77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 893
Senate Bill 421
Sponsored by Senator PROZANSKI (at the request of Kristie
Kilcullen and John Kilcullen) (Presession filed.)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Authorizes district attorney to initiate commitment proceeding
when person charged with certain crimes lacks capacity to stand
trial and is dangerous and in need of commitment. Authorizes
court to establish commitment period of up to five years.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to civil commitments; creating new provisions; amending
ORS 3.408, 161.370, 426.250 and 426.300; and declaring an
emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Section 2 of this 2013 Act is added to and made
a part of ORS chapter 426. + }
SECTION 2. { + (1) A district attorney may petition the court
to initiate commitment proceedings described in this section if:
(a) A court has determined that an individual who is charged
with a crime listed in ORS 137.700 lacks the capacity to stand
trial under ORS 161.370; and
(b)(A) The period of time described in ORS 161.370 (7) has
expired; or
(B) A court has determined that there is no substantial
probability that the individual, in the foreseeable future, will
gain or regain the capacity to stand trial.
(2)(a) Upon receipt of a petition filed under subsection (1) of
this section, the court shall schedule a hearing. Following the
hearing, the court shall order that the individual be committed
to the custody of the Oregon Health Authority if the court
determines by clear and convincing evidence that, because of a
mental disease or defect, the individual is dangerous and in need
of commitment.
(b) As a component of the determination described in paragraph
(a) of this subsection, the court may enter an order finding that
the individual committed the acts alleged in the criminal
prosecution. The findings may not be admitted in a criminal
prosecution.
(3) When the court enters an order under subsection (2)(a) of
this section, the court shall establish a commitment period of
not less than one year and not more than five years. The court
may not establish a commitment period that exceeds two years
unless the court finds to a reasonable degree of medical
certainty that, as a result of a mental disease or defect, the
individual is likely to remain dangerous and in need of
commitment.
(4) An individual committed under this section shall be
committed to a state hospital or, if the individual is under 18
years of age, to a secure intensive community inpatient facility
for custody, care and treatment. The individual shall remain
committed in a hospital or facility for the duration of the
commitment unless the court, after a hearing, enters an order:
(a) Initiating commitment proceedings under ORS 426.070 or
427.235 to 427.290; or
(b) Discharging the individual from the commitment described in
this section.
(5)(a) If the court establishes a commitment period under
subsection (3) of this section that exceeds two years, an
individual committed under this section may petition the court
for an order described in subsection (4) of this section at any
time more than two years after the date the court's order is
entered in the register and at intervals of not less than two
years thereafter.
(b) The superintendent of the state hospital, or the director
of the secure intensive community inpatient facility, to which an
individual is committed under this section shall petition the
court for an order described in subsection (4)(b) of this section
if the superintendent or director determines that:
(A) The individual no longer suffers from a mental disease or
defect; or
(B) The individual suffers from a mental disease or defect but
is no longer dangerous and in need of commitment.
(6) If, on the date that is 60 days before the expiration of
the commitment period established in subsection (3) of this
section, the individual remains committed, the court shall
schedule a hearing and give notice to the district attorney and
counsel for the individual. Following the hearing, the court may
enter an order described in subsection (3) or (4) of this
section.
(7)(a) An individual subject to a petition described in this
section has the right to obtain suitable legal counsel possessing
skills and experience commensurate with the complexity of the
case.
(b) If the individual is determined to be financially eligible,
the court shall appoint legal counsel to represent the
individual. If the court has previously appointed counsel to
represent the individual in the criminal proceeding for which the
individual was found to lack the capacity to stand trial, the
court may continue the appointment.
(8) The district attorney shall represent the state at hearings
conducted under this section.
(9) The court shall dismiss criminal charges pending against an
individual committed under this section only on motion of the
district attorney or if the statute of limitations has
expired. + }
SECTION 3. ORS 161.370 is amended to read:
161.370. (1) When the defendant's fitness to proceed is drawn
in question, the issue shall be determined by the court. If
neither the prosecuting attorney nor counsel for the defendant
contests the finding of the report filed under ORS 161.365, the
court may make the determination on the basis of the report. If
the finding is contested, the court shall hold a hearing on the
issue. If the report is received in evidence in the hearing, the
party who contests the finding has the right to summon and to
cross-examine any psychiatrist or psychologist who submitted the
report and to offer evidence upon the issue. Other evidence
regarding the defendant's fitness to proceed may be introduced by
either party.
(2) If the court determines that the defendant lacks fitness to
proceed, the criminal proceeding against the defendant shall be
suspended and:
(a) If the court finds that the defendant is dangerous to self
or others as a result of mental disease or defect, or that the
services and supervision necessary to restore the defendant's
fitness to proceed are not available in the community, the court
shall commit the defendant to the custody of the superintendent
of a state mental hospital or director of a facility, designated
by the Oregon Health Authority, if the defendant is at least 18
years of age, or to the custody of the director of a secure
intensive community inpatient facility designated by the
authority if the defendant is under 18 years of age; or
(b) If the court does not make a finding described in paragraph
(a) of this subsection, or if the court determines that care
other than commitment for incapacity to stand trial would better
serve the defendant and the community, the court shall release
the defendant on supervision for as long as the unfitness
endures.
(3) When a defendant is released on supervision under this
section, the court may place conditions that the court deems
appropriate on the release, including the requirement that the
defendant regularly report to the authority or a community mental
health program for examination to determine if the defendant has
regained capacity to stand trial.
(4) When the court, on its own motion or upon the application
of the superintendent of the hospital or director of the facility
in which the defendant is committed, a person examining the
defendant as a condition of release on supervision, or either
party, determines, after a hearing, if a hearing is requested,
that the defendant has regained fitness to proceed, the criminal
proceeding shall be resumed. If, however, the court is of the
view that so much time has elapsed since the commitment or
release of the defendant on supervision that it would be unjust
to resume the criminal proceeding, the court on motion of either
party may dismiss the charge and may order the defendant to be
discharged or cause a proceeding to be commenced forthwith under
ORS 426.070 to 426.170 or 427.235 to 427.290.
(5) The superintendent of a state hospital or director of a
facility to which the defendant is committed shall cause the
defendant to be evaluated within 60 days from the defendant's
delivery into the superintendent's or director's custody, for the
purpose of determining whether there is a substantial probability
that, in the foreseeable future, the defendant will have the
capacity to stand trial. In addition, the superintendent or
director shall:
(a) Immediately notify the committing court if the defendant,
at any time, gains or regains the capacity to stand trial or will
never have the capacity to stand trial.
(b) Within 90 days of the defendant's delivery into the
superintendent's or director's custody, notify the committing
court that:
(A) The defendant has the present capacity to stand trial;
(B) There is no substantial probability that, in the
foreseeable future, the defendant will gain or regain the
capacity to stand trial; or
(C) There is a substantial probability that, in the foreseeable
future, the defendant will gain or regain the capacity to stand
trial. If the probability exists, the superintendent or director
shall give the court an estimate of the time in which the
defendant, with appropriate treatment, is expected to gain or
regain capacity.
(6)(a) If the superintendent or director determines that there
is a substantial probability that, in the foreseeable future, the
defendant will gain or regain the capacity to stand trial, unless
the court otherwise orders, the defendant shall remain in the
superintendent's or director's custody where the defendant shall
receive treatment designed for the purpose of enabling the
defendant to gain or regain capacity. In keeping with the notice
requirement under subsection (5)(b) of this section, the
superintendent or director shall, for the duration of the
defendant's period of commitment, submit a progress report to the
committing court, concerning the defendant's capacity or
incapacity, at least once every 180 days as measured from the
date of the defendant's delivery into the superintendent's or
director's custody.
(b) Notwithstanding paragraph (a) of this subsection, if the
superintendent or director determines that a defendant committed
under this section is no longer dangerous to self or others as a
result of mental disease or defect, or that the services and
supervision necessary to restore the defendant's fitness to
proceed are available in the community, the superintendent or
director shall file notice of that determination with the court.
Upon receipt of the notice, the court shall order the person
released on supervision as described in subsection (3) of this
section.
(7)(a) A defendant who remains committed under subsection (6)
of this section shall be discharged within a period of time that
is reasonable for making a determination concerning whether or
not, and when, the defendant may gain or regain capacity.
However, regardless of the number of charges with which the
defendant is accused, in no event shall the defendant be
committed for longer than whichever of the following, measured
from the defendant's initial custody date, is shorter:
(A) Three years; or
(B) A period of time equal to the maximum sentence the court
could have imposed if the defendant had been convicted.
(b) For purposes of calculating the maximum period of
commitment described in paragraph (a) of this subsection:
(A) The initial custody date is the date on which the defendant
is first committed under this section on any charge alleged in
the accusatory instrument; and
(B) The defendant shall be given credit against each charge
alleged in the accusatory instrument for each day the defendant
is committed under this section, whether the days are consecutive
or are interrupted by a period of time during which the defendant
has regained fitness to proceed.
(8) The superintendent or director shall notify the committing
court of the defendant's impending discharge 30 days before the
date on which the superintendent or director is required to
discharge the defendant under subsection (7) of this section.
(9) When the committing court receives a notice from the
superintendent or director under subsection (5) or (8) of this
section concerning the defendant's progress or lack thereof, the
committing court shall determine, after a hearing, if a hearing
is requested, whether the defendant presently has the capacity to
stand trial.
(10) If at any time the court determines that the defendant
lacks the capacity to stand trial, the court shall further
determine whether there is a substantial probability that the
defendant, in the foreseeable future, will gain or regain the
capacity to stand trial and whether the defendant is entitled to
discharge under subsection (7) of this section. If the court
determines that there is no substantial probability that the
defendant, in the foreseeable future, will gain or regain the
capacity to stand trial or that the defendant is entitled to
discharge under subsection (7) of this section, the court
shall { + :
(a) + } Dismiss, without prejudice, all charges against the
defendant and:
{ - (a) - } { + (A) + } Order that the defendant be
discharged; or
{ - (b) - } { + (B) + } Initiate commitment proceedings
under ORS 426.070 or 427.235 to 427.290 { + ; or
(b) If petitioned by the district attorney, initiate commitment
proceedings under section 2 of this 2013 Act + }.
(11) All notices required under this section shall be filed
with the clerk of the court and delivered to both the district
attorney and the counsel for the defendant.
(12) If the defendant regains fitness to proceed, the term of
any sentence received by the defendant for conviction of the
crime charged shall be reduced by the amount of time the
defendant was committed under this section to the custody of a
state mental hospital, or to the custody of a secure intensive
community inpatient facility, designated by the Oregon Health
Authority.
(13) Notwithstanding the suspension of the criminal proceeding
under subsection (2) of this section, the fact that the defendant
is unfit to proceed does not preclude any objection through
counsel and without the personal participation of the defendant
on the grounds that the indictment is insufficient, that the
statute of limitations has run, that double jeopardy principles
apply or upon any other ground at the discretion of the court
which the court deems susceptible of fair determination prior to
trial.
SECTION 4. ORS 426.300 is amended to read:
426.300. (1) The Oregon Health Authority shall, by filing a
written certificate with the last committing court and the court
of residence, discharge any patient from court commitment { - ,
except one held upon an order of a court or judge having criminal
jurisdiction in an action or proceeding arising out of criminal
offense when in its opinion - } { + when the authority
determines that:
(a) + } The individual is no longer a mentally ill
person { + ; + } or
{ - when in its opinion - }
{ + (b) + } The transfer of the individual to a voluntary
status is in the best interest of the treatment of the patient.
{ + (2) Subsection (1) of this section does not apply to
persons held upon an order of a court or judge having criminal
jurisdiction in an action or proceeding arising out of criminal
offense. + }
{ - (2) - } { + (3) + } The authority may sign applications
for public assistance on behalf of those patients who may be
eligible for public assistance.
SECTION 5. ORS 3.408 is amended to read:
3.408. (1) The presiding judge of the judicial district may
assign to a family court department established under ORS 3.405
all of the following matters:
(a) Proceedings under the provisions of ORS chapters 107, 108,
109 and 110;
(b) Proceedings under the provisions of ORS chapter 25;
(c) Guardianship proceedings for minors under the provisions of
ORS chapter 125;
(d) Juvenile court proceedings under ORS chapters 419A, 419B
and 419C;
(e) Proceedings to commit a person with a mental illness { +
or with a mental disease or defect, + } under the provisions of
ORS chapter 426;
(f) Probate proceedings under ORS chapters 111, 112, 113, 114,
115, 116 and 117; and
(g) Any other proceeding in which a family is involved.
(2) In addition to the matters specified in subsection (1) of
this section, the presiding judge of the judicial district may
assign to a family court department any criminal proceeding that
involves domestic violence or other crime between family members.
SECTION 6. ORS 426.250, as amended by section 4, chapter 25,
Oregon Laws 2012, is amended to read:
426.250. The following is a nonexclusive list of
responsibilities for payment of various costs related to
commitment proceedings under this chapter as described:
(1) Any physician or qualified person recommended by the Oregon
Health Authority who is employed under ORS 426.110 to make an
examination as to the mental condition of a person alleged to be
mentally ill shall be allowed a fee as the court in its
discretion determines reasonable for the examination.
(2) Witnesses subpoenaed to give testimony shall receive the
same fees as are paid in criminal cases, and are subject to
compulsory attendance in the same manner as provided in ORS
136.567 to 136.603. The attendance of out-of-state witnesses may
be secured in the same manner as provided in ORS 136.623 to
136.637. The party who subpoenas the witness or requests the
court to subpoena the witness is responsible for payment of the
cost of the subpoena and payment for the attendance of the
witness at a hearing. When the witness has been subpoenaed on
behalf of an allegedly mentally ill person who is represented by
appointed counsel, the fees and costs allowed for that witness
shall be paid pursuant to ORS 135.055. If the costs of witnesses
subpoenaed by the allegedly mentally ill person are paid as
provided under this subsection, the procedure for subpoenaing
witnesses shall comply with ORS 136.570.
(3) If a person with a right to a counsel under ORS 426.100
{ + or section 2 of this 2013 Act + } is determined to be
financially eligible for appointed counsel at state expense, the
public defense services executive director shall determine and
pay, as provided in ORS 135.055, the reasonable expenses related
to the representation of the person and compensation for legal
counsel. The expenses and compensation so allowed shall be paid
by the public defense services executive director from funds
available for the purpose.
(4) The authority shall pay the costs of expenses incurred
under ORS 426.100 by the Attorney General's office. Any costs for
district attorneys or other counsel appointed to assume
responsibility for presenting the state's case shall be paid by
the county where the commitment hearing is held, subject to
reimbursement under ORS 426.310.
(5) All costs incurred in connection with a proceeding under
ORS 426.180 { + or section 2 of this 2013 Act + }, including the
costs of transportation, commitment and delivery of the person,
shall be paid by the county of which the person is a resident. If
the person is not a resident of this state, then the costs
incurred in connection with the proceeding shall be paid by the
county from which the emergency admission was made.
(6) All costs incurred in connection with a proceeding under
ORS 426.180 for the commitment of a person from a reservation,
including the cost of transportation, commitment and delivery of
the person, shall be paid by the governing body of the
reservation of which the person is a resident.
SECTION 7. { + This 2013 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2013 Act takes effect on its
passage. + }
----------