Senate Bill No. 155
(By Senators Deem and Buckalew)
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[Introduced January 23, 1995; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact sections three, 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 a new section, designated section nine, all relating
to commitment of mentally ill and retarded persons charged
or convicted of a crime.
Be it enacted by the Legislature of West Virginia:
That sections three, 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 a new section, designated sections nine, all to read as follows:
ARTICLE 6A. COMMITMENT OF PERSONS CHARGED OR CONVICTED OF A
CRIME.
§27-6A-3. Hospitalization of defendants found not guilty by
reason of mental illness; notice to prosecuting attorney.
(a) The court of record may order that a person who has been
found not guilty by reason of mental illness, mental retardation
or addiction be hospitalized in a mental health facility for a
period not to exceed forty days for observation and examination.
(b) During the observation period of a person found not
guilty of any crime by reason of mental illness, mental
retardation or addiction, procedures for civil commitment may be
initiated before the court having jurisdiction pursuant to
article five of this chapter.
(c) The prosecuting attorney of the county within which the
alleged crime or crimes occurred shall be notified of any hearing
conducted for a person under the provisions of this section or
any subsequent hearing for such person within five years of the
alleged crime conducted under the provisions of this chapter
relating to the commitment of the mentally ill, mentally retarded
or addicted and shall have a right to be heard at such hearings.
reason of mental illness or mental retardation.
After the entry of a judgment of not guilty by reason of
mental illness or mental retardation, 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 shall commit such defendant to a mental
health facility under the jurisdiction of the department of
health, with the court retaining jurisdiction over the defendant
for the maximum sentence period. During this period, 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 danger to self or others.
Thirty days prior to the release of a defendant because of
the expiration of the court's jurisdiction, upon determination of
the defendants supervising physician that the defendant's
mentally illness or mentally retardation causes the defendant to
be dangerous to self or others, the supervising physician shall
notify the prosecuting attorney in the county of the court having
jurisdiction of such opinion. Following this notification, the
prosecuting attorney shall file a civil commitment application
against the defendant, pursuant to article five of this chapter.
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 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-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. 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 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, the victim or victim's legal representative
if known, 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
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
danger to self or others and cannot adequately be controlled if
conditionally released under supervision, the court shall order
that the commitment be continued.
A Defendant found not guilty by reason of mental retardation
may also be a candidate for release from the court's jurisdiction
or for conditional release under section six of this article, at
the discretion of the court.
§27-6A-5. Periodic review of person found incompetent to stand
trail.
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.
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.
In the case of the defendant having been found not guilty by
reason of mental retardation, and the supervising physician believes the person will not be dangerous if kept in a lessor
restrictive environment, then the supervising court may provide
for conditional release of the defendant. The attending
physician shall prepare a conditional release plan, listing the
type of care and treatment that the mentally retarded defendant
needs and recommending treatment and a treatment provider.
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. Following the notification of the victim or the victim's
personal representative if known of the potential release of the
defendant, 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 licensed by the state of West Virginia or the federal
government to provide treatment for a defendant who is
conditionally released under this section. The department of
health or any provider contracted by the department of health to
provide treatment to a defendant is required to notify the
supervising court of any violations by the defendant of his conditional release requirements.
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, the victim or victim's
legal representative if known, 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-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.
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-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.
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 or mental retardation, 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-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.
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-9. 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
or mental retardation 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.