ARIZONA HOUSE OF REPRESENTATIVES Fifty-fourth Legislature Second Regular Session JUD DPA 6-4-0-0-0-0

HB 2735: guilty except insane; court jurisdiction

Sponsor:   Representative Barto, LD 15

Committee on Judiciary

Overview

Grants the Superior Court exclusive supervisory jurisdiction over all persons who are under the supervision of the Psychiatric Security Review Board (PSRB) and transfers powers and duties of PSRB to the Superior Court.  

History

The Superior Court (Court) has original concurrent jurisdiction as conferred by the Constitution, rule or statute and concurrent jurisdiction with Justices of the Peace for misdemeanors where the penalty does not exceed a fine of $2500 or imprisonment for six months. The court, and judges have all powers and may issue all writs necessary to the complete exercise of its jurisdiction. (A.R.S.     12-122 and 12-123)

The PSRB was established in 1994 to maintain jurisdiction over persons the Superior Court of Arizona has found guilty except insane (GEI) who have caused or threatened to cause death or serious physical injury to another individual. Current law requires GEI individuals to be placed under the PSRB   s jurisdiction for the length of their presumptive sentence and to be committed to the Arizona State Hospital (ASH), which is operated by the Arizona Department of Health Services (DHS). Statute authorizes the PSRB to release any GEI person under its jurisdiction from ASH to the community if the person meets statutory release criteria (A.R.S.   13-502).

In December 2018, the Arizona Auditor General issued a Performance Audit and Sunset Review, Report 18-107, on PSRB. According to the report, the PSRB had 120 GEI persons under its jurisdiction, with 100 residing in ASH, 19 residing in the community, and 1 transferred to the Arizona Department of Corrections (ADC). PSRB is scheduled to sunset on July 1, 2020 (A.R.S.   41-3020.11)

Provisions

1.       Clarifies that the public defender on order of the court must defend, advise and counsel all mental health hearings regarding release recommendations held before the Court pursuant to requirements outlined in statute. (Sec. 1)

2.       States unless a public employee intended to cause injury or was grossly negligent, the employee is not liable for a release under the supervisory jurisdiction of the court. (Sec.2)

3.       Clarifies that if the defendant had not been found insane the judge must suspend the sentence and must order the defendant to be placed and remain under the supervisory jurisdiction of the Court. (Sec. 3)

4.       Transfers and renumbers A.R.S.     13-3991 and 13-3992 for placement in Title 13, Chapter 41 as A.R.S.     13-4519 and 13-4520. (Sec. 5)

5.       Defines terms. (Sec. 6)

Commitment hearing in superior court; jurisdiction; census data collection

6.       States a person who is found GEI must be committed to a secure mental health facility (SMHF) for a period of treatment. (Sec. 6)

7.       States if the person's act did not cause the death or serious physical injury of or the threat of death or serious physical injury to another person, the court must set a hearing within 75 days after the person's commitment to determine if the person is entitled to release from confinement or if the person meets the standards for civil commitment. (Sec. 6)

8.       Requires the Court to notify the parties of the date of the hearing. (Sec. 6)

9.       Stipulates that 14 days before the hearing, the medical director of the SMHF must submit a mental health report (MHR) to the court and the remaining parties addressing whether the person meets the standard for and should be subject to involuntary hospitalization. (Sec. 6)

10.   States that a hearing held, pursuant to the above-mentioned provisions must do the following:

a)       If the person proves by clear and convincing evidence that the person no longer has a mental disorder or the person still has a mental disorder and is not dangerous, the Court must order the person's release and the person's commitment ordered must terminate; and

b)       If the Court finds that the person still has a mental disorder any may present a threat of danger to self or others, has a grave, persistent or acute disability or has a propensity to re-offend, it must order the county attorney to institute civil commitment proceedings and the person's commitment ordered must terminate. (Sec. 6)

11.   States if the court finds that the person's act caused the death of or serious physical injury to or the threat of death or serious physical injury to another person, the Court must retain supervisory jurisdiction over the person for the entirety of the commitment term. (Sec. 6)

12.   Requires the Court to state the beginning date, length and ending date of the commitment term and the Court's supervisory jurisdiction over the person. (Sec. 6)

13.   States the length of the Court's supervisory jurisdiction over the person is equal to the sentence the person could have received or the presumptive sentence the person could have received. (Sec. 6)

14.   Stipulates that in making the determination, the Court may not consider the sentence enhancements for prior convictions. (Sec. 6)

15.   States that if a person is found GEI, the Department of Health Services (DHS) must assume custody of the person within 10 days after receiving the order committing the person. (Sec. 6)

16.   Requires the Arizona State Hospital (ASH) to collect census data for guilty except insane treatment programs to establish maximum capacity and the allocation formula pursuant to clinical assessment requirements. (Sec. 6)

17.   States if ASH reaches its maximum funded capacity for forensic programs, DHS services may defer the admission of the person found GEI for up to an additional 20 days. (Sec. 6)

18.   Requires DHS to reimburse the county for the actual costs of each day the admission is deferred. (Sec. 6)

19.   Stipulates if DHS is not able to admit the person found guilty except insane at the conclusion of the 20-day deferral period, DHS must notify the sentencing Court, prosecutor and defense counsel of this fact. (Sec. 6)

20.   Stipulates that on receipt of this notification, the prosecutor or the person's defense counsel may request a hearing to determine the likely length of time admission will continue to be deferred and whether any other action should be taken. (Sec. 6)

21.   Directs the Court to set a hearing within 10 days upon receipt of the request for hearing.           (Sec. 6)

22.   Requires the state and the defendant to provide the SMHF with a copy of the Court's commitment order and all documents considered by the Court or admitted into evidence, including all medical and MHR's. (Sec. 6)

Examination of defendant pleading guilty except insane; privilege inapplicability; sealed reports

23.   Deletes and rewrites A.R.S.   13-3993(a) as:

a)       On request of the court or any party, with the consent of the defendant and after a determination that a reasonable basis exists to support the GEI defense, the Court must appoint a qualified expert to evaluate the defendant and provide a written report that includes:

i.           The mental status of the defendant at the time of the alleged offense; and

ii.         The relationship of the mental disorder to the alleged offense, if the expert determines that the defendant suffered from a mental disorder at the time of the alleged offense. (Sec. 7)

24.   Directs the parties to provide all available medical, mental health and criminal history records to the qualified expert within 10 days after the appointment. (Sec. 7)

25.   Stipulates that on notice of the court the qualified expert may request additional records from the parties. (Sec. 7)

26.   Directs the defense attorney to nominate its own qualified expert to examine the defendant to determine the defendant's mental status at the time of the alleged offense if the defendant provides a notice of a GEI defense. (Sec. 7)

27.   Allows the state to call the same number of medical doctors and licensed psychologists who will testify on behalf of the defense. (Sec. 7)

28.   States that after a plea of guilty or after disposition of a matter where the defendant has pled GEI, the Court must order all reports to be sealed. (Sec. 7)

29.   States the Court may order that the reports be open only as follows:

a)       For use by the Court or defendant, or by the prosecutor if otherwise allowed by law, for further competency or sanity evaluations or in a hearing to determine whether the defendant is eligible for court-ordered treatment or is a sexually violent person;

b)       For statistical analysis;

c)       When the records are deemed necessary to assist in mental health treatment;

d)       For use by the probation department or the State Department of Corrections (ADC) if the defendant is in the custody of or is scheduled to be transferred into the custody of ADC to assess and supervise or monitor the defendant by that department;

e)       For use by a mental health treatment provider that provides treatment to the defendant or that assesses the defendant for treatment;

f)         For data gathering; or

g)       For scientific study. (Sec. 7)

30.   Mandates that any statement made by the defendant during an examination that is conducted or any evidence resulting from that statement is not subject to disclosure. (Sec. 7)

Persons under supervisory jurisdiction; hearing; mental health report; risk assessment; conditional release; board notices and decisions

31.   Deletes and rewrites the following sections in A.R.S.   13-3994 as:

a)       A person who is placed under supervisory jurisdiction of the Court is not eligible for discharge from supervisory jurisdiction until the date set by the committing court;

b)       The SMHF, outpatient treatment supervisor and person under the supervisory jurisdiction of the Court can request a hearing;

c)        Unless otherwise ordered by the court, the person must attend any hearing by video teleconference from the SMHF;

d)        If the Court finds that a person no longer needs ongoing treatment for a mental disorder, is not dangerous and does not have a propensity to re-offend, the Court must place the person on supervised probation for the remainder of the imposed commitment term;

e)       All time spent under the Court's supervisory jurisdiction and any time spent incarcerated must be credited against any sentence imposed;

f)         At the time of sentencing or placement on probation, the Court must notify the person in writing of the person's appeal rights under Rule 31, Arizona Criminal Procedure;

g)       A person who is conditionally released is subject to all of the following:

i.           The Court in conjunction with the SMHF and supervisors from behavioral health community providers must agree on and specify the conditions of the person's release and the SMHF must monitor the release;

ii.         Before the person is conditionally released, a supervised treatment plan must be in place;

iii.       The Court may implement the person's conditional release in incremental steps beginning with supervised passes into the community for increasing lengths of time, continuing through independent passes and ending with release to live in the community;

iv.     Before implementing each stage of conditional release, the Court must find by clear and convincing evidence that the community will be protected, and the person will be safe under the proposed supervised treatment plan;

v.          If approved by the Court, pass supervisors may include members of the inpatient or outpatient treatment team, other mental health treatment providers or other responsible persons who are willing to ensure that the person abides by the conditional release terms; and

vi.     The SMHF must implement the Court's conditional release order or provide the Court and the parties with the reasons why the SMHF did not implement the order;

h)       At any hearing release or conditional release, the party or treatment supervisor who is seeking a change in privileges or a change in hospitalization has the burden of proof by clear and convincing evidence;

i)           Unless otherwise provided or on a showing of sufficient cause, a party must submit a request for a hearing and include the reasons for the request;

j)           The Court must rule on the request within 14 days after the request if filed, if a hearing is granted the hearing must be set on the Court's calendar within 30 days;