SB2992

Report Title:

Mentally ill criminals; fitness to proceed

Description:

Provides that if defendant regains fitness to proceed but is not prosecuted, defendant shall be involuntarily committed if defendant meets appropriate criteria. Provides that notice of commitment or discharge proceedings be provided to victim's family.

THE SENATE	S.B. NO.	2992
TWENTY-FIRST LEGISLATURE, 2002
STATE OF HAWAII

A BILL FOR AN ACT

 

RELATING TO FITNESS TO PROCEED.

 

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

SECTION 1. Section 334-60.4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The court shall set a hearing on the petition and notice of the time and place of such hearing shall be served in accordance with, and to those persons specified in, a current order of commitment. If there is no current order of commitment, notice of the hearing shall be served personally on the subject of the petition and served personally or by certified or registered mail, return receipt requested, deliverable to the addressee only, on the subject's spouse, legal parents, adult children, and legal guardian, if one has been appointed. If the subject of the petition has no living spouse, legal parent and adult children, or if none can be found, notice of the hearing shall be served on at least one of the subject's closest adult relatives if any can be found. Notice of the hearing shall also be served on the public defender, attorney for the subject of the petition, or other court-appointed attorney as the case may be. If the subject of the petition is a minor, notice of the hearing shall also be served upon the person who has had the principal care and custody of the minor during the sixty days preceding the date of the petition if such person can be found within the State. If the subject of the petition has been charged with a crime and the petition is related to or results from a determination regarding the subject's fitness to proceed under chapter 704, notice of the hearing shall also be served on the victim of such crime, or if the victim is deceased, on at least one of the victim's closest adult relatives if any can be found. Notice shall also be given to such other persons as the court may designate."

SECTION 2. Section 334-60.5, Hawaii Revised Statutes, is amended by amending subsection (i) to read as follows:

"(i) If after hearing all relevant evidence, including the result of any diagnostic examination ordered by the court, the court finds that an individual is not a person requiring medical, psychiatric, or other rehabilitative treatment or supervision, the court shall order that the individual be discharged if the individual has been hospitalized prior to the hearing. If the court finds that the criteria for involuntary hospitalization under section 334-60.2(1) has been met beyond a reasonable doubt and that the criteria under sections 334-60.2(2) and 334-60.2(3) have been met by clear and convincing evidence, the court may issue an order to any police officer to deliver the subject to a facility that has agreed to admit the subject as an involuntary patient, or if the subject is already a patient in a psychiatric facility, authorize the facility to retain the patient for treatment for a period of ninety days unless sooner discharged. An order of commitment shall specify which of those persons served with notice pursuant to section 334-60.4, together with such other persons as the court may designate, shall be entitled to receive any subsequent notice of intent to discharge, transfer, or recommit. Persons served with notice, as designated in the order of commitment, shall include the victim of any crime with which the subject has been charged where the charge has resulted in a determination of lack of fitness to proceed under chapter 704, or, if the victim is deceased, at least one of the victim's closest adult relatives if any can be found."

SECTION 3. Section 704-406 is amended by amending subsections (2), (3), and (4) to read as follows:

"(2) When the court, on its own motion or upon the application of the director of health, the prosecuting attorney, or the defendant, determines, after a hearing if a hearing is requested, that the defendant has regained fitness to proceed, the penal proceeding shall be resumed. If, however, the court is of the view that so much time has elapsed since the commitment or conditional release of the defendant that it would be unjust to resume the proceeding, the court [may dismiss the charge and may order the defendant to be discharged or, subject to the law governing the involuntary hospitalization or conditional release of persons suffering from physical or mental disease, disorder, or defect,] will order the defendant to be committed to the custody of the director of health to be placed in an appropriate institution for detention, care and treatment if the defendant meets the criteria for involuntary hospitalization under chapter 334, part IV. If the defendant does not meet these criteria, the court may dismiss the charge and may order the defendant to be discharged.

(3) Within a reasonable time following any commitment under subsection (1), the director of health shall report to the court on whether the defendant presents a substantial likelihood of becoming fit to proceed in the future. The court, in addition, may appoint a panel of three qualified examiners in felony cases or one qualified examiner in nonfelony cases to make a report. If, following a report, the court determines that the defendant probably will remain unfit to proceed, the court [may dismiss the charge and release the defendant or] shall subject the defendant to involuntary civil commitment procedures[.] if the defendant meets the criteria for involuntary commitment under chapter 334, part IV. If the defendant does not meet those criteria, the court shall dismiss the charge and release the defendant.

(4) Within a reasonable time following any conditional release under subsection (1), the court shall appoint a panel of three qualified examiners in felony cases or one qualified examiner in nonfelony cases to report to the court on whether the defendant presents a substantial likelihood of becoming fit to proceed in the future. If, following the report, the court determines that the defendant probably will remain unfit to proceed, the court [may dismiss the charge and release the defendant or] shall subject the defendant to involuntary civil commitment procedures[.] if the defendant meets the criteria for involuntary commitment under chapter 334, part IV. If the defendant does not meet those criteria, the court shall dismiss the charge and release the defendant."

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________