H. B. 2033
(By Delegates Linch, Pino, Trump and Staton)
(Introduced January 16, 1995; referred to the Committee on the
Judiciary)
A BILL to amend and reenact sections four, five, six, seven and
eight, article six-a, chapter twenty-seven of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended; and to further amend said article by adding thereto
two new sections, designated section nine and ten, all
relating to commitment of mentally ill persons charged or
convicted of a crime.
Be it enacted by the Legislature of West Virginia:
That sections four, five, six, seven and eight, article six-
a, chapter twenty-seven of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended and
reenacted; and that said article be further amended by adding
thereto two new sections, designated sections nine and ten, all
to read as follows:
ARTICLE 6A. COMMITMENT OF PERSONS CHARGED OR CONVICTED OF A
CRIME.
§27-6A-4. Discharge.
No person initially committed to a mental health facility
under this article shall be discharged from a mental health facility unless the physician in charge communicates his
intention to discharge such person to the committing court and to
the prosecuting attorney of the county within which the alleged
crime occurred. If within twenty days after the receipt of such
communication the committing court makes no written objection to
such discharge, the physician in charge may discharge such
person. In the event of a written objection by the committing
court, a hearing shall be held by a court of record within ten
days thereafter and the person shall be discharged unless the
court of record conducts a hearing and makes the findings
required by section four, article five of this chapter.
§27-6A-4. Court jurisdiction over persons found not guilty by
reason of mental illness.
After the entry of a judgment of not guilty by reason of
mental illness, the court of record shall determine on the record
the offense of which the person otherwise would have been
convicted, and the maximum sentence he could have received. The
court may relinquish jurisdiction over the mentally ill defendant
if it is satisfied that the person is either no longer mentally
ill, or if mentally ill, no longer represents a substantial
danger to self or others.
The court may not discharge a mentally ill defendant during
the court's designated supervisory period when that individual's
mental illness is in remission as a result of medication or
hospitalization if it can be determined within a reasonable
degree of medical certainty that without continued medication or hospitalization the defendant's mental illness will reoccur,
making him a substantial danger to self or others. That person
may, however, be a candidate for conditional release in
accordance with section six of this article.
§27-6A-5. Periodic review of person found incompetent to stand
trial.
The periodic review of a person who has been found
incompetent to stand trial shall include a clinical opinion with
regard to the person's competence to stand trial, which opinion
shall be made a part of the patient's medical record. If any
person previously found incompetent to stand trial is later
determined to be competent, the director of mental health shall
notify the court of record, which shall promptly hold a hearing
on the person's competency to stand trial. Any person found
incompetent to stand trial may at any time petition the court of
record for a hearing on his competency. Whenever a hearing is
held and the court of record finds that the person is competent
to stand trial, his commitment, if any, to a mental health
facility shall be terminated and the court of record shall order
his return to the custody of the sheriff for trial. However, if
the person requests continued care and treatment during the
pendency of the criminal proceedings against him and the mental
health facility agrees to provide such care and treatment, the
court of record may order the further hospitalization of such
person.
§27-6A-5. Discharge.
Those persons committed under the provisions of this article
shall be discharged from the mental health facility only upon an
order from the court of record which committed the defendant. If
the supervising physician finds that a mentally ill defendant has
recovered from his mental illness, or, that the defendant is
still mentally ill but does not present a substantial danger to
self or others, or is a candidate for conditional release as
provided for in section six of this article, the supervising
physician shall notify the court that the defendant is a
candidate for discharge or conditional release and shall provide
the court with a report stating the facts that form the basis for
the recommendation.
The court shall promptly conduct a hearing after receipt of
the physician's notification. The court clerk shall notify the
prosecuting attorney, and the defendant's attorney of the date
and time of the hearing.
If the court finds that the person is no longer mentally
ill, or if mentally ill, that the person no longer presents a
substantial danger to self or others, it shall order that the
defendant be discharged from commitment.
If the court finds that the person is still mentally ill and
is a danger to self or to others, but can be controlled if
conditionally released with treatment as a condition of release,
it shall order the person conditionally released in accordance
with section six of this article. If the court finds that the
defendant has not recovered from his mental illness and is a substantial danger to self or others and cannot adequately be
controlled if conditionally released under supervision, the court
shall order that the commitment be continued.
§27-6A-6. Judicial hearing of defendant's defense other than not
guilty by reason of mental illness.
If a defendant who has been found to be incompetent to stand
trial believes that he can establish a defense of not guilty to
the charges pending against him, other than the defense of not
guilty by reason of mental illness, mental retardation or
addiction, he may request an opportunity to offer a defense
thereto on the merits before the court which has criminal
jurisdiction. If the person is unable to obtain legal counsel,
the court of record shall appoint counsel for the defendant to
assist him in supporting the request by affidavit or other
evidence. If the court of record in its discretion grants such a
request, the evidence of the defendant and of the state shall be
heard by the court of record sitting without a jury. If after
hearing such petition the court of record finds insufficient
evidence to support a conviction, it shall dismiss the indictment
and order the release of the defendant from criminal custody. The
order may be stayed for ten days to allow institution of civil
proceedings pursuant to article five of this chapter.
If the attending physician finds that the mentally ill
defendant is not eligible for discharge as provided for in
section four of this article, but that his mental illness and dangerousness can be controlled with proper care, medication,
supervision or treatment if he is conditionally released, the
attending physician shall prepare a report and notify the
supervising court that the defendant is a candidate for
conditional release.
The physician shall provide the supervising court, the
defendant's attorney, and the prosecuting attorney with a copy of
the report issued by the physician and the conditional release
plan. The court shall conduct a hearing on the issue of
conditional release within thirty days of receiving the report.
The department of health may provide treatment or contract
with a local mental health center or other public or private
provider to provide treatment for a defendant who is
conditionally released under this section.
If the supervising court determines that the individual has
violated the terms of his conditional release, the court may
require a hearing to determine whether a violation of the terms
of the conditional release have been violated. The court clerk
shall notify the prosecuting attorney, and the defendant's
attorney of the date and time of the hearing. If following the
hearing it appears to the satisfaction of the court a violation
has occurred, the court may then order the individual back to a
mental health facility for further reevaluation and treatment.
§27-6A-7. Release of defendant during course of criminal
proceedings.
Notwithstanding any finding of incompetence to stand trial under the provisions of this article, the court of record may at
any stage of the criminal proceedings allow a defendant to be
released with or without bail.
§27-6A-7. Periodic review of person found incompetent to
stand trial.
The periodic review of a person who has been found
incompetent to stand trial shall include a clinical opinion with
regard to the person's competence to stand trial, which opinion
shall be made a part of the patient's medical record. If any
person previously found incompetent to stand trial is later
determined to be competent, the director of mental health shall
notify the court of record, which shall promptly hold a hearing
on the person's competency to stand trial. Any person found
incompetent to stand trial may at any time petition the court of
record for a hearing on his competency. Whenever a hearing is
held and the court of record finds that the person is competent
to stand trial, his commitment, if any, to a mental health
facility shall be terminated and the court of record shall order
his return to the custody of the sheriff for trial. However, if
the person requests continued care and treatment during the
pendency of the criminal proceedings against him and the mental
health facility agrees to provide such care and treatment, the
court of record may order the further hospitalization of such
person.
§27-6A-8. Credit for time; expenses.
(a) If a person is convicted of a crime, any time spent in involuntary confinement in a mental health facility as a result
of being charged with such crimes, shall be credited to this
sentence.
(b) All medical and psychological expenses attendant upon these
proceedings shall be paid by the state.
§27-6A-8. Judicial hearing of defendant's defense other
than not guilty by reason of mental illness.
If a defendant who has been found to be incompetent to stand
trial believes that he can establish a defense of not guilty to
the charges pending against him, other than the defense of not
guilty by reason of mental illness, he may request an opportunity
to offer a defense thereto on the merits before the court which
has criminal jurisdiction. If the person is unable to obtain
legal counsel, the court of record shall appoint counsel for the
defendant to assist him in supporting the request by affidavit or
other evidence. If the court of record in its discretion grants
such a request, the evidence of the defendant and of the state
shall be heard by the court of record sitting without a jury. If
after hearing such petition the court of record finds
insufficient evidence to support a conviction, it shall dismiss
the indictment and order the release of the defendant from
criminal custody. The order may be stayed for ten days to allow
institution of civil proceedings pursuant to article five of this
chapter.
§27-6A-9. Release of defendant during court of criminal
proceedings.
Notwithstanding any finding of incompetence to stand trial
under the provisions of this article, the court of record may at
any stage of the criminal proceedings allow a defendant to be
released with or without bail.
§
27-6A-10. Credit for time; expenses.
(a) If a person is convicted of a crime, any time spent in
involuntary confinement in a mental health facility as a result
of being charged with such crimes, shall be credited to this
sentence.
(b) All medical and psychological expenses attendant upon
these proceedings shall be paid by the state.
NOTE: The purpose of this bill is to shift the release
determination of persons found not guilty by reason of insanity
to the sentencing court from the attending physician, and to
establish a conditional release program which allows for the
court to establish terms for release for these individuals.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
This bill was recommended for passage at the 1995
legislative session by the Joint Standing Committee on the
Judiciary.