Bill Text: HI SB2654 | 2014 | Regular Session | Introduced

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Bill Title: Acquittal on Ground of Physical or Mental Disease, Disorder, or Defect Excluding Responsibility; High Security Correctional Facility; Violent Felonies; Mental Health Treatment

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2014-01-21 - Referred to PSM/HTH/JDL, WAM. [SB2654 Detail]

Download: Hawaii-2014-SB2654-Introduced.html

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THE SENATE	S.B. NO.	2654
TWENTY-SEVENTH LEGISLATURE, 2014
STATE OF HAWAII

A BILL FOR AN ACT

 

 

relating to Acquittal on the ground of physical or mental disease, disorder, or defect excluding responsibility.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 

     SECTION 1.  Chapter 706, Hawaii Revised Statutes, is amended by adding a new section to part IV to be appropriately designated and to read as follows:

     "§706-    Term of placement of persons acquitted on the ground of physical or mental disease, disorder, or defect excluding responsibility; violent felonies; high security correctional facility.  (1)  A person who has been acquitted of a violent felony on the ground of physical or mental disease, disorder, or defect excluding responsibility may be placed in an appropriate high security correctional facility for custody, care, and treatment pursuant to section 704-411 for a term that shall be the same as the indeterminate term of imprisonment for the violent felony that the defendant is acquitted.

     (2)  As used in this section, "violent felony" means a felony including but not limited to:

    (a)   Murder in the first degree under section 707-701;

    (b)   Murder in the second degree under section 707-701.5;

    (c)   Manslaughter under section 707-702;

    (d)   Negligent homicide in the first degree under section 707-702.5;

    (e)   Assault in the first degree under section 707-710;

    (f)   Kidnapping under section 707-720;

    (g)   Sexual assault in the first degree under section 707-730; and

    (h)   Sexual assault in the second degree under section 707-731."

     SECTION 2.  Section 334-16, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§334-16[]]  Annual report; forensic patient data.  The department of health shall submit an annual report to the legislature no later than twenty days prior to the convening of each regular session which, at a minimum, shall summarize yearly data on forensic patients, including:

     (1)  Gross numbers for admissions to and discharges from the Hawaii state hospital;

     (2)  The number of admissions to, discharges from, and lengths of stays in the Hawaii state hospital, broken down by the following commitment categories:

         (A)  Original order under section 704-411(1)(a);

         (B)  Pending examination under section [704-411(3);] 704-411(4);

         (C)  Maximum seventy-two-hour recommitment pending examination under section 704-413(1);

         (D)  Original order under section 704-404; and

         (E)  Original order under section 704-406;

     (3)  Number of persons committed to the Hawaii state hospital by each court and county;

     (4)  Gross lengths of stay in the Hawaii state hospital for:

         (A)  Patients discharged during the fiscal year; and

         (B)  Individuals remaining as inpatients at the end of the fiscal year; and

     (5)  Number of patients in the Hawaii state hospital on forensic status, broken down by categories of underlying crimes, such as by crimes against the person, sex offenses, and property crimes, and by grade of offense."

     SECTION 3.  Section 353-7, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

     "(b)  The facility shall:

     (1)  Provide extensive control and correctional programs for categories of persons who cannot be held or treated in other correctional facilities including, but not limited to:

         (A)  Individuals committed because of serious predatory or violent crimes against the person;

         (B)  Intractable recidivists;

         (C)  Persons characterized by varying degrees of personality disorders;

         (D)  Recidivists identified with organized crime; [and]

         (E)  Violent and dangerously deviant persons; and

         (F)  Individuals who are acquitted of a violent felony on the ground of physical or mental disease, disorder, or defect excluding responsibility, including but not limited to:

              (i)  Murder in the first degree under section 707-701;

             (ii)  Murder in the second degree under section 707-701.5;

            (iii)  Manslaughter under section 707-702;

             (iv)  Negligent homicide in the first degree under section 707-702.5;

              (v)  Assault in the first degree under section 707-710;

             (vi)  Kidnapping under section 707-720;

            (vii)  Sexual assault in the first degree under section 707-730; or

           (viii)  Sexual assault in the second degree under section 707-731,

              and the court has determined pursuant to section 704-411 that custody and treatment is appropriate at the facility rather than to be placed in the custody of the director of health for care and treatment;

     (2)  Provide correctional services including, but not limited to, psychiatric and psychological evaluation, social inventory, correctional programming, and medical and dental services; and

     (3)  Provide recreational, educational, occupational training, and social adjustment programs."

     SECTION 4.  Section 353-13.3, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§353-13.3[]]  Mental health care.  The department shall be responsible for providing mental health services in community correctional centers[.] under section 353-6 and high security correctional facilities under section 353-7.  The department shall collaborate with the department of health for appropriate mental health treatment and have access to the list of certified mental health examiners determined by the department of health to evaluate and report on the physical and mental conditions of persons in custody."

     SECTION 5.  Section 704-411, Hawaii Revised Statutes, is amended to read as follows:

     "§704-411  Legal effect of acquittal on the ground of physical or mental disease, disorder, or defect excluding responsibility; commitment; conditional release; discharge; procedure for separate post-acquittal hearing.  (1)  When a defendant is acquitted on the ground of physical or mental disease, disorder, or defect excluding responsibility, the court, on the basis of the report made pursuant to section 704-404, if uncontested, or the medical or psychological evidence given at the trial or at a separate hearing, shall order that:

    (a)   The defendant shall be committed to the custody of the director of health to be placed in an appropriate institution for custody, care, and treatment if the court finds that the defendant:

         (i)  Is affected by a physical or mental disease, disorder, or defect;

        (ii)  Is acquitted of an offense other than a violent felony;

      [(ii)]  (iii)  Presents a risk of danger to self or others; and

     [(iii)]  (iv)  Is not a proper subject for conditional release;

          provided that the director of health shall place defendants charged with misdemeanors or felonies not involving violence or attempted violence in the least restrictive environment appropriate in light of the defendant's treatment needs and the need to prevent harm to the person confined and others.  The county police departments shall provide to the director of health and the defendant copies of all police reports from cases filed against the defendant that have been adjudicated by the acceptance of a plea of guilty or nolo contendere, a finding of guilt, acquittal, acquittal pursuant to section 704‑400, or by the entry of a plea of guilty or nolo contendere made pursuant to chapter 853, so long as the disclosure to the director of health and the defendant does not frustrate a legitimate function of the county police departments; provided that expunged records, records of or pertaining to any adjudication or disposition rendered in the case of a juvenile, or records containing data from the United States National Crime Information Center shall not be provided.  The county police departments shall segregate or sanitize from the police reports information that would result in the likelihood or actual identification of individuals who furnished information in connection with the investigation or who were of investigatory interest.  Records shall not be re-disclosed except to the extent permitted by law;

    (b)   The defendant may be placed in an appropriate high security correctional facility for custody, care, and treatment for a term determined by the court pursuant to section 706-   if the court finds that the defendant:

         (i)  Is affected by a physical or mental disease, disorder, or defect;

        (ii)  Is acquitted of a violent felony; and

       (iii)  Presents a risk of danger to self or others.

          The county police departments shall provide to the director of public safety and the defendant copies of all police reports from cases filed against the defendant that have been adjudicated by the acceptance of a plea of guilty or nolo contendere, a finding of guilt, acquittal, acquittal pursuant to section 704‑400, or by the entry of a plea of guilty or nolo contendere made pursuant to chapter 853, so long as the disclosure to the director of public safety and the defendant does not frustrate a legitimate function of the county police departments; provided that expunged records, records of or pertaining to any adjudication or disposition rendered in the case of a juvenile, or records containing data from the United States National Crime Information Center shall not be provided.  The county police departments shall segregate or sanitize from the police reports information that would result in the likelihood or actual identification of individuals who furnished information in connection with the investigation or who were of investigatory interest.  Records shall not be re-disclosed except to the extent permitted by law;

  [(b)]   (c)  The defendant shall be granted conditional release with conditions as the court deems necessary if the court finds that the defendant is affected by physical or mental disease, disorder, or defect and that the defendant presents a danger to self or others, but that the defendant can be controlled adequately and given proper care, supervision, and treatment if the defendant is released on condition.  For any defendant granted conditional release pursuant to this paragraph, and who was charged with a petty misdemeanor, misdemeanor, or violation, the period of conditional release shall be no longer than one year; or

  [(c)]   (d)  The defendant shall be discharged if the court finds that the defendant is no longer affected by physical or mental disease, disorder, or defect or, if so affected, that the defendant no longer presents a danger to self or others and is not in need of care, supervision, or treatment.

     (2)  In the case of a defendant who is acquitted of a violent felony, the court shall determine whether the defendant shall be committed to the custody of the director of health under subsection (1)(a) or placed in an appropriate high security correctional facility under subsection (1)(b) for custody, care, and treatment.  The court's determination is subject to change based on any medical or psychological evidence, evaluations, or updates received after an order is made pursuant to subsection (1).

     [(2)] (3)  The court, upon its own motion or on the motion of the prosecuting attorney or the defendant, shall order a separate post-acquittal hearing for the purpose of taking evidence on the issue of physical or mental disease, disorder, or defect and the risk of danger that the defendant presents to self or others.

     [(3)] (4)  When ordering a hearing pursuant to subsection [(2):] (3):

    (a)   In nonfelony cases, the court shall appoint a qualified examiner to examine and report upon the physical and mental condition of the defendant.  The court may appoint either a psychiatrist or a licensed psychologist.  The examiner may be designated by the director of health from within the department of health.  The examiner shall be appointed from a list of certified examiners as determined by the department of health.  The court, in appropriate circumstances, may appoint an additional examiner or examiners; and

    (b)   In felony cases, including violent felony cases, the court shall appoint three qualified examiners to examine and report upon the physical and mental condition of the defendant.  In each case, the court shall appoint at least one psychiatrist and at least one licensed psychologist.  The third member may be a psychiatrist, a licensed psychologist, or a qualified physician.  One of the three shall be a psychiatrist or licensed psychologist designated by the director of health from within the department of health.  The three examiners shall be appointed from a list of certified examiners as determined by the department of health.

To facilitate the examination and the proceedings thereon, the court may cause the defendant, if not then confined, to be committed to a hospital or other suitable facility, or be temporarily detained at a high security correctional facility for the purpose of examination for a period not exceeding thirty days or such longer period as the court determines to be necessary for the purpose upon written findings for good cause shown.  The court may direct that qualified physicians or psychologists retained by the defendant be permitted to witness the examination.  The examination and report and the compensation of persons making or assisting in the examination shall be in accord with section 704-404(3), (4)(a) and (b), (6), (7), (8), and (9).  As used in this [section,] subsection, the term "licensed psychologist" includes psychologists exempted from licensure by section 465-3(a)(3).

     [(4)] (5)  Whether the court's order under subsection (1) is made on the basis of the medical or psychological evidence given at the trial, or on the basis of the report made pursuant to section 704-404, or the medical or psychological evidence given at a separate hearing, the burden shall be upon the State to prove, by a preponderance of the evidence, that the defendant is affected by a physical or mental disease, disorder, or defect and may not safely be discharged and that the defendant should be either committed or conditionally released as provided in subsection (1).

     [(5)] (6)  In any proceeding governed by this section, the defendant's fitness shall not be an issue.

     (7)  As used in this section, "violent felony" means a felony including but not limited to:

    (a)   Murder in the first degree under section 707-701;

    (b)   Murder in the second degree under section 707-701.5;

    (c)   Manslaughter under section 707-702;

    (d)   Negligent homicide in the first degree under section 707-702.5;

    (e)   Assault in the first degree under section 707-710;

    (f)   Kidnapping under section 707-720;

    (g)   Sexual assault in the first degree under section 707-730; and

    (h)   Sexual assault in the second degree under section 707-731."

     SECTION 6.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 7.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 8.  This Act shall take effect upon its approval.

 

INTRODUCED BY:	_____________________________

 

 

Report Title:

Acquittal on Ground of Physical or Mental Disease, Disorder, or Defect Excluding Responsibility; High Security Correctional Facility; Violent Felonies; Mental Health Treatment

 

Description:

Allows the court to place a defendant acquitted of a violent felony on the ground of physical or mental disease, disorder, or defect excluding responsibility in an appropriate high security correctional facility for custody, care, and treatment for a term that is the same as the indeterminate term of imprisonment for the violent felony that the defendant is acquitted.  Requires the director of public safety to include persons acquitted of a violent felony on the ground of physical or mental disease, disorder, or defect excluding responsibility for placement and treatment at high security correctional facilities.  Requires the department of public safety to provide mental health services in high security correctional facilities and to collaborate with the department of health for treatment.

 

 

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