 47 (1994).
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206 ALASKA LAW REVIEW [28:1

Use of actuarial methods, which consist of plugging variables like past

behavior and test responses into a formula, have consistently been more
reliable than human judgment.146 Even with these methods—the
accuracy of which exceeds chance—many nonviolent individuals would
need to be committed to stop one violent act.147
The unreliability of expert testimony regarding dangerousness is
especially troublesome because juries, who are often impressed by these
witnesses’ credentials, may give special weight to experts’ testimonies.148
Further, juries are easily impressed by irrelevant factors such as the
expert’s appearance or speaking ability.149 Contrary to popular opinion,
the American Psychiatric Association itself concluded: “[N]either
psychiatrists nor anyone else ha[s] demonstrated an ability to predict
future violence or dangerousness,” and “the unreliability of psychiatric
predictions of long-term future dangerousness is by now an established
fact within the profession.”150 Along the same lines, Justice Blackmun
once stated that mental health professionals’ predictions of
dangerousness are so unreliable that they should be constitutionally
impermissible in capital cases.151

IV. E.P.: NOT TO COMMIT

Keeping in mind the severe effects of involuntary commitment, the

high standard of proof that is required in commitment hearings, and the
fact that it is difficult to define dangerousness and to predict whether
someone will be dangerous, E.P. was wrongfully committed for three
main reasons. First, E.P. was gravely disabled and not a danger to
himself, but the State could not commit E.P. for being gravely disabled
without showing that he would improve with treatment. Second,
because the State was statutorily precluded from pursuing the gravely
disabled theory, it was forced to pursue the theory that E.P. was a
danger to himself and failed to meet its burden of proving his
dangerousness with clear and convincing evidence. Third, even if E.P.
was a danger to himself, the State was still required to show that he
would likely improve with treatment during his commitment, and it
failed to do so. Due to ambiguity in the statutes and the Alaska Supreme

146. Browne & Harrison-Spoerl, supra note 141, at 1193, 1198; Alec Buchanan,
Risk of Violence by Psychiatric Patients: Beyond the “Actuarial Versus Clinical”
Assessment Debate, 59 PSYCHIATRIC SERVICES 184, 184 (2008).
147. Buchanan, supra note 146, at 188.
148. Browne & Harrison-Spoerl, supra note 141, at 1132–37.
149. Id. at 1136–37.
150. Otto, supra note 145, at 49 (citations omitted).
151. Barefoot v. Estelle, 463 U.S. 880, 923–24 (1983) (Blackmun, J., dissenting).
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2011 INVOLUNTARY CIVIL COMMITMENT 207

Court’s misinterpretation of this ambiguity, the State was relieved of its

burden of proving that E.P. would improve with treatment.
As the Supreme Court of the United States recognized, civil
commitments are a “grievous loss” to the patient because of the
stigmatizations and mandatory behavior modifications associated with
mental hospitals.152 In fact, E.P. may have been better off had he been
charged with a crime because criminals are afforded several due process
rights that are not available to those who are civilly committed.153 For
example, he would have had the right to have a maximum time limit to
his commitment.154 Instead, he was deprived of his due process rights
and committed to API with little evidence and even less effort to help
treat his illness through less restrictive means.155 As a result, he was
taken away from his family and forced to comply with hospital
restrictions without receiving the benefit of treatment.156

A. E.P. Was More Likely Gravely Disabled than a Danger to

Himself

The State of Alaska cannot commit mentally ill individuals unless it

can show that they are either gravely disabled, a danger to themselves,
or a danger to others.157 Even though Master Brown,158 who was the
factfinder during E.P.’s first two hearings, found that E.P. was gravely
disabled and refused to find that he was a danger,159 the Alaska
Supreme Court ultimately approved E.P.’s commitment because it held
that the superior court was justified in finding that he was a danger to
himself.160 The State had more evidence showing E.P. was gravely
disabled than it did showing he was a danger to himself or others.161
However, the State chose to pursue the theory that E.P. was a danger
because the State explicitly admitted that E.P. could not improve, and so
it could not commit him for being gravely disabled.162

152. Vitek v. Jones, 445 U.S. 480, 488 (1980).

153. See, e.g., ALASKA STAT. §§ 12.47.100, 12.47.110 (2010).
154. § 12.47.110.
155. See Brief of Appellant, supra note 40, at 14.
156. See E.P. v. Alaska Psychiatric Inst., 205 P.3d 1101, 1104 (Alaska 2009).
157. See ALASKA STAT. § 47.30.730 (2010).
158. This refers to Master Andrew Brown, who conducted the thirty-day
hearings. Brief of Appellant, supra note 40, at 3. Master Jonathon Lack, who
conducted the 180-day commitment hearing, found that E.P. was both gravely
disabled and likely to harm himself. Id. at 14.
159. E.P., 205 P.3d at 1104.
160. Id. at 1112.
161. See id. at 1104.
162. See id.
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208 ALASKA LAW REVIEW [28:1

Even though the superior court and the Alaska Supreme Court had
the right to review the standing master’s findings,163 appellate courts
should nevertheless give some deference to the fact that the standing
master was the only one who actually heard Dr. Khari and E.P. testify.164
The standing master was in the best position to determine whether E.P.
was gravely disabled or a danger based on E.P.’s demeanor in court and
the doctor’s testimony, and he concluded that E.P. was gravely disabled,
not a danger.165
Master Brown was correct in his conclusion that E.P. was gravely
disabled. According to section 47.30.915 of the Alaska Statutes, a person
who is gravely disabled is in “danger of physical harm arising from
complete neglect for . . . personal safety as to render serious accident,
illness, or death highly probable if care by another is not taken” or, if not
treated, will suffer from severe abnormal mental distress “associated
with significant impairment of judgment, reason, or behavior.”166 E.P.
fulfills not just one but both of these elements. First, he neglected his
personal safety because he chose to huff even though it had already
caused some brain damage.167 Second, E.P. suffered from brain damage,
which impaired his judgment.168 For example, Master Brown found that
E.P. “cannot perceive and understand reality” and “[h]is judgment is
extremely poor and he is unable to make rational decisions.”169 Further,
Dr. Khari, the witness for the State, testified that E.P. “lacks insight and
judgment and cannot understand how huffing gas harms him.”170
However, as E.P. pointed out to the superior court judge, he could
not be committed for being gravely disabled because the extent of his
brain damage precluded any improvement with treatment at API.171
Both parties agreed that the Alaska Statutes172 require the State to show
that a person who is committed for being gravely disabled could
improve with treatment,173 whereas it was debated whether this
requirement is present for those who are a danger to themselves.174
Therefore, the State conceded E.P.’s point and decided to pursue the

163. See id. at 1106.

164. See id. at 1104.
165. See id.
166. ALASKA STAT. § 47.30.915(7) (2010).
167. E.P., 205 P.3d at 1104.
168. Id.
169. Id.
170. Id.
171. Id.
172. See ALASKA STAT. § 47.30.730(3) (2010).
173. E.P., 205 P.3d at 1104.
174. See id. at 1108.
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2011 INVOLUNTARY CIVIL COMMITMENT 209

theory that E.P. was a danger to himself.175 But this theory failed for two
reasons: E.P. was not a danger to himself, and even if he was, the State
still had to show that he could have improved with treatment.

B. The State Failed to Meet its Burden of Proving that E.P. Was
Likely to Harm Himself

API failed to show that E.P. was a danger by clear and convincing
evidence, which is the minimum standard of proof that is required by
the U.S. Constitution176 and section 47.30.755 of the Alaska Statutes. The
only evidence that the State put forth was the testimony of Dr. Khari, a
psychologist that worked at API, who repeatedly stated that E.P.
displayed no dangerous behavior while he was committed (although
she did say that he would resume huffing if released).177 Further, the
statutes do not clearly define “dangerousness,”178 thus leaving a lot of
discretion to the courts.
As a result of the dearth of evidence, there were several
inconsistencies among the opinions of the standing masters, the superior
court, and the Alaska Supreme Court, and among the findings for the
thirty-, ninety-, and 180-day commitments. At the thirty- and ninety-day
commitment hearings, the standing master found that E.P. was gravely
disabled but did not find that he was a danger to himself or others.179 At
the 180-day commitment hearing, a different standing master found that
E.P. was both gravely disabled and a danger to himself.180 The superior
court committed E.P. for thirty days without elaborating on whether it
found him gravely disabled or a danger to himself or others.181 For the
ninety- and 180-day commitments, the superior court agreed that E.P.
was a danger to himself and found that he was not gravely disabled.182
The Alaska Supreme Court found all three commitments were justified
because E.P. was a danger to himself.183
Dr. Khari’s testimony did not show that E.P. was a danger to
himself by clear and convincing evidence. Dr. Khari did identify some
risk factors during her testimony: E.P. had a history of huffing gas and
using alcohol; he expressed a desire to continue engaging in these

175. Brief of Appellant, supra note 40, at 11–12.

176. Addington v. Texas, 441 U.S. 418, 425 (1979).
177. See E.P., 205 P.3d at 1105.
178. See ALASKA STAT. § 47.30.915 (2010).
179. E.P., 205 P.3d at 1104–05.
180. Id. at 1105.
181. Id.
182. Id. at 1105–06.
183. Id. at 1112.
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210 ALASKA LAW REVIEW [28:1

activities; and because of his brain damage, he lacked insight and

judgment.184 However, she also testified that E.P. exhibited no
dangerous behavior185 and that he was a model patient at API.186 These
statements taken together do not amount to clear and convincing
evidence that E.P. was a danger to himself. As discussed above, fifty-
four to eighty percent of the individuals that experts predict will be
dangerous do not later exhibit any dangerous behavior at all.187 Thus,
reasonable doubts regarding predictions of a person’s future
dangerousness, like the doubts presented by Dr. Khari’s testimony,
should be resolved in favor of finding the person not dangerous.
One of the reasons why the Supreme Court of the United States
concluded that a clear and convincing standard, rather than a higher
standard, should be used in civil commitment hearings is that erroneous
commitments can be avoided or corrected by “layers of professional
review and observation[s] of the patient’s condition, and the concern of
family.”188 Here, E.P. was not given layers of professional review
because only one doctor testified at all three of his hearings.189 Concern
of family did end up being a factor in E.P’s case because E.P.’s family
was willing to help; his sister was willing to take care of E.P. so that he
would not have to live in a hospital.190 However, this fact was actually
used against E.P. because the courts believed that he would be a poor
role model for his sister’s children.191 Therefore, not only did the State
fail to meet its burden of proof, but the safeguards that the Supreme
Court predicted would prevent wrongful commitments failed to protect
E.P.192

C. Those Who are Harmful to Themselves Can Be Committed Only

When the State Shows They Will Improve With Treatment

Even if E.P. was a danger to himself, the State was statutorily

required to show that there was a reasonable expectation that his mental
condition would improve, which was a burden that the State failed to
carry. The Alaska Legislature acknowledged that the rights of the
mentally ill must be protected by ensuring that commitments are

184. Id. at 1104.

185. Id. at 1105.
186. Id. at 1104.
187. Browne & Harrison-Spoerl, supra note 141, at 1175.
188. Addington v. Texas, 441 U.S. 418, 428–29 (1979).
189. E.P., 205 P.3d at 1104–05.
190. Id. at 1104.
191. Id.
192. See Addington, 441 U.S. at 428–29.
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2011 INVOLUNTARY CIVIL COMMITMENT 211

primarily used for treatment unless the safety of others is at stake.193

Therefore, it enacted section 47.30.655 of the Alaska Statutes (hereinafter
“the preamble”), which states the principle “that persons who are
mentally ill but not dangerous to others be committed only if there is
reasonable expectation of improving their mental condition.”194 This
means that the State was required to show that E.P.’s condition would
improve at the mental hospital because he was found to be a danger to
himself, not to others. The parties agreed that E.P. would likely never
improve with any kind of treatment and that the reason he was kept at
API was to keep him from having access to gasoline.195 E.P.’s
commitment was a direct contradiction of the Legislature’s intent to
protect the rights of mentally ill individuals who are not a danger to
others.
The Alaska Supreme Court wrongly reasoned that section 47.30.730
of the Alaska Statutes, which requires the State to show that there is
reasonable expectation of improvement only for individuals who are
gravely disabled, trumps the preamble.196 The relevant part of section
47.30.730 states: “[W]ith respect to a gravely disabled respondent [the
State must show that] there is reason to believe that the respondent’s
mental condition could be improved by the course of treatment
sought.”197 In other words, section 47.30.730 states that gravely disabled
individuals must reasonably improve with treatment whereas the
preamble states that all groups except those who are dangerous to others
must reasonably improve with treatment.
The Alaska Supreme Court itself stated that “it is an established
principle of statutory construction that all sections of an act are to be
construed together so that all have meaning and no section conflicts
with another.”198 The two sections do not contradict each other because
although section 47.30.730 does not specifically mention that those who
are dangerous to themselves must reasonably improve with treatment, it
does not preclude the requirement.199 Further, the court has also stated
that when a “section deals with a subject in general terms and another
deals with a part of the same subject in a more detailed way, the two
should be harmonized, if possible.”200 Section 47.30.730 deals with the

193. See ALASKA STAT. § 47.30.655 (2010).

194. § 47.30.655(6) (emphasis added).
195. E.P., 205 P.3d at 1104.
196. Id. at 1108.
197. § 47.30.730(3).
198. N. Alaska Envtl. Ctr. v. State, Dep’t of Natural Res., 2 P.3d 629, 635
(Alaska 2000) (quoting In re Hutchinson, 577 P.2d 1074, 1075 (Alaska 1978)).
199. See §§ 47.30.730, 47.30.655.
200. N. Alaska Envtl. Ctr., 2 P.3d at 635 (quoting Hutchinson, 577 P.2d at 1075).
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212 ALASKA LAW REVIEW [28:1

subject in specific terms because it mentions people who are gravely

disabled in particular, whereas the preamble deals with the subject
generally by encompassing all individuals besides those who are
dangerous to others.201 One can harmonize these two sections by
reading them to mean that all individuals who are not dangerous to
others (including those who are gravely disabled) must improve with
treatment in order to be involuntarily committed.
The statutes should be read to require a showing of reasonable
improvement for those who are dangerous to themselves because the
Alaska Supreme Court seeks to “give effect to the intent of the
Legislature.”202 The Alaska Legislature wrote the preamble for a
reason—to make its intent clear. The Legislature chose to write
specifically that persons who are mentally ill but not dangerous to
others must reasonably be expected to improve with treatment in order
to be committed. The preamble clearly states in its first sentence that it
applies to sections “47.30.660 and 47.30.670–47.30.915” of the Alaska
Statutes, and section 47.30.730 falls within this range.203 Therefore, the
Alaska Legislature did not intend for section 47.30.730 to trump the
preamble.
In Wetherhorn, the Alaska Supreme Court stated that it interprets
the Alaska Statutes “in light of precedent, reason, and policy.”204
Reading the Alaska Statutes to require a showing of probable
improvement for those who are dangerous to themselves is consistent
with precedent and policy.205 In the three most recent cases regarding
involuntary commitments, the Alaska Supreme Court construed the law
in favor of expanding rights for the mentally ill.206 The court’s reading of

201. §§ 47.30.730, 47.30.655.

202. See N. Alaska Envtl. Ctr., 2 P.3d at 634 (citing In re Johnstone, 2 P.3d 1226,
1231 (Alaska 2000)).
203. §§ 47.30.730, 47.30.655.
204. Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 375 (Alaska 2007).
205. Cf. Wayne B. v. Alaska Psychiatric Inst., 192 P.3d 989 (Alaska 2008);
Wetherhorn, 156 P.3d 371; Myers v. Alaska Psychiatric Inst., 138 P.3d 238 (Alaska
2006).
206. See Wayne B., 192 P.3d at 990 (vacating orders committing a patient and
requiring administration of psychotropic drugs on the grounds that the lower
court erred in not transcribing the standing master’s original hearing on the
matter); Wetherhorn, 156 P.3d at 374 (holding “that the definition of ‘gravely
disabled’ in AS 47.30.915(7)(B) is constitutional if construed to require a level of
incapacity so substantial that the respondent is incapable of surviving safely in
freedom”); Myers, 138 P.3d at 239 (holding that unless there is an emergency, a
state may only administer psychotropic drugs to a non-consenting patient if a
court determines that the “medication is in the best interests of the patient and
no less intrusive alternative treatment is available“).
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2011 INVOLUNTARY CIVIL COMMITMENT 213

the statutes in this case directly contradicts the trend towards protecting
the rights of individuals who have been involuntarily committed.
The Alaska Legislature recognized the importance of requiring the
State to show that a person who is dangerous to himself will improve
with treatment.207 However, this requirement was ignored in E.P.’s case.
API openly admitted that E.P.’s condition would not improve and that
the sole purpose of his commitment was to keep him in a locked facility
to prevent him from getting access to gasoline.208 Had the commitment
statutes been correctly interpreted, E.P.’s commitment would not stand
because he was not being treated for his condition and because the State
would not have been able to meet its burden of proving all of the
requisite elements of a civil commitment.
A better way to treat E.P.’s condition would have been to put him
in a specialty outpatient substance abuse program or treatment center.
Treatments for inhalant addicts are complicated and require more
resources than treatments for people addicted to other types of drugs.209
However, there was no real effort to find E.P. an appropriate treatment
center that could provide these resources either in Alaska or in another
state.210 The Alaska Statutes require that the commitment be the least
restrictive possible,211 and API was not the least restrictive alternative
for E.P. In fact, Dr. Khari admitted that “the only benefit that API
provided was the structure of a locked facility.”212 Furthermore, simply
locking up inhalant addicts and providing no other treatment is not a
recommended method of dealing with inhalant abuse.213

D. Suggested Alterations to the Current Commitment System

The wrongful commitment of E.P. should be used as an example to

prevent future wrongful commitments. This case helped shed light on

207. See § 47.30.655(6). This section requires “that persons who are mentally ill
but not dangerous to others be committed only if there is a reasonable
expectation of improving their mental condition.” Id. This wording places
mentally ill individuals into two groups: those who are dangerous to others and
those who are not dangerous to others. Because the statute does not identify to
which group those who are a danger to themselves belong, the literal reading
suggests that they belong to the latter group. Thus, they can be committed only
if there is a reasonable expectation of improving their mental condition.
208. E.P. v. Alaska Psychiatric Inst., 205 P.3d 1101, 1104 (Alaska 2009).
209. Ctr. for Substance Abuse Treatment, U.S. Dep’t of Health and Human
Serv., Inhalants, SUBSTANCE ABUSE TREATMENT ADVISORY, Mar. 2003, at 1, 3–5,
available at http://www.inhalants.org/Inhalants_March2003.pdf.
210. Brief of Appellant, supra note 40, at 4.
211. § 47.30.655.
212. Brief of Appellant, supra note 40, at 4.
213. See Inhalants, supra note 209, at 3–5.
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214 ALASKA LAW REVIEW [28:1

several areas that can be improved within the current civil commitment
system in Alaska. First, the Alaska Legislature should more clearly
define “dangerousness” within the specific sections that deal with civil
commitments and should provide patients the right to be diagnosed by
more than one mental health professional in regards to dangerousness.
Second, the Legislature should specify that a showing of probable
improvement is needed for commitments of individuals who are found
to be dangerous to themselves. Last, the State should invest in more
efficient outpatient treatment facilities and programs.
The lack of a definition of “likely to cause harm” in the relevant
civil commitment statutes214 led the Alaska Supreme Court to rely on a
definition from another section of the statute.215 It also caused
disagreement among Master Brown, the superior court judge, and the
Alaska Supreme Court regarding whether E.P. was likely to cause harm
to himself.216 Even if the Legislature intended for the definition from
section 47.30.915 of the Alaska Statutes to apply to the sections that
governed E.P.’s case, the given definition is still too vague. Section
47.30.915 defines a person who is “likely to cause serious harm” as one
who “poses a substantial risk of bodily harm . . . as manifested by recent
behavior causing, attempting, or threatening that harm” or “manifests a
current intent to carry out plans of serious harm.”217 This leaves a lot of
discretion to the courts to decide what constitutes substantial risk—is
smoking a pack of cigarettes a day substantial risk of bodily harm? What
constitutes recent behavior—in the past week, month, year, or lifetime?
Does mental harm qualify as bodily harm? How current must a current
intent be, and does a person have to act to carry out that intent?
Defining “likely to cause harm” more clearly would answer most of
these concerns and make it easier for courts to make clear and confident
decisions about whether a mentally ill individual should be committed.
Giving individuals the right to require the State to present more
than one expert witness at their hearings would help prevent wrongful
commitments, especially in cases where it is debatable whether the
individual’s commitment is necessary. In E.P.’s case, only one doctor
testified to his dangerousness.218 Because studies have shown that
psychologists’ predictions of dangerousness are unreliable,219 providing

214. See § 47.30.730.

215. E.P. v. Alaska Psychiatric Inst., 205 P.3d 1101, 1110 (Alaska 2009) (using
section 47.30.915 of the Alaska Statutes).
216. See E.P., 205 P.3d at 1104.
217. ALASKA STAT. § 47.30.915(10) (2010).
218. See id. at 1105.
219. See Barefoot v. Estelle, 463 U.S. 880, 916 (1983) (Blackmun, J., dissenting)
(“The Court holds that psychiatric testimony about a defendant’s future
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2011 INVOLUNTARY CIVIL COMMITMENT 215

“layers of professional review and observation of the patient’s

condition,” as the Supreme Court suggested,220 would help make
commitments more consistent. It seems clear in the preamble221 to the
Alaska civil commitment statutes that the Legislature intended for an
individual who is a danger to himself to be committed only when the
State can show that the individual will likely improve with treatment.
However, the court was forced to rely on its own interpretation of the
statute because this element was not expressly included in the
substantive commitment statutes.222 The Alaska Legislature should
specify within the commitment statutes whether a showing of probable
improvement is required for individuals who are shown to be a danger
to themselves. This small action would have made E.P.’s commitment
impossible because API repeatedly stated that E.P. would not improve
at its facility.223
E.P. needed substance abuse treatment but was locked in API
because the State believed it was necessary to restrict his access to
inhalants, even though API does not provide any substance abuse
treatment.224 The record mentions that E.P. had tried an outpatient
treatment center but “got bored” and left.225 This indicates that perhaps
the available treatment centers were not adequate for his needs. The
Legislature has already expressed interest in funding more community
programs.226 The realization of these goals would provide efficient
alternatives to the restrictive environment of API for people like E.P.
who need treatment but do not need to be in a locked facility.

CONCLUSION

In E.P. v. Alaska Psychiatric Institute,227 the State did not want E.P. on
the streets because he was likely to continue to huff. It found a loophole
in the civil commitment statutes that allowed it to commit E.P. to API.

dangerousness is admissible, despite the fact that such testimony is wrong two
times out of three.”); Addington v. Texas, 441 U.S. 418, 429 (1979) (noting the
“fallibility of psychiatric diagnosis”); Browne & Harrison-Spoerl, supra note 141,
at 1175; Otto, supra note 145, at 47; cf. Buchanan, supra note 146, at 184, 188
(stating that psychiatrists and psychologists can predict violence but that many
nonviolent patients would have to be detained to prevent one violent act).
220. Addington, 441 U.S. at 428–29.
221. § 47.30.655
222. See § 47.30.730; E.P., 205 P.3d at 1108.
223. See E.P., 205 P.3d at 1104.
224. See id.
225. Brief of Appellant, supra note 40, at 2.
226. See S.B. 48, 27th Leg. (Alaska 2011), available at http://
www.legis.state.ak.us/basis/get_bill_text.asp?hsid=SB0048A&session=27.
227. 205 P.3d 1101.
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216 ALASKA LAW REVIEW [28:1

The State committed E.P. by claiming that he was a danger to himself

when the more likely theory was that he was gravely disabled. But E.P.
had to be committed under the theory that he was a danger to himself or
he could not have been committed at all because API was unable to
show that E.P. would improve with treatment. The commitment forced a
man to spend his last days in a locked facility, separated from his family
and friends and deprived of treatment—the signs of a commitment that
serves as a punishment, not as a source of treatment.
Criminal commitments punish individuals; civil commitments
should treat individuals. The State of Alaska has taken substantial steps
in the last decade to recognize this distinction through its civil
commitment statutes228 and the three civil commitment cases that
preceded E.P.’s case.229 However, the wrongful commitment of E.P.
shows why the Alaska civil commitment system still needs further
improvement. The clarification of the civil commitment statutes and the
creation of efficient halfway houses are concrete steps that can be taken
to protect the rights of the mentally ill against wrongful commitments
and to ensure that civil commitments serve their purpose of treating the
mentally ill, not punishing them.

228. See ALASKA STAT. § 47.30.655 (2010) (“The purpose of the 1981 major
revision of Alaska civil commitment statutes…is to more adequately protect the
legal rights of persons suffering from mental illness.“).
229. See cases cited supra note 206.