My Turn: Supreme Court decision treats Alaskans with mental illness worse than criminals

Published 2:30 am Wednesday, December 3, 2025

A criminal in Alaska who’s 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 exercise their judicial power and hold the legislative and executives branches accountable for a broken, unconstitutional system.

Imagine. You’ve done nothing wrong. The state merely suspects you might be mentally ill and meet involuntary commitment criteria. But, because there’s no room at evaluation facilities, the court orders you confined for weeks before the state determines if they can legally commit you. Tavis’ was illegally confined this way for 24 days.

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’ cofinement was clear. A person can be held in custody pending a psychiatric evaluation when there’s probable cause to believe the person is “gravely disabled” from the 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.

Over a decade ago, our state Supreme Court held the person must be transported “immediately” to the evaluation facility, and the evaluation cannot be delayed simply because facilities had no capacity. That’s correct. Due process doesn’t depend on adequate funding. It’s rooted in our constitution. But the superior courts continued to routinely 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 jails and hospital ERs 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 2021, 2023, and 2024, the high Court confronted three cases involving five Alaskans who were involuntarily confined for 13 to 19 days because there was no room at any evaluation facility. In each, the Supreme Court vacated the superior courts’ orders, while emphasizing how critical it was for the superior courts to enforce due process because of “the massive curtailment of liberty at stake.”

Despite that, two superior courts in Tavis J.’s case defied all those high court rulings. Tavis was involuntarily confined at a hospital for 24 days. In two petitions filed sequentially, two different counselors affirmed to two different superior court judges that there were multiple facilities that would accept Tavis within 24 hours for a psych eval. Both statements were false. The two judges received fifteen status reports during Tavis’ confinement that none of the facilities had capacity.

After 14 days, the first superior court ruled Tavis’ detention violated due process and ordered him discharged. But Tavis wasn’t discharged before a second petition was filed two days later before a different superior court judge. It resulted in Tavis being detained another 10 days before he was finally transported to an evaluation facility.

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

Let’s be clear — vacating these orders does nothing for the harmed Alaskans. Their prolonged detentions are over. They receive no compensation, no apology nor even acknowledgement from the state and lower court. Our high court issues these decisions because they’re supposed to prevent violations from re-occurring. But they haven’t, which leaves a big question:

Why are the superior courts continuing to ignore the law, and why is our Supreme Court hollowly vacating these violations without even emphasizing the rights of these Alaskans anymore?

The answer came in Tavis’ case when the Alaska Supreme Court conceded, “[T]he legal framework surrounding involuntary commitment does not anticipate the failure of the system to respond to the court’s hospitalization orders.”

Translation: The judiciary didn’t anticipate the legislative branch wouldn’t adequately fund the involuntary evaluations and commitments it legislated, and that the state (the executive branch) would those inadequately evaluations even if it violated due process.

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.

Instead, our highest state court continues to give the legislature, the state, and its own trial courts a pass. And real Alaskans who have committed no crime continue to be harmed by a failed system that pretends to protect them.

More recently, our legislature passed statutes for “Crisis Now” centers. Perhaps the failed system is hoping that will help with the capacity problem — if it’s adequately funded.

Regardless, the Alaska Supreme Court should establish a streamlined mechanism where attorneys representing Alaskans being unconstitutionally detained can get an immediate order from the Supreme Court for the person’s release. Otherwise, the Supreme Court is just pretending to protect the rights of Alaskans with mental illness and they will continue to be treated worse than criminals.

Val Van Brocklin has worked with adults with disabilities, as a state and federal prosecutor in Alaska and as an international trainer, and has authored hundreds of published articles. She now occupies herself with flying, fishing, hunting, traveling and writing what she wants.

This story has been updated to correct a typo in the title.