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THE SENATE |
S.B. NO. |
2288 |
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THIRTY-THIRD LEGISLATURE, 2026 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING to mental illness.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that existing laws are woefully inadequate when it comes to addressing the unique challenges posed by severely mentally ill or substance addicted habitual misdemeanor and petty misdemeanor offenders.
The legislature further finds that under the United States Constitution, unless a person is proved to be imminently dangerous to self, others, or property, they have the right to refuse psychiatric care or substance abuse treatment. The constitutional calculus completely changes if a person's mental illness leads them to commit a crime. Mentally ill persons convicted of serious felonies but found to lack penal responsibility because they are incapable of understanding the wrongfulness or consequences of their acts, are routinely ordered to undergo compulsory psychiatric treatment instead of punishment. They are also frequently ordered to live in appropriate settings, such as a psychiatric facility, a group home, or permanent supportive housing. This is constitutionally permissible because their crimes provide sufficient proof of imminent dangerousness, and psychiatric care is performed under the least restrictive settings possible for that particular individual.
The legislature finds, however, that the State's laws fail to adequately address mentally ill habitual misdemeanor and petty misdemeanor offenders. One reason is that viewed in isolation, a single low-level crime is not "dangerous". For example, someone who steals a bag of potato chips from a convenience store can hardly be thought of as dangerous, but a habitual offender who commits hundreds or thousands of petty thefts clearly poses a danger to property, particularly if the person's self-control has been overborne by mental illness.
The legislature also finds that it is common for severely mentally ill habitual offenders to commit hundreds of offences in their lifetimes. The most common are petty theft, shoplifting, property damage, creating public disturbances, littering, illegal dumping, camping in prohibited areas, or violating park closure rules. Given there are literally thousands of severely mentally ill offenders, each committing hundreds of low-level offenses, the impact on the State's communities has been devastating. For example, in 2016, trash, vandalism, harassment, and more serious crimes committed by mentally ill residents of a homeless camp in Kakaako caused a thirty per cent drop in revenue for the Children's Discovery Center, which almost had to close. The legislature also finds that national data comports with local experience. In 2021, the Louis de la Parte Florida Mental Health Institute at the University of South Florida, reported that just ninety-seven individuals diagnosed with schizophrenia, most of whom were chronically homeless, accounted for two thousand two hundred jail bookings, twenty-seven thousand total days in jail, and thirteen thousand days in crisis units, hospitals and emergency rooms.
The legislature additionally finds that the vast majority of mentally ill persons who habitually commit low-level crimes, are doing so as the product of severe cognitive impairment, not free will. It is therefore just and proper for them to avoid penal responsibility. However, the current legal framework allows them to refuse treatment and other services, while simultaneously avoiding penal responsibility, an absurd contradiction that is not required by the United States Constitution.
The legislature believes there is a need to address the "unfit to proceed" paradox. This paradox occurs when a mentally ill person convicted of a crime can be compelled to undergo psychiatric care because the crime itself constitutes sufficient evidence of "imminent dangerousness". However, a person found "unfit to proceed" cannot be tried, and therefore cannot be convicted of a crime. The absurd result of this paradox is that mentally ill defendants who can understand the proceedings are tried and ordered to receive treatment instead of punishment, but defendants who are more severely mentally ill than those who are fit to proceed are released back to the streets without any treatment whatsoever. Invariably, they re-offend, are re‑arrested, are again found unfit to proceed, and are again released, whereupon the entire cycle repeats over again.
Accordingly, the purpose of this Act is to address the revolving "unfit to proceed paradox" of habitual mentally ill criminal offenders remaining untreated by:
(1) Clarifying the procedures for assisted community‑treatment, examination, and hospitalization for individuals who may be mentally ill or suffering from substance abuse who are imminently dangerous to self, others, or property;
(2) Amending the procedures for involuntary hospitalizations and assisted community treatment petitions; and
(3) Amending the Hawaii Penal Code to streamline the determination process for penal responsibility and fitness to proceed for individuals with mental illness.
PART
II
SECTION 2. Section 334-1, Hawaii Revised Statutes, is amended as follows:
1. By adding one new definition to be appropriately inserted and to read:
"Imminently dangerous to self, others, or property" means that, without intervention, the person will more likely than not cause harm to self, others, or property within the next forty‑five days."
2. By amending the definition of "dangerous to others" to read:
""Dangerous
to others" means likely to [do substantial physical or emotional injury
on another,] commit or attempt to
commit, or threaten to commit an assault upon others, creating a reasonable apprehension of harm by others, or committing a battery upon others, whether or not the battery results in a physical or emotional injury, or committing any other act that constitutes a crime against others as defined by state law, as evidenced by a recent act, attempt, or threat."
SECTION 3. Section 334-121, Hawaii Revised Statutes, is amended to read as follows:
"§334-121 Criteria for assisted community treatment. (a) An individual may be ordered to obtain assisted community treatment if the family court finds, based on the professional opinion of a qualified psychiatric examiner that:
(1) The individual is mentally ill or suffering from substance abuse;
(2) The individual is unlikely to live
safely in the community without available supervision, is now in need of
treatment in order to prevent a relapse or deterioration that would predictably
result in the individual becoming imminently dangerous to self [or],
others, or property, and the individual's
current mental status or the nature of the individual's disorder limits or
negates the individual's ability to make an informed decision to voluntarily
seek or comply with recommended treatment;
(3) The individual has a:
(A) Mental illness that has caused that individual to refuse needed and appropriate mental health services in the community; or
(B) History of lack of adherence to
treatment for mental illness or substance abuse that resulted in the individual
becoming dangerous to self [or], others, or property and
that now would predictably result in the individual becoming imminently
dangerous to self [or], others[;], or property; and
(4) Considering less intrusive alternatives, assisted community treatment is essential to prevent the danger posed by the individual, is medically appropriate, and is in the individual's medical interests.
(b) In determining whether an individual poses a danger to self, others, or property, the court shall consider clear and convincing evidence of the individual's history of repeatedly harming others, including but not limited to the individual's criminal record, and whether the individual suffers from a mental illness or defect making it difficult to comport their conduct to the requirements of law."
PART III
SECTION 4. Section 701-118, Hawaii Revised Statutes, is amended by adding eight new definitions to be appropriately inserted and to read as follows:
""Act
charged" means one or more criminal acts alleged to have been committed by
a defendant in a criminal proceeding.
"Criminal
act" means one or more acts constituting any criminal offense, whether or
not the defendant is found guilty of committing those acts or found to have
committed those acts and found not guilty by reason of severe cognitive
impairment.
"Harm"
means damage to self or the person or property of another, including physical
or emotional injury, whether minor or severe.
"Hospitalization"
means the admission of a person to a psychiatric or other medical facility. "Hospitalization" includes the
administration of all forms of appropriate psychiatric, psychological, or medical
treatment, including medication.
"Imminently
dangerous to self, others, or property" has the same meaning as defined in
section 334-1.
"Severe
cognitive impairment" means a mental disease, disorder, or other defect of
sufficient severity that the person lacks substantial capacity to either understand
the wrongfulness of the person's conduct or is unable to conform the person's
conduct to the requirements of law. "Severe
cognitive impairment" does not include an abnormality manifested only by
repeated criminal act.
"Involuntary
treatment" means all forms of psychiatric, mental health, drug addiction, or
medical treatment, including medication, administered on an involuntary basis,
whether as an outpatient in the community, or under custodial confinement as an
inpatient at any facility or hospital.
"Offense" means one or more acts in violation of any law, whether or not the defendant is found guilty of committing those acts, or found to have committed those acts, but adjudged not guilty by reason of severe cognitive impairment."
SECTION 5. Chapter 704, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§704- Order for treatment. (1) Notwithstanding any law to the
contrary, a defendant found not guilty by reason of severe cognitive impairment,
or otherwise entitled to avoid penal responsibility due to a mental disease,
disorder, or defect, shall be subject to an order for treatment. The order shall employ the least restrictive
means necessary to ensure the defendant will not pose an imminent danger to
self, others, or property, and promote their successful reentry into their
communities. The court shall have broad
discretion to customize the terms of the order to the defendant's
circumstances, based on any evidence the court deems relevant, including the
examination reports produced pursuant to 704-404. The court's order may include but not be limited
to:
(a) If the court determines the
defendant poses an imminent danger to self, others, or property, the court may:
(i) Commit the defendant to the director
of health, or another facility of the court's choosing for involuntary
treatment, including the involuntary administration of medication if medically
appropriate;
(ii) Order the defendant to undergo
treatment under less restrictive settings, including as an outpatient in the
community; provided that the defendant can be medically compliant and will not
pose an imminent danger to self, others, or property;
(iii) Order the defendant to
perform certain activities if appropriate, including but not limited to
attending addiction treatment programs, participating in individual or group
therapy sessions, and enrolling in job training programs;
(iv) Order the defendant to reside
in permanent supportive housing, a group home, kauhale projects, shelter, or
any other place the court deems prudent;
(v) Order the defendant to refrain from
spending time or residing in places the court deems inappropriate, or likely to
illicit aberrant behavior;
(vi) Include any other terms and conditions in the order for treatment the
court deems appropriate; and
(vii) Modify the order for treatment at any time for good cause shown.
(b) If at any time, the court determines
the defendant does not pose an imminent danger but is nonetheless struggling
with a condition that could reasonably cause the defendant to become imminently
dangerous to self, others, or property, the court can order that the defendant
be subject to a non-compulsory assisted community treatment order, as provided
under part VIII of chapter 334.
(2) An order for treatment issued under
this section may be issued as part of the defendant's conditional release or
probation.
(3) The court may appoint a
guardian ad litem and attorney for the defendant.
(4) The court shall schedule
hearings every one hundred twenty days, or as soon as practicable, to determine
if the conditions for the order for treatment persists and if the order for
treatment should be modified or terminated. For the purposes of hearings, the court may order
new examinations under section 704-404.
(5) At any time, a defendant
subject to an order for treatment under this section, or a
medical professional, social worker, caregiver, guardian, family member,
defense attorney, prosecutor, or any other interested party acting on the defendant's
behalf, may petition the court for modification or termination of the order
for treatment for good cause shown. The
burden of proof shall be on the petitioner to prove, based on a preponderance
of evidence, that the order for treatment should be modified or terminated. For the purposes of hearings on petitions, the
court may order new examinations under section 704-404. The court may grant the petition, in whole or
in part, or deny the petition. Subsequent
petitions may be filed for good cause shown, including new evidence for the
court to consider.
(6) A defendant who remains arrest-free
for at least five years after the order for treatment under this section
becomes effective may petition the court to expunge any prior petty misdemeanor
or misdemeanor convictions. The burden
of proof shall be on the petitioner, under the preponderance of evidence
standard, to prove the defendant is likely to continue acting within the requirements
of law, and not become an imminent danger to self, others, or property. If the petition to expunge is denied in whole or
in part, the defendant may file subsequent petitions if there is new evidence
for the court to consider. A medical
professional, social worker, caregiver, guardian, family member, defense
attorney, prosecutor, or any other interested party acting on the defendant's
behalf may file the petition for expungement on the defendant's behalf."
SECTION 6. Section 704-402, Hawaii Revised Statutes, is amended to read as follows:
"§704-402 Physical or mental disease, disorder, or defect excluding responsibility is an affirmative defense; form of verdict and judgment when finding of irresponsibility is made. (1) Physical or mental disease, disorder, or defect, which may be collectively referred to as severe cognitive impairment, excluding penal responsibility, is an affirmative defense. If there is probable cause for the court to suspect the defendant has a severe cognitive impairment, the court may raise the issue on its own motion, or the issue may be raised by the defendant, the defendant's counsel, or the prosecutor. When the issue of severe cognitive impairment is raised, the court shall order an examination of the defendant under section 704-404.
(2)
The court shall determine whether the
defendant, due to a severe cognitive impairment, did not have the required
state of mind under section 701-114(1)(b) to be found guilty of a crime for the
offense charged, and thereby entitled to avoid penal responsibility, and
whether the defendant is unfit to proceed. The court's determination may be based on the
following criteria, in addition to any other criteria the court deems relevant:
(a) All relevant and material
information in the examiner's report, submitted according to section 704‑404,
including but not limited to the defendant's diagnosis and prognosis;
(b) Whether the defendant suffers from
delusions and is incapable of correctly perceiving reality;
(c) The defendant's prior arrest and
conviction record for non-violent misdemeanors, petty misdemeanors, violent
crimes, and felonies;
(d) The defendant's history of being
found unfit to proceed;
(e) Whether the severity of the defendant's
mental impairments makes it difficult or impossible to control the defendant's
conduct; and
(f) The court's observations of the defendant's
conduct during the proceedings, including a defendant's demonstrated inability
to understand or participate in the proceedings.
[(2)]
(3) When the defense provided for
by subsection (1) is submitted to a jury, the court shall[, if requested by
the defendant,] instruct the jury as to the consequences to the defendant
of an acquittal on the ground of [physical or mental
disease, disorder, or defect] severe cognitive impairment excluding
penal responsibility.
[(3)]
(4) When the defendant is
acquitted on the ground of [physical or mental disease, disorder, or defect]
severe cognitive impairment excluding penal responsibility, the
verdict and the judgment shall [so] state[.] the reasons.
(5) If the defendant's severe cognitive
impairment persists, the court shall issue an order for treatment pursuant to section
§704- , which shall also be included in the verdict.
(6) If the defendant's severe cognitive impairment
was temporary or no longer exists because of successful treatments or other
means, and the court determines the defendant no longer poses an imminent
danger to self, others, or property, the court may release the defendant."
SECTION 7. Section 704-404, Hawaii Revised Statutes, is amended to read as follows:
"§704-404 Examination of defendant with respect to
physical or mental disease, disorder, or defect [excluding] to assess
penal responsibility and fitness to proceed. (1) Whenever there is reason to doubt the
defendant's mental condition and whether the defendant had the required
state of mind under section 701-114(1)(b) to be convicted or found guilty of a
crime for the act charged, or a reason to question defendant's mental condition,
cognitive capacity, or physical disease or defect affecting the defendant's
fitness to proceed, the court may immediately suspend all further proceedings
in the prosecution[;] or sentencing; provided that for any
defendant not subject to an order of commitment to the director of health or
other facility or professional for the purpose of the examination, neither
the right to bail nor proceedings pursuant to chapter 804 shall be
suspended. If a trial jury has been
empaneled, it shall be discharged or retained at the discretion of the
court. The discharge of the trial jury
shall not be a bar to further prosecution.
(a) A description of the nature of the examination;
(b) A
determination of whether the defendant is afflicted with a mental
disease, physical defect, or addiction, including diagnosis and a description
of the impairments caused by the defendant's condition;
(c) A
determination of whether the defendant is self-aware of the defendant's
impairments;
(d) A
determination of whether the defendant's diagnosis, addiction, undiagnosed
impairment, or diminished cognitive ability:
(i) Interferes
with the defendant's ability to organize thoughts or think rationally or understanding
of the wrongfulness or consequences of the crimes defendant is charged with, and to
what degree;
(ii) Renders
the defendant incapable of understanding the charges in legal proceedings or
participating in the defendant's own defense;
(iii) Interferes
with the defendant's ability to control the defendant's own conduct;
(iv) Poses
a risk of the defendant causing harm to self, others, or property, and whether the
defendant has a propensity for violence; or
(v) Causes
delusions of such severity that they impair the defendant's ability to
correctly perceive reality;
(e) The
examiner's determination for:
(i) Protocols
to treat defendant's diagnosed or undiagnosed mental illness or addiction, and
the prognosis if treated with respect to each of the assessments in paragraphs
(a) through (d);
(ii) The
least restrictive setting necessary for effective treatment adherence;
(iii) Whether
the criminal acts described in the defendant's criminal record are caused by
the defendant's mental impairments;
(iv) Whether
the amount of criminal offenses provides insight into the severity of
defendant's impairments;
(v) The
likelihood that the defendant would commit an offense against others or
property within forty‑five days if the defendant is not treated or
confined in a psychiatric facility;
(vi) The
likelihood that the defendant would commit an offense against others or
property within forty‑five days if the defendant is treated but not
confined in a psychiatric facility; and
(vii) The
prognosis if defendant is treated and confined;
(f) Any
other information or observations the examiner deems relevant; and
(g) Where
more than one examiner is appointed, a statement that the opinion rendered was arrived
at independently of any other examiner, unless there is a showing to the court
of a clear need for communication between or among the examiners for
clarification. A description of the
communication shall be included in the report. After all reports are submitted
to the court, examiners may confer without restriction.
[(a)] (3) In cases where the defendant is
charged with a petty misdemeanor not involving violence or attempted violence, [if
a court-based certified examiner is available,] the court shall have
discretion to appoint the court-based certified examiner, if one is
available, to examine [and provide an expedited report solely upon the
issue of the defendant's capacity to understand the proceedings against the
defendant and defendant's ability to assist in the defendant's own
defense. The court-based certified
examiner shall file the examiner's report with the court within two days of the
appointment of the examiner, or as soon thereafter is practicable. A hearing shall be held to determine if the
defendant is fit to proceed within two days of the filing of the report, or as
soon thereafter as is practicable;] the defendant pursuant to subsection
(2);
[(b)] (4) In all other nonfelony cases, and
where a court‑based certified examiner is not available [in cases
under paragraph (a)], the court shall appoint one, or more at the court's
discretion, qualified examiner to examine [and report upon the defendant's
fitness to proceed.] the defendant to produce the examination under subsection
(2). The court may appoint as
the examiner either a psychiatrist or a licensed psychologist designated by the
director of health from within the department of health[; and] or any
other qualified professionals at the discretion of the court;
[(c)]
(5) In felony cases, the
court shall appoint three, or more at the court's discretion, qualified licensed
psychiatrists, psychologists, or physicians as examiners to [examine and
report upon the defendant's fitness to proceed.
The court shall appoint as examiners psychiatrists, licensed
psychologists, or qualified physicians; provided that one of the three
examiners shall be a psychiatrist or licensed psychologist designated by the
director of health from within the department of health.] independently
conduct separate examinations, and produce separate examinations reports, each
containing the information required by subsection (2).
[All
examiners 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.] The examination may be conducted while the
defendant is in custody or on release or, in the court's discretion, when
necessary, the court may order the defendant to be committed to a
hospital or other suitable facility for the purpose of the examination for [a
period not exceeding thirty days, or a longer period as] the least
amount of time the court determines to be necessary for the purpose[.],
not to exceed three months. The
court may direct that one or more qualified physicians or psychologists
retained by the defendant be permitted to witness the examination. As used in this section, the term "licensed
psychologist" includes psychologists exempted from licensure by section
465-3(a)(3) and "qualified physician" means a physician qualified by
the court for the specific evaluation ordered.
[(3)]
(6) An examination performed
under this section may employ any method that is accepted by the professions of
medicine or psychology for the examination of those alleged to be affected by a
physical or mental disease, disorder, or defect; provided that each examiner
shall [form and render an opinion upon the defendant's fitness to proceed]
conduct their examinations independently and write their reports
independently from the other examiners[, and the examiners, upon approval of
the court,]. The examiners
may secure the services of clinical psychologists and other medical or
paramedical specialists to assist in the examination. The court may order the examiners' reports
to be submitted as separate reports or as a combined report, where in the
absence of a specific court order, the examiners shall have discretion to
submit a combined report or separate reports.
[(4) For defendants charged with felonies, the
examinations for fitness to proceed under this section and penal responsibility
under section 704-407.5 shall be conducted separately unless a combined
examination has been ordered by the court upon a request by the defendant or
upon a showing of good cause to combine the examinations. The report of the examination for fitness to
proceed shall be separate from the report of the examination for penal
responsibility unless a combined examination has been ordered. For defendants charged with offenses other
than felonies, a combined examination is permissible when ordered by the court.
(5) Except in the case of an examination pursuant
to subsection (2)(a), the report of the examination for fitness to proceed
shall include the following:
(a) A description of the nature of the
examination;
(b) A diagnosis of the physical or
mental condition of the defendant;
(c) An opinion as to the defendant's
capacity to understand the proceedings against the defendant and to assist in
the defendant's own defense;
(d) An assessment of the risk of danger
to the defendant or to the person or property of others for consideration and
determination of the defendant's release on conditions; and
(e) Where more than one examiner is
appointed, a statement that the opinion rendered was arrived at independently
of any other examiner, unless there is a showing to the court of a clear need
for communication between or among the examiners for clarification. A description of the communication shall be
included in the report. After all
reports are submitted to the court, examiners may confer without restriction.]
[(6)]
(7) If the examination cannot be
conducted by reason of the unwillingness of the defendant to participate in the
examination, the report shall so state and shall include, if possible, an
opinion as to whether the unwillingness of the defendant was the result of
physical or mental disease, disorder, or defect.
[(7)]
(8) A copy of the report of the
examination, including any supporting documents, shall be filed with the clerk
of the court.
[(8)]
(9) Any examiner shall be
permitted to make a separate explanation reasonably serving to clarify the
examiner's opinion.
[(9)]
(10) [The] Within a
reasonable amount of time before the examiners' reports are due, the court
shall obtain all existing relevant medical, mental health, social, police, and
juvenile records, including those expunged, and other pertinent records in the
custody of public agencies, notwithstanding any other statute, and make the
records available for inspection by the examiners in hard copy or digital
format. The court may order that the
records so obtained be made available to the prosecuting attorney and counsel
for the defendant in either format, subject to conditions the court determines
appropriate; provided that juvenile records shall not be made available unless
constitutionally required. No further
disclosure of records shall be made except as permitted by law. If, pursuant to this section, the court
orders the defendant committed to a hospital or other suitable facility under
the control of the director of health, then 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 no contest, a finding of guilt,
acquittal, acquittal pursuant to section 704-400, or by the entry of plea of
guilty or no contest made pursuant to chapter 853; provided that the disclosure
to the director of health and the defendant does not frustrate a legitimate
function of the county police departments, with the exception of 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. The
county police departments shall segregate or sanitize from the police reports
information that would result in the likely or actual identification of
individuals who furnished information in connection with its investigation, or
who were of investigatory interest. No
further disclosure of records shall be made except as provided by law.
[(10)]
(11) All public agencies in
possession of relevant medical, mental health, social, police, and juvenile
records, and any other pertinent records of a defendant ordered to be examined
under this chapter, shall provide those records to the court, notwithstanding
any other state statute.
[(11)]
(12) The compensation of persons
making or assisting in the examination, other than those retained by a
nonindigent defendant, who are not undertaking the examination upon designation
by the director of health as part of their normal duties as employees of the
State or a county, shall be paid by the judiciary in the amount of $2,000,
which amount includes compensation for the examination, the drafting of the
report, and any consultation, preparation, testimony, and attendance in court."
SECTION 8. Section 704-406, Hawaii Revised Statutes, is amended to read as follows:
"§704-406 Effect of finding of unfitness to proceed and
regained fitness to proceed. [(1) If the court determines that the defendant
lacks fitness to proceed, the proceeding against the defendant shall be
suspended, except as provided in sections 704-407 and 704-421, and the court
shall commit the defendant to the custody of the director of health to be
placed in an appropriate institution for detention, assessment, care, and
treatment; provided that:
(a) When the defendant is charged with a
petty misdemeanor not involving violence or attempted violence, the defendant
shall be diverted from the criminal justice system pursuant to section 704-421;
and
(b) When the defendant is charged with a
misdemeanor not involving violence or attempted violence, the commitment shall
be limited to no longer than one hundred twenty days from the date the court
determines the defendant lacks fitness to proceed.
If the
court is satisfied that the defendant may be released on conditions without
danger to the defendant or to another or risk of substantial danger to property
of others, the court shall order the defendant's release, which shall continue
at the discretion of the court, on conditions the court determines necessary;
provided that the release on conditions of a defendant charged with a
misdemeanor not involving violence or attempted violence shall continue for no
longer than one hundred twenty days.]
(1)
For defendants charged with petty misdemeanors and misdemeanors, once
the court finds the defendant is unfit to proceed pursuant to sections 704-402,
704-403, and 704-405, the court shall determine whether or not there is a reasonable
chance the defendant will become fit to proceed within four months. In making the determination, the court may
rely upon the examiners' reports submitted pursuant to section 704-404, and any
other relevant evidence.
(a) If the court determines that there
is not a reasonable chance the defendant will become fit to proceed within four
months, the court shall dismiss the case and issue an ex parte order pursuant
to section and 334-59(a)(2).
(b) If the court determines there's a
reasonable chance the defendant will become fit to proceed in four months or
less, the court shall suspend the proceedings until the defendant becomes fit. If the defendant does not become fit within
the required time, the court shall dismiss the case and issue an ex parte order
per section 334-59(a)(2).
(2) A copy of all reports filed pursuant to
section 704‑404 shall be attached to the order of commitment or order of
release on conditions that is provided to the
department of health[.] or other facilities or care personnel
as appropriate. When the defendant
is committed to the custody of the director of health, or other facility or
care personnel as appropriate, for detention, assessment, care, and
treatment, the county police departments shall provide to the director of
health, or other facilities or care personnel as appropriate, 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; provided that the disclosure to the director of health, or
other facilities or care personnel as appropriate, and the defendant does
not frustrate a legitimate function of the county police departments; provided
further 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 likely
or actual identification of individuals who furnished information in connection
with the investigation or who were of investigatory interest. No further disclosure of records shall be
made except as provided by law.
[(2)]
(3) When the defendant is
released on conditions after a finding of unfitness to proceed, the department
of health, or other facilities or care personnel as appropriate, shall
establish and monitor a fitness restoration [program] protocol
consistent with conditions set by the court order of release, and shall inform
the prosecuting attorney of the county that charged the defendant of the
program and report the defendant's compliance therewith.
(4)
For a defendant charged with a
misdemeanor involving violence or attempted violence, a felony, except murder
in the first or second degree, or attempted murder in the first or second
degree, or a class A felony, when the court on its own motion, or upon the
application of the director of health, the prosecuting attorney, or the
defendant, or an examiner's report, has reason to believe the defendant
regained fitness to proceed, then the court may order the prosecution of
defendant to resume. If the defendant is
not found fit to proceed within four months, the court shall initiate
proceedings under the applicable provisions of chapter 334, as applicable.
[(3)]
(5) When the court, on its own
motion or upon the application of the director of health, the prosecuting
attorney, or the defendant, or an examiner's report, has reason to
believe that the defendant has regained fitness to proceed, for a defendant
charged with the offense of murder in the first or second degree, attempted
murder in the first or second degree, or a class A felony, the court shall
appoint three qualified examiners and may appoint in all other cases one
qualified examiner, to examine and report upon the physical and mental
condition of the defendant. In cases in
which the defendant has been charged with murder in the first or second degree,
attempted murder in the first or second degree, or a class A felony, the court
shall appoint as examiners at least one psychiatrist and at least one licensed
psychologist. The third examiner may be
a psychiatrist, licensed psychologist, or qualified physician. One of the three examiners shall be a
psychiatrist or licensed psychologist designated by the director of health from
within the department of health. In all
other cases, the one qualified examiner shall be a psychiatrist or licensed
psychologist designated by the director of health from within the department of
health. The court, in appropriate
circumstances, may appoint an additional examiner or examiners. All examiners shall be appointed from a list
of certified examiners as determined by the department of health. After a hearing, if a hearing is requested,
if the court determines that the defendant has regained fitness to proceed, the
penal proceeding shall be resumed [and the defendant shall no longer be
committed to the custody of the director of health]. In cases where a defendant is charged with
the offense of murder in the first or second degree, attempted murder in the
first or second degree, or a class A felony, upon the request of the
prosecuting attorney or the defendant, or upon the court's own motion, and
in consideration of information provided by the defendant's psychiatric
examiners or clinical team, the court may order that the defendant remain
in the custody of the director of health, for good cause shown, subject to bail
or until a judgment on the verdict or a finding of guilt after a plea of guilty
or nolo contendere. Thereafter, the
court may consider a request from the director of health to rescind its order
maintaining the defendant in the director's custody, for good cause shown. As used in this section, the term "qualified
physician" means a physician qualified by the court for the specific
evaluation ordered. If, however, the
court is of the view that so much time has elapsed since the commitment or
release on conditions of the defendant that it would be unjust to resume the
proceeding, the court may dismiss the charge and:
(a) Order the defendant to be discharged;
(b) Subject to section 334-60.2 regarding involuntary hospitalization criteria, 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; or
(c) Subject to section 334-121 regarding assisted community treatment criteria, order the defendant to be released on conditions the court determines necessary.
[(4)]
(6) An examination for regained
fitness to proceed performed under this section may employ any method that is
accepted by the professions of medicine or psychology for the examination of
those alleged to be affected by a physical or mental disease, disorder, or
defect, and shall include a review of records where the defendant, while under
the custody of the director of health, was placed; provided that each examiner
shall form and render an opinion on the defendant's regained fitness to proceed
independently from the other examiners and the examiners[, upon approval of
the court,] may secure the services of clinical psychologists and other
medical or paramedical specialists to assist in the examination.
[(5)]
(7) The report of the examination
for regained fitness to proceed shall include the following:
(a) A description of the nature of the examination;
(b) An opinion as to the defendant's capacity to understand the proceedings against the defendant and to assist in the defendant's own defense; and
(c) Where more than one examiner is appointed, a statement that the opinion rendered was arrived at independently of any other examiner, unless there is a showing to the court of a clear need for communication between or among the examiners for clarification. A description of the communication shall be included in the report. After all reports are submitted to the court, examiners may confer without restriction.
[(6)]
(8) [All] At the
discretion of the court, any of the other procedures as set out in section
704-404[(6) through (11)] shall be followed for the completion of the
report of the examination for regained fitness to proceed performed under this
section.
[(7) If a defendant committed to the custody of
the director of health for a limited period pursuant to subsection (1) is not
found fit to proceed prior to the expiration of the commitment, the charge for
which the defendant was committed for a limited period shall be dismissed. Upon dismissal of the charge, the defendant
shall be released from custody unless the defendant is subject to prosecution
for other charges or subject to section 334-60.2 regarding involuntary
hospitalization criteria, in which case the court shall order the defendant's
commitment to the custody of the director of health to be placed in an
appropriate institution for detention, care, and treatment. Within a reasonable time following any other
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 the report, the court
determines that the defendant probably will remain unfit to proceed, the court
may dismiss the charge and:
(a) Release the defendant; or
(b) Subject to section 334-60.2
regarding involuntary hospitalization criteria, 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.
(8) If a defendant released on conditions for a
limited period pursuant to subsection (1) is not found fit to proceed prior to
the expiration of the release on conditions order, the charge for which the
defendant was released on conditions for a limited period shall be
dismissed. Upon dismissal of the charge,
the defendant shall be discharged from the release on conditions unless the
defendant is subject to prosecution for other charges or subject to section
334-60.2 regarding involuntary hospitalization criteria, in which case the
court shall order the defendant's commitment to the custody of the director of
health to be placed in an appropriate institution for detention, care, and
treatment. Within a reasonable time
following any other release on conditions 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:
(a) Release the defendant; or
(b) Subject to section 334-60.2
regarding involuntary hospitalization criteria, 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.]"
PART IV
SECTION 9. Section 704-407, Hawaii Revised Statutes, is repealed.
["§704-407
Special hearing following commitment or release on conditions. (1) At
any time after commitment as provided in section 704‑406, the defendant
or the defendant's counsel or the director of health may apply for a special
post-commitment or post-release hearing.
If the application is made by or on behalf of a defendant not
represented by counsel, the defendant shall be afforded a reasonable
opportunity to obtain counsel, and if the defendant lacks funds to do so,
counsel shall be assigned by the court.
The application shall be granted only if the counsel for the defendant
satisfies the court by affidavit or otherwise that, as an attorney, the counsel
has reasonable grounds for a good faith belief that the counsel's client has an
objection based upon legal grounds to the charge.
(2) If the motion for a special post-commitment
or post‑release hearing is granted, the hearing shall be by the court
without a jury. No evidence shall be
offered at the hearing by either party on the issue of physical or mental
disease, disorder, or defect as a defense to, or in mitigation of, the offense
charged.
(3) After the hearing, the court shall rule on
any legal objection raised by the application and, in an appropriate case, may
quash the indictment or other charge, find it to be defective or insufficient,
or otherwise terminate the proceedings on the law. Unless all defects in the proceedings are
promptly cured, the court shall terminate the commitment or release ordered
under section 704-406 and:
(a) Order the defendant to be
discharged;
(b) Subject to section 334-60.2
regarding involuntary hospitalization criteria, 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; or
(c) Subject to section 334-121 regarding
assisted community treatment criteria, order the defendant to be released on
conditions as the court deems necessary. "]
SECTION 10. Section 704-407.5, Hawaii Revised Statutes, is repealed.
["§704-407.5 Examination of defendant with respect to
physical or mental disease, disorder, or defect excluding penal responsibility. (1)
Whenever the defendant has filed a notice of intention to rely on the
defense of physical or mental disease, disorder, or defect excluding penal
responsibility, or there is reason to believe that the physical or mental
disease, disorder, or defect of the defendant will or has become an issue in
the case, the court may order an examination as to the defendant's physical or
mental disease, disorder, or defect at the time of the conduct alleged.
Whenever there
is reason to believe that the physical or mental disease, disorder, or defect
of the defendant will or has become an issue in the case, the court may enter
into an agreement with the parties at any stage of the proceeding to divert the
case into an evaluation of the defendant, treatment of the defendant, including
residential or rehabilitation treatment; or any other course or procedure,
including diversion into specialized courts.
Such agreements may include in-court clinical evaluations.
(2) For those cases not diverted by an agreement
pursuant to subsection (1), the court shall appoint three qualified examiners
for class A and class B felonies, as well as for class C felonies involving
violence or attempted violence, and one qualified examiner in nonfelony cases
to examine and report upon the physical or mental disease, disorder, or defect
of the defendant at the time of the conduct.
For class C felonies not involving violence or attempted violence, the
court may appoint one or three qualified examiners to examine and report upon
the physical or mental disease, disorder, or defect of the defendant at the
time of the conduct. In cases where the
court appoints three examiners, the court shall appoint as examiners
psychiatrists, licensed psychologists, or qualified physicians; provided that
one of the three examiners shall be a psychiatrist or licensed psychologist
designated by the director of health from within the department of health. In nonfelony cases and class C felonies not
involving violence or attempted violence where one examiner is appointed, the
court may appoint as examiners either a psychiatrist or a licensed
psychologist. The examiner may be
designated by the director of health from within the department of health. All examiners 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.
The court may direct that one or more qualified physicians or
psychologists retained by the defendant be permitted to witness the
examination. As used in this section,
the term "licensed psychologist" includes psychologists exempted from
licensure by section 465-3(a)(3) and "qualified physician" means a
physician qualified by the court for the specific evaluation ordered.
(3) An examination performed under this section
may employ any method that is accepted by the professions of medicine or
psychology for the examination of those alleged to be affected by a physical or
mental disease, disorder, or defect; provided that each examiner shall form and
render diagnoses and opinions upon the physical and mental condition of the
defendant independently from the other examiners, and the examiners, upon
approval of the court, may secure the services of clinical psychologists and
other medical or paramedical specialists to assist in the examination and
diagnosis.
(4) For defendants charged with felonies, the
examinations for fitness to proceed under section 704-404 and penal
responsibility under this section shall be conducted separately unless a
combined examination has been ordered by the court upon a request by the
defendant or upon a showing of good cause to combine the examinations. The report of the examination for fitness to
proceed shall be separate from the report of the examination for penal
responsibility unless a combined examination has been ordered. For defendants charged with offenses other
than felonies, a combined examination is permissible when ordered by the court.
(5) The court may order the examination to occur
no sooner than one hundred twenty days of a finding of unfit to proceed under
section 704-404 upon a showing of good cause.
(6) The report of the examination for penal
responsibility shall include the following:
(a) A description of the nature of the
examination;
(b) A diagnosis of the physical or
mental condition of the defendant;
(c) An opinion as to the extent, if any,
to which the capacity of the defendant to appreciate the wrongfulness of the
defendant's conduct or to conform the defendant's conduct to the requirements
of law was impaired at the time of the conduct alleged;
(d) When directed by the court, an
opinion as to the capacity of the defendant to have a particular state of mind
that is required to establish an element of the offense charged; and
(e) Where more than one examiner is
appointed, a statement that the diagnosis and opinion rendered were arrived at
independently of any other examiner, unless there is a showing to the court of
a clear need for communication between or among the examiners for
clarification. A description of the
communication shall be included in the report.
After all reports are submitted to the court, examiners may confer
without restriction.
(7) If the examination cannot be conducted by
reason of the unwillingness of the defendant to participate in the examination,
the report shall so state and shall include, if possible, an opinion as to
whether the unwillingness of the defendant was the result of physical or mental
disease, disorder, or defect.
(8) Three copies of the report of the
examination, including any supporting documents, shall be filed with the clerk
of the court, who shall cause copies to be delivered to the prosecuting
attorney and to counsel for the defendant.
(9) Any examiner shall be permitted to make a
separate explanation reasonably serving to clarify the examiner's diagnosis or
opinion.
(10) The court shall obtain all existing relevant
medical, mental health, social, police, and juvenile records, including those
expunged, and other pertinent records in the custody of public agencies,
notwithstanding any other statute, and make the records available for
inspection by the examiners in hard copy or digital format. The court may order that the records so
obtained be made available to the prosecuting attorney and counsel for the
defendant in either format, subject to conditions the court determines
appropriate; provided that juvenile records shall not be made available unless
constitutionally required. No further
disclosure of records shall be made except as permitted by law.
(11) All public agencies in possession of relevant
medical, mental health, social, police, and juvenile records, and any other
pertinent records of a defendant ordered to be examined under this chapter,
shall provide those records to the court, notwithstanding any other state
statute.
(12) The compensation of persons making or
assisting in the examination, other than those retained by a nonindigent
defendant, who are not undertaking the examination upon designation by the
director of health as part of their normal duties as employees of the State or
a county, shall be paid by the judiciary in the amount of $2,000, which amount
includes compensation for the examination, the drafting of the report, and any
consultation, preparation, testimony, and attendance in court.
(13) The time during which completion of an
examination pursuant to this section is pending shall be excluded in computing
the time for trial commencement."]
SECTION 11. Section 704-411, Hawaii Revised Statutes, is repealed.
["§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 704404, 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) Presents a risk of danger to self or
others; and
(iii) 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 704400, or by the entry of a plea of guilty or
nolo contendere made pursuant to chapter 853; provided that the disclosure to
the director of health and the defendant does not frustrate a legitimate
function of the county police departments; provided further 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 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; or
(c) 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) 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) When ordering a hearing pursuant to
subsection (2):
(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, 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 as examiners psychiatrists, licensed
psychologists, or qualified physicians; provided that 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 for the purpose of examination for a period not exceeding
thirty days or a 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 accordance with section 704-404(3), (5)(a), (b), (d), and (e), (7),
(8), (9), (10), and (11). As used in
this section, the term "licensed psychologist" includes psychologists
exempted from licensure by section 4653(a)(3) and "qualified
physician" means a physician qualified by the court for the specific
evaluation ordered.
(4) 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) In any proceeding governed by this
section, the defendant's fitness shall not be an issue."]
SECTION 12. Section 704-412, Hawaii Revised Statutes, is repealed.
["§704-412
Committed person; application for conditional release or discharge; by
the director of health; by the person. (1)
After the expiration of at least ninety days following an original order
of commitment pursuant to section 704-411(1)(a), or after the expiration of at
least sixty days following the revocation of conditional release pursuant to
section 704-413, if the director of health is of the opinion that the person
committed is still affected by a physical or mental disease, disorder, or defect
and may be granted conditional release or discharged without danger to self or
to the person or property of others or that the person is no longer affected by
a physical or mental disease, disorder, or defect, the director shall make an
application for either the conditional release or discharge of the person, as
appropriate. In such a case, the
director shall submit a report to the court by which the person was ordered
committed and shall transmit copies of the application and report to the
prosecuting attorney of the county from which the person was committed and to
the person committed.
(2) After the expiration of ninety days from the
date of the order of commitment pursuant to section 704-411, or after the
expiration of sixty days following the revocation of conditional release
pursuant to section 704-413, the person committed may apply to the court from
which the person was committed for an order of discharge upon the ground that
the person is no longer affected by a physical or mental disease, disorder, or
defect. The person committed may apply
for conditional release or discharge upon the ground that, though still
affected by a physical or mental disease, disorder, or defect, the person may
be released without danger to self or to the person or property of others. A copy of the application shall be
transmitted to the prosecuting attorney of the county from which the person was
committed. If the court denies the
application, the person shall not be permitted to file another application for
either conditional release or discharge until one year after the date of the
hearing held on the immediate prior application.
(3)
Upon application to the court by either the director of health or the
person committed, the court shall complete the hearing process and render a
decision within sixty days of the application; provided that for good cause the
court may extend the sixty-day time frame upon the request of the director of
health or the person committed."]
SECTION 13. Section 704-413, Hawaii Revised Statutes, is repealed.
["§704-413
Conditional release; application for modification or discharge;
termination of conditional release and commitment. (1)
Any person granted conditional release pursuant to this chapter shall
continue to receive mental health or other treatment and care deemed
appropriate by the director of health until discharged from conditional
release. The person shall follow all
prescribed treatments and take all prescribed medications according to the
instructions of the person's treating mental health professional. If a mental health professional who is
treating a person granted conditional release believes that either the person
is not complying with the requirements of this section or there is other
evidence that hospitalization is appropriate, the mental health professional
shall report the matter to the probation officer of the person granted
conditional release. The probation
officer may order the person granted conditional release to be hospitalized for
a period not to exceed seventy-two hours if the probation officer has probable
cause to believe the person has violated the requirements of this
subsection. No person shall be
hospitalized beyond the seventy-two-hour period, as computed pursuant to
section 1-29, unless a hearing has been held pursuant to subsection (4);
provided that on or before the expiration of the seventy-two-hour period, a
court may conduct a hearing to determine whether the person would benefit from
further hospitalization, which may render a revocation of conditional release
unnecessary. If satisfied, the court may
order further temporary hospitalization for a period not to exceed ninety days,
subject to extension as appropriate, but in no event for a period longer than
one year. At any time within that
period, the court may determine that a hearing pursuant to subsection (4)
should be conducted.
(2) The director of health may apply to
the court ordering any person released pursuant to this chapter, for the
person's discharge from, or modification of, the order granting conditional
release; provided that the person receives community-based mental health
services from or contracted by the department of health, and the director is of
the opinion that the person on conditional release is no longer affected by a
physical or mental disease, disorder, or defect and may be discharged, or the
order may be modified, without danger to the person or to others. The director shall make an application for
the discharge from, or modification of, the order of conditional release in a
report to the circuit from which the order was issued. The director shall transmit a copy of the
application and report to the prosecuting attorney of the county from which the
conditional release order was issued, to the person's treating mental health
professionals, and to the probation officer supervising the conditional
release. The person on conditional
release shall be given notice of the application.
(3) Any person granted conditional release
pursuant to this chapter may apply to the court ordering the conditional
release for discharge from, or modification of, the order granting conditional
release on the ground that the person is no longer affected by a physical or
mental disease, disorder, or defect and may be discharged, or the order may be
modified, without danger to the person or to others. The application shall be accompanied by a
letter from or supporting affidavit of a qualified physician or licensed
psychologist. A copy of the application
and letter or affidavit shall be transmitted to the prosecuting attorney of the
circuit from which the order issued and to any persons supervising the release,
and the hearing on the application shall be held following notice to such
persons. If the court denies the
application, the person shall not be permitted to file another application for
either discharge or modification of conditional release until one year after
the date of the denial.
(4) If, at any time after the order pursuant to
this chapter granting conditional release, the court determines, after hearing
evidence, that:
(a) The person is still affected by a
physical or mental disease, disorder, or defect, and the conditions of release
have not been fulfilled; or
(b) For the safety of the person or others, the
person's conditional release should be revoked,
the
court may forthwith modify the conditions of release or order the person to be
committed to the custody of the director of health, subject to discharge or
release in accordance with the procedure prescribed in section 704-412;
provided that, if satisfied that the person would benefit from temporary
hospitalization that may render a revocation of conditional release
unnecessary, the court, in lieu of revocation, may order hospitalization for a
period not to exceed ninety days, subject to extension as appropriate, but in
no event for a period exceeding a total of one year, and may reinstate or
revoke conditional release at any time during the temporary hospitalization.
(5) Upon application for
discharge from, or modification of, the order of conditional release by either
the director of health or the person, the court shall complete the hearing
process and render a decision within sixty days of the application, provided that
for good cause the court may extend the sixty day time frame upon the request
of the director of health or the person."]
SECTION 14. Section 704-414, Hawaii Revised Statutes, is repealed.
["§704-414
Procedure upon application for discharge, conditional release, or
modification of conditions of release. (1) Upon filing of an application pursuant to
section 704-412 for discharge or conditional release, or upon the filing of an
application pursuant to section 704-413 for discharge, the court shall appoint
three qualified examiners in felony cases, and one qualified examiner in
nonfelony cases, to examine and report upon the physical and mental condition
of the defendant. In felony cases, the
court shall appoint as examiners psychiatrists, licensed psychologists, or
qualified physicians; provided that one of the three shall be a psychiatrist or
licensed psychologist designated by the director of health from within the
department of health. The 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 for
the purpose of the examination and 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
accordance with section 704-404(3), (5)(a), (b), (d), and (e), (7), (8), (9),
(10), and (11). As used in this section,
the term "licensed psychologist" includes psychologists exempted from
licensure by section 465-3(a)(3) and "qualified physician" means a
physician qualified by the court for the specific evaluation ordered.
(2) Upon the filing of an application pursuant to
section 704-413 for modification of conditions of release, the court may
proceed as provided in subsection (1)."]
SECTION 15. Section 704-415, Hawaii Revised Statutes, is repealed.
["§704-415
Disposition of application for discharge, conditional release, or
modification of conditions of release. (1) If
the court is satisfied from the report filed pursuant to section 704-414, and
such testimony of the reporting examiners as the court deems necessary, that:
(a) The person is affected by a physical
or mental disease, disorder, or defect and the discharge, conditional release,
or modification of conditions of release applied for may be granted without
danger to the committed or conditionally released person or to the person or
property of others; or
(b) The person is no longer affected by a
physical or mental disease, disorder, or defect,
the
court shall grant the application and order the relief. If the court is not so satisfied, it shall
promptly order a hearing.
(2) Any such hearing shall be deemed a civil
proceeding and the burden shall be upon the applicant to prove that the person
is no longer affected by a physical or mental disease, disorder, or defect or
may safely be either released on the conditions applied for or discharged. According to the determination of the court
upon the hearing, the person shall be:
(a) Discharged;
(b) Released
on such conditions as the court determines to be necessary; or
(c) Recommitted to the custody of the director
of health, subject to discharge or release only in
accordance with the procedure prescribed in section 704-412."]
SECTION 16. Section 704-421, Hawaii Revised Statutes, is repealed.
["§704-421
Proceedings for defendants charged with petty misdemeanors not involving
violence or attempted violence; criminal justice diversion program. (1) In cases where the
defendant is charged with a petty misdemeanor not involving violence or
attempted violence, if, at the hearing held pursuant to section 704-404(2)(a)
or at a further hearing held after the appointment of an examiner pursuant to
section 704-404(2)(b), the court determines that the defendant is fit to
proceed, then the proceedings against the defendant shall resume. In all other cases under this section where
fitness remains an outstanding issue, the court shall continue the suspension
of the proceedings and either commit the defendant to the custody of the
director of health to be placed in a hospital or other suitable facility,
including an outpatient facility, for further examination and assessment
or, in cases where the defendant was not subject to an order of commitment to
the director of health for the purpose of the fitness examination under section
704-404(2), the court may order that the defendant remain released on
conditions the court determines necessary for placement in a group home,
residence, or other facility prescribed by the director of health for further
assessment by a clinical team pursuant to subsection (3).
(2) In cases under this section where the
defendant's fitness to proceed remains an outstanding issue at the hearing held
pursuant to section 704-404(2)(a) or a further hearing held after the
appointment of an examiner pursuant to section 704-404(2)(b), as applicable,
the director of health, within fourteen days of that hearing or as soon
thereafter as is practicable, shall report to the court on the following:
(a) The defendant's current capacity to
understand the proceedings against the defendant and the defendant's current
ability to assist in the defendant's own defense;
(b) Whether, after assessment of the
defendant pursuant to subsection (3)(a) or (b), the defendant's clinical team
believes that the defendant meets the criteria for involuntary hospitalization
under section 334-60.2 or assisted community treatment under section 334-121;
and
(c) The date that the director of health
filed a petition for involuntary hospitalization or assisted community
treatment on behalf of the defendant pursuant to subsection (3)(a) or (b), as
applicable.
If,
following the report, the court finds the defendant fit to proceed, the
proceedings against the defendant shall resume.
In all other cases, the court shall dismiss the charge with or without
prejudice in the interest of justice.
(3) During the defendant's commitment to the
custody of the director of health or release on conditions pursuant to
subsection (1):
(a) If the
defendant's clinical team determines that the defendant meets the criteria for
involuntary hospitalization set forth in section 334-60.2, the director of
health, within seven days of the clinical team's determination, shall file with
the family court a petition for involuntary hospitalization pursuant to section
334-60.3. If the petition is
granted, the defendant shall remain hospitalized for a period of time as
provided by section 334-60.6; or
(b) If the defendant's clinical team
determines that the defendant does not meet the criteria for involuntary
hospitalization, or the court denies the petition for involuntary
hospitalization, the defendant's clinical team shall determine whether an
assisted community treatment plan is appropriate pursuant to part VIII of
chapter 334. If the clinical team
determines that an assisted community treatment plan is appropriate, the
psychiatrist or advanced practice registered nurse from the clinical team shall
prepare the certificate for assisted community treatment specified by section
334-123, including a written treatment plan for the provision of mental health
services to the defendant. The clinical
team shall identify a community mental health outpatient program that agrees to
provide mental health services to the defendant as the designated mental health
program under the assisted community treatment order. The clinical team shall provide the defendant
with a copy of the certificate. Within
ten days of provision of the certificate to the defendant by the clinical team,
the director of health shall file with the family court the assisted community
treatment petition described in section 334-123. When a petition for assisted community
treatment has been filed for a defendant, the defendant committed to the
custody of the director of health shall remain in custody until the family
court issues a decision on the petition; provided that the judge may order that
the subject be released during the pendency of that action.
(4) This section shall not apply to
any case under the jurisdiction of the family court unless the presiding judge
orders otherwise."]
PART V
SECTION 17. Section 134-7, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:
"(c) No person shall own, possess, or control any
firearm or ammunition if the person:
(1) Is or has been under treatment or counseling for addiction to, abuse of, or dependence upon any dangerous, harmful, or detrimental drug, intoxicating compound as defined in section 712-1240, or intoxicating liquor;
(2) Has been acquitted of a crime on the
grounds of mental disease, disorder, or defect pursuant to section [704-411]
704-402 or any similar provision under federal law, or the law of
another state, a United States territory, or the District of Columbia;
(3) Is or has been diagnosed with or treated for a medical, behavioral, psychological, emotional, or mental condition or disorder that causes or is likely to cause impairment in judgment, perception, or impulse control to an extent that presents an unreasonable risk to public health, safety, or welfare if the person were in possession or control of a firearm; or
(4) Has been adjudged to:
(A) Meet the criteria for involuntary hospitalization under section 334-60.2; or
(B) Be an "incapacitated person", as defined in section 560:5-102,
unless the person establishes, with appropriate medical documentation, that the person is no longer adversely affected by the criteria or statuses identified in this subsection."
SECTION 18. Section 134-86, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:
"(c) No person who:
(1) Is or has been under treatment or counseling for addiction to, abuse of, or dependence upon any dangerous, harmful, or detrimental drug; intoxicating compound as defined in section 712-1240; or intoxicating liquor;
(2) Has been acquitted of a crime on the
grounds of mental disease, disorder, or defect pursuant to section [704-411;]
704-402;
(3) Is or has been diagnosed as having a significant behavioral, emotional, or mental disorder as defined by the most current diagnostic manual of the American Psychiatric Association; or
(4) Is under treatment for an organic brain syndrome;
shall own, possess, or control an electric gun, unless the person has been medically documented to be no longer adversely affected by the addiction, abuse, dependence, syndrome, or mental disease, disorder, or defect."
SECTION 19. 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
(2) The
number of admissions to, discharges from, and lengths of stays in the
[(A) Original order under section 704-411(1)(a);
(B) Pending examination under section 704-411(3);
(C) Maximum
seventy-two-hour recommitment pending examination under section 704-413(1;
(D)] (A) Original order
under section 704-404; and
[(E)] (B) Original order under section 704-406;
(3) Number of persons committed to the
(4) Gross lengths of stay in the
(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 20. Section 334-60.6, Hawaii Revised Statutes, is amended to read as follows:
"§334-60.6 Period of detention. The psychiatric facility may detain a subject
for a period of time ordered by the court not to exceed ninety days from date
of admission unless sooner discharged by the facility pursuant to section
334-76 or section 334-74. At the end of
the ninety-day period the subject shall be discharged automatically except as
provided in sections 704‑406[, 704-411,] and 706-607, unless
before expiration of the period and by a proceeding initiated pursuant to
section 334‑60.3 the facility obtains a court order for the subject's
recommitment. Recommitment for a period
not to exceed ninety days may not be ordered unless the court determines that
the criteria for involuntary hospitalization set forth in section 334-60.2
continue to exist. If at the end of a
recommitment period the court finds that the criteria for involuntary
hospitalization set forth in section 334-60.2 continue to exist and are likely
to continue beyond ninety days, the court may order recommitment for a period
not to exceed one hundred eighty days.
Nothing in this section shall preclude a facility from accepting for voluntary inpatient treatment, in accordance with the procedures in section 334-60.1, a patient, for whom the facility contemplates discharge pursuant to section 334-60.7 and who voluntarily agrees to further hospitalization after the period of commitment has expired, or where the patient is no longer a proper subject for commitment."
SECTION 21. Section 334-76, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) Subject to any special requirements of
law as provided in sections 704-406[, 704-411,] and 706-607 or
elsewhere, with respect to patients committed on court order from a criminal
proceeding, the administrator of a psychiatric facility, the administrator's
deputy, or the attending physician, pursuant to section 334-60.7, shall:
(1) Send a notice of intent to discharge or notice of the patient's admission to voluntary inpatient treatment to those persons specified in the order of commitment as entitled to receive notice of intent to discharge, by mail at their last known address; and
(2) In cases where the commitment directly resulted from legal proceedings under chapter 704 or 706, send a notice of intent to discharge or notice of the patient's admission to voluntary inpatient treatment to the prosecuting attorney of the county from which the person was originally committed, by facsimile or electronically."
SECTION 22. Section 704-410.5, Hawaii Revised Statutes, is amended to read as follows:
"[[]§704-410.5[]]
Conditional release; duration limited in nonfelony cases. For any defendant granted conditional
release in a nonfelony case pursuant to section [704-411(1)(b), 704-412,
704-414, or 704-415,] 704-406, the period of conditional release
shall not exceed one year."
SECTION 23. Section 704-420, Hawaii Revised Statutes, is amended to read as follows:
"[[]§704-420[]] Examination reports; provided
to director of health. Copies of all
examination reports made pursuant to sections 704-404[,] and
704-406[, 704-411, and 704-414] shall be provided to the director of
health."
SECTION 24. Section 806-73, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b) All adult probation records
shall be confidential and shall not be deemed to be public records. As used in this section, the term
"records" includes but is not limited to all records made by any
adult probation officer in the course of performing the probation officer's
official duties. The records, or the
content of the records, shall be divulged only as follows:
(1) A copy of any adult probation case record or of a portion of it, or the case record itself, upon request, may be provided to:
(A) An adult probation officer, court officer, social worker of a Hawaii state adult probation unit, or a family court officer who is preparing a report for the courts; or
(B) A state or federal criminal justice agency, or state or federal court program that:
(i) Is providing supervision of a defendant or offender convicted and sentenced by the courts of Hawaii; or
(ii) Is responsible for the preparation of a report for a court;
(2) The residence address, work address, home telephone number, or work telephone number of a current or former defendant shall be provided only to:
(A) A law enforcement officer as defined in section 710-1000 to locate the probationer for the purpose of serving a summons or bench warrant in a civil, criminal, or deportation hearing, or for the purpose of a criminal investigation; or
(B) A collection agency or licensed attorney contracted by the judiciary to collect any delinquent court-ordered penalties, fines, restitution, sanctions, and court costs pursuant to section 601-17.5;
(3) A copy of a presentence report or investigative report shall be provided only to:
(A) The persons or entities named in section 706-604;
(B) The Hawaii paroling authority;
(C) Any psychiatrist, psychologist, or other treatment practitioner who is treating the defendant pursuant to a court order or parole order for that treatment;
(D) The intake service centers;
(E) In accordance with applicable law, persons or entities doing research; and
(F) Any Hawaii state adult probation officer or adult probation officer of another state or federal jurisdiction who:
(i) Is engaged in the supervision of a defendant or offender convicted and sentenced in the courts of Hawaii; or
(ii) Is engaged in the preparation of a report for a court regarding a defendant or offender convicted and sentenced in the courts of Hawaii;
(4) Access to adult probation records by a victim, as defined in section 706-646 to enforce an order filed pursuant to section 706-647, shall be limited to the:
(A) Name and contact information of the defendant's adult probation officer;
(B) Compliance record of the defendant with court-ordered payments;
(C) Amounts paid by the defendant;
(D) Dates of the payments made by the defendant;
(E) Payee of payments made by the defendant; and
(F) Remaining unpaid balance,
without the assessment of a filing fee or surcharge;
(5) Upon written request, the victim, or the parent or guardian of a minor victim or incapacitated victim, of a defendant who has been placed on probation for an offense under section 580-10(d)(1), 586-4(e), 586‑11(a), or 709-906 may be notified by the defendant's probation officer when the probation officer has any information relating to the safety and welfare of the victim;
(6) Notwithstanding paragraph (3) and upon notice to the defendant, records and information relating to the defendant's risk assessment and need for treatment services; information related to the defendant's past treatment and assessments, with the prior written consent of the defendant for information from a treatment service provider; provided that for any substance abuse records such release shall be subject to title 42 Code of Federal Regulations part 2, relating to the confidentiality of alcohol and drug abuse patient records; and information that has therapeutic or rehabilitative benefit, may be provided to:
(A) A case management, assessment, or treatment service provider assigned by adult probation to service the defendant; provided that such information shall be given only upon the acceptance or admittance of the defendant into a treatment program;
(B) Correctional case manager, correctional unit manager, and parole officers involved with the defendant's treatment or supervision; and
(C) In accordance with applicable law, persons or entities doing research;
(7) Probation drug test results may be released with prior written consent of a defendant to the defendant's treating physician when test results indicate substance use which may be compromising the defendant's medical care or treatment;
(8) Records obtained pursuant to section [704-404(9)]
704‑404(10) may be made available as provided in that section;
(9) Any person, agency, or entity receiving records, or contents of records, pursuant to this subsection shall be subject to the same restrictions on disclosure of the records as Hawaii state adult probation offices; and
(10) Any person who uses the information covered by this subsection for purposes inconsistent with the intent of this subsection or outside of the scope of the person's official duties shall be fined no more than $500.
(c) Every probation officer, within the scope of the probation officer's duties, shall have the powers of a police officer."
PART VI
SECTION 25. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 26. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
SECTION 27. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 28. This Act shall take effect upon its approval.
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Report Title:
Mental Illness; Severe Cognitive Impairment; Assisted Community Treatment; Involuntary Hospitalization; Hawaii Penal Code; Penal Responsibility; Fitness Proceed; Examination; Order for Treatment
Description:
Clarifies the procedures for assisted community treatment, examination, and hospitalization for individuals who may be mentally ill or suffering from substance abuse who are imminently dangerous to self, others, or property. Amends the procedures for involuntary hospitalizations and assisted community treatment petitions. Amends the Hawaii Penal Code to streamline the determination process for penal responsibility and fitness to proceed, including requiring courts to issue orders for treatment to defendants excluded from penal responsibility due to a mental disease, disorder, or defect.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.