REPORT TITLE:
Penal Responsibility


DESCRIPTION:
Authorizes plea and verdict of guilty but mentally ill.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
THE SENATE                              S.B. NO.           2195
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO PENAL RESPONSIBILITY.



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

 1      SECTION 1.  Chapter 704, Hawaii Revised Statutes, is amended
 
 2 by adding five new sections to be appropriately designated and to
 
 3 read as follows:
 
 4      "704-A  Verdict of guilty but mentally ill.  Whenever a
 
 5 defendant asserts a defense of physical or mental disease,
 
 6 disorder, or defect excluding responsibility pursuant to section
 
 7 704-400, the trier of fact may find the defendant guilty but
 
 8 mentally ill if the trier of fact finds all of the following:
 
 9      (a)  The State has proven beyond a reasonable doubt that the
 
10           defendant is guilty of the offense charged;
 
11      (b)  The defendant suffered from a physical or mental
 
12           disease, disorder, or defect at the time of the
 
13           commission of the offense; and
 
14      (c)  The defendant has failed to prove, as required by
 
15           section 704-402, that the physical or mental disease,
 
16           disorder, or defect caused the person, at the time of
 
17           the commission of the offense, to lack substantial
 
18           capacity either to appreciate the wrongfulness of the
 
19           person's conduct or to conform the person's conduct to
 

 
Page 2                                                     
                                     S.B. NO.           2195
                                                        
                                                        

 
 1           the requirements of the law.
 
 2      704-B  Plea of guilty but mentally ill; examination
 
 3 required.  If the defendant pleads guilty but mentally ill, the
 
 4 court shall not accept the plea until the defendant has undergone
 
 5 examination pursuant to section 704-404 and the court has held a
 
 6 hearing on the issue of the defendant's mental condition and is
 
 7 satisfied that there is a factual basis that the defendant
 
 8 suffered from a physical or mental disease, disorder, or defect
 
 9 at the time of the offense to which the plea is entered.
 
10      704-C  Legal effect of finding of guilty but mentally ill;
 
11 commitment; conditional release; procedure for separate post-
 
12 acquittal hearing.  (1)  If a defendant is found guilty but
 
13 mentally ill or enters a plea to that effect, which is accepted
 
14 by the court, the court shall impose any sentence permissible
 
15 under law for the particular offense.  In addition, the court, on
 
16 the basis of the report made pursuant to section 704-404, if
 
17 uncontested, or the medical or psychological evidence given at
 
18 the trial or at a separate hearing, shall order as follows:
 
19      (a)  That the defendant be committed to the custody of the
 
20           director of health to be placed in an appropriate
 
21           institution for custody, care, and treatment, if the
 
22           court finds that the defendant presents a risk of
 
23           danger to the defendant or others and that the
 

 
Page 3                                                     
                                     S.B. NO.           2195
                                                        
                                                        

 
 1           defendant is not a proper subject for criminal
 
 2           incarceration; provided that the director of health
 
 3           shall place defendants charged with misdemeanors or
 
 4           felonies not involving violence or attempted violence
 
 5           in the least restrictive environment appropriate in
 
 6           light of the defendant's treatment needs and the need
 
 7           to prevent harm to the person confined and others;
 
 8      (b)  That the defendant be committed to the custody of the
 
 9           department of public safety with express requirements
 
10           for care, supervision, and treatment, if the court
 
11           finds that the defendant is affected by physical or
 
12           mental disease, disorder, or defect and that the
 
13           defendant presents a danger to the defendant or others,
 
14           but that the defendant can be controlled adequately if
 
15           given proper care, supervision, and treatment; or
 
16      (c)  That the defendant be placed on conditional release or
 
17           probation subject to conditions the court determines
 
18           necessary, if this disposition would be appropriate for
 
19           a defendant convicted of the same offense and the court
 
20           finds that:
 
21           (i)  The defendant is no longer affected by physical or
 
22                mental disease, disorder, or defect or, if so
 
23                affected, that the defendant no longer presents a
 

 
Page 4                                                     
                                     S.B. NO.           2195
                                                        
                                                        

 
 1                danger to the defendant or others and is not in
 
 2                need of care, supervision, or treatment; or
 
 3          (ii)  The defendant remains affected by a physical or
 
 4                mental disease, disorder, or defect, but that the
 
 5                defendant no longer presents a danger to the
 
 6                defendant or others and can be controlled
 
 7                adequately if given proper care, supervision, and
 
 8                treatment;
 
 9      (2)  The court, upon its own motion or on the motion of the
 
10 prosecuting attorney or the defendant, shall order a separate
 
11 post-acquittal hearing for the purpose of taking evidence on the
 
12 issue of the risk of danger that the defendant presents.
 
13      (3)  When ordering a hearing pursuant to subsection (2):
 
14      (a)  In nonfelony cases, the court shall appoint a qualified
 
15           examiner to examine and report upon the physical and
 
16           mental condition of the defendant.  The court may
 
17           appoint either a psychiatrist or a licensed
 
18           psychologist.  The examiner may be designated by the
 
19           director of health from within the department of
 
20           health.  The examiner shall be appointed from a list of
 
21           certified examiners as determined by the department of
 
22           health.  The court, in appropriate circumstances, may
 
23           appoint an additional examiner or examiners; and
 

 
Page 5                                                     
                                     S.B. NO.           2195
                                                        
                                                        

 
 1      (b)  In felony cases, the court shall appoint three
 
 2           qualified examiners to examine and report upon the
 
 3           physical and mental condition of the defendant.  In
 
 4           each case the court shall appoint at least one
 
 5           psychiatrist and at least one licensed psychologist.
 
 6           The third member may be either a psychiatrist, a
 
 7           licensed psychologist, or a qualified physician.  One
 
 8           of the three shall be a psychiatrist or licensed
 
 9           psychologist designated by the director of health from
 
10           within the department of health.  The three examiners
 
11           shall be appointed from a list of certified examiners
 
12           as determined by the department of health.
 
13 To facilitate the examination and the proceedings thereon, the
 
14 court may order the defendant to be committed to a hospital or
 
15 other suitable facility for the purpose of examination for a
 
16 period not exceeding thirty days or a longer period as the court
 
17 determines to be necessary for the purpose upon written findings
 
18 for good cause shown.  The court may direct that qualified
 
19 physicians or psychologists retained by the defendant be
 
20 permitted to witness and participate in the examination.  The
 
21 examination and report and the compensation of persons making or
 
22 assisting in the examination shall be in accord with section
 
23 704-404(3), (4)(a) and (b), (6), (7), (8), and (9).  As used in
 

 
Page 6                                                     
                                     S.B. NO.           2195
                                                        
                                                        

 
 1 this section, the term "licensed psychologist" includes
 
 2 psychologists exempted from licensure by section 465-3(a)(3).
 
 3      (4)  Nothing in this section is intended to prevent the
 
 4 court from ordering the involuntary hospitalization of the
 
 5 defendant pursuant to section 706-607.
 
 6      704-D  Treatment of committed person found guilty but
 
 7 mentally ill.  (1)  When any person found guilty but mentally ill
 
 8 is sentenced to the custody of the department of public safety,
 
 9 the department shall make periodic examination and inquiry
 
10 concerning the nature, extent, continuance, and treatment of the
 
11 defendant's physical or mental disease, disorder, or defect.  The
 
12 department shall provide psychiatric, psychological, or other
 
13 counseling and treatment for the defendant as it determines
 
14 necessary.
 
15      (2)  The department of public safety may transfer custody of
 
16 the defendant to the department of health in accordance with
 
17 section 334-74.
 
18      (3)  The department of health shall return to the department
 
19 of public safety any person committed to it pursuant to this
 
20 section or section 704-C(1)(a) whose sentence has not expired and
 
21 whom the department of health determines no longer requires
 
22 hospitalization for mental treatment.
 
23      (4)  The department of public safety shall notify the
 

 
Page 7                                                     
                                     S.B. NO.           2195
                                                        
                                                        

 
 1 department of health of the expiration of the sentence of any
 
 2 person transferred to the department of health under this
 
 3 section.  If the department of health determines that any person
 
 4 under its custody pursuant to this section or section 704-C(1)(a)
 
 5 requires further hospitalization at the expiration of the
 
 6 person's sentence, it shall institute proceedings pursuant to
 
 7 section 334-74.
 
 8      704-E  Treatment of person released on probation or
 
 9 condition; application for modification or discharge; termination
 
10 of conditional release; commitment.  (1)  Any person released on
 
11 probation or condition pursuant to section 704-C(1)(c)(ii), shall
 
12 continue to receive psychological or psychiatric treatment and
 
13 care until discharged from conditional release or probation.  The
 
14 person shall follow all prescribed treatments and take all
 
15 prescribed medications according to the instructions of the
 
16 person's treating mental health professional.  If any mental
 
17 health professional treating any conditionally released person
 
18 believes that the person is either not complying with the
 
19 requirements of this section or that there is other evidence that
 
20 hospitalization is appropriate, the mental health professional
 
21 shall report the matter to the probation officer of the
 
22 conditionally released person.  The probation officer may order
 
23 the conditionally released person to be hospitalized for a period
 

 
Page 8                                                     
                                     S.B. NO.           2195
                                                        
                                                        

 
 1 not to exceed seventy-two hours if the probation officer has
 
 2 probable cause to believe the person has violated the
 
 3 requirements of this subsection.  No person shall be hospitalized
 
 4 beyond the seventy-two-hour period unless a hearing has been held
 
 5 pursuant to this section.
 
 6      (2)  Any person released on condition pursuant to section
 
 7 704-C(1)(c)(ii) may apply to the court that ordered the
 
 8 conditional release for discharge from or modification of the
 
 9 order granting conditional release on the ground that the person
 
10 may be discharged or the order modified without danger to the
 
11 person or to others.  The application shall be accompanied by a
 
12 supporting affidavit of a qualified physician or licensed
 
13 psychologist.  A copy of the application and affidavit shall be
 
14 transmitted to the prosecuting attorney of the county in which
 
15 the person is confined and to any persons supervising the
 
16 person's release, and the hearing on the application shall be
 
17 held following notice to these persons.  If the determination of
 
18 the court is adverse to the application, the person shall not be
 
19 permitted to file further application until one year has elapsed
 
20 from the date of any preceding hearing on an application for
 
21 modification of conditions of release or for discharge.
 
22      (3)  If, at any time after the order pursuant to section
 
23 704-C(1)(c)(ii) granting conditional release, the court
 

 
Page 9                                                     
                                     S.B. NO.           2195
                                                        
                                                        

 
 1 determines, after hearing evidence, that the conditions of
 
 2 release have not been fulfilled or that, for the safety of the
 
 3 person or others, the person's conditional release should be
 
 4 revoked, the court may modify the conditions of release or revoke
 
 5 probation and commit the person to the custody of the department
 
 6 of public safety."
 
 7      SECTION 2.  Section 704-402, Hawaii Revised Statutes, is
 
 8 amended to read as follows:
 
 9      "704-402  Physical or mental disease, disorder, or defect
 
10 excluding responsibility is an affirmative defense; form of
 
11 verdict and judgment when finding of irresponsibility or guilty
 
12 but mentally ill is made.(1)  Physical or mental disease,
 
13 disorder, or defect excluding responsibility is an affirmative
 
14 defense.
 
15      (2)  When the defense provided for by subsection (1) is
 
16 submitted to a jury, the court [shall], if requested by the
 
17 defendant, shall instruct the jury as to the consequences to the
 
18 defendant of an acquittal on the ground of physical or mental
 
19 disease, disorder, or defect excluding responsibility.
 
20      (3)  When the defendant is acquitted on the ground of
 
21 physical or mental disease, disorder, or defect excluding
 
22 responsibility, the verdict and the judgment shall so state.
 
23      (4)  When the defense provided for by subsection (1) is
 

 
Page 10                                                    
                                     S.B. NO.           2195
                                                        
                                                        

 
 1 submitted to a jury, the court also shall provide the jury with a
 
 2 special verdict form of guilty but mentally ill, as to each
 
 3 offense charged, and shall instruct the jury that a special
 
 4 verdict of guilty but mentally ill may be returned pursuant to
 
 5 section 704-A.  If the defendant is found guilty but mentally
 
 6 ill, the verdict and the judgment shall so state."
 
 7      SECTION 3.  Section 704-408, Hawaii Revised Statutes, is
 
 8 amended to read as follows:
 
 9      "704-408  Determination of irresponsibility.  (1)  If the
 
10 report of the examiners filed pursuant to section 704-404, or the
 
11 report of examiners of the defendant's choice under section
 
12 704-409, states that the defendant at the time of the conduct
 
13 alleged suffered from a physical or mental disease, disorder, or
 
14 defect [which] that substantially impaired the defendant's
 
15 capacity to appreciate the wrongfulness of the defendant's
 
16 conduct or to conform the defendant's conduct to the requirements
 
17 of law, the court shall submit the defense of physical or mental
 
18 disease, disorder, or defect to the jury or the trier of fact at
 
19 the trial of the charge against the defendant.  At the time of
 
20 submitting this defense, the court also shall instruct the jury
 
21 pursuant to section 704-402(4).
 
22      (2)  If the report states that the defendant at the time of
 
23 the conduct alleged suffered from a physical or mental disease,
 

 
Page 11                                                    
                                     S.B. NO.           2195
                                                        
                                                        

 
 1 disorder, or defect that did not substantially impair the
 
 2 defendant's capacity to appreciate the wrongfulness of the
 
 3 defendant's conduct or to conform the defendant's conduct to the
 
 4 requirements of law, the court, if requested by the defense, may
 
 5 instruct the jury pursuant to section 704-402(4)."
 
 6      SECTION 4.  In codifying the new sections added by section 1
 
 7 of this Act, the revisor of statutes shall substitute appropriate
 
 8 section numbers for the letters used in the new sections
 
 9 designated in this Act.
 
10      SECTION 5.  This Act does not affect rights and duties that
 
11 matured, penalties that were incurred, and proceedings that were
 
12 begun, before its effective date.
 
13      SECTION 6.  Statutory material to be repealed is bracketed.
 
14 New statutory material is underscored.
 
15      SECTION 7.  This Act shall take effect upon its approval.
 
16 
 
17                           INTRODUCED BY:_________________________