ARIZONA STATE SENATE
Fifty-Fifth Legislature, First Regular Session
dangerous; incompetent person; evaluation; commitment
Purpose
Establishes procedures regarding the commitment, detainment, conditional release and discharge of a defendant deemed incompetent, non-restorable and dangerous. Outlines requirements for the treatment of a committed defendant.
Background
Statute allows any party, if the court finds that a defendant is incompetent to stand trial and that there is no substantial probability that the defendant will regain competency within 21 months after the date of the original finding of incompetency, to request that the court: 1) remand the defendant to an evaluating agency for the institution of civil commitment proceedings; 2) appoint a guardian; or 3) release the defendant from custody and dismiss the charges against the defendant without prejudice. If the defendant is remanded, the prosecutor is required to file a petition for evaluation and provide any known criminal history of the defendant (A.R.S. 13-4517).
Statute defines incompetent to stand trial as a defendant, as a result of a mental illness, defect or disability, being unable to understand the nature and object of the proceeding or unable to assist in the defendant's defense. Incompetent to stand trial is also defined as, in the case of a person under 18 years old, a person who does not have sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding or who does not have a rational and factual understanding of the proceedings against the person (A.R.S. 13-4501).
According to a Joint Legislative Budget Committee (JLBC) fiscal note, the fiscal impact of this legislation cannot be determined with certainty, as the JLBC does not know how often the courts would commit dangerous defendants to the Arizona State Hospital (ASH). The Department of Health Services (DHS) estimates that its ongoing annual costs would increase by between $95 million and $115 million. The JLBC estimates under one possible scenario that costs could be significantly lower at approximately $5.7 million in FY 2021, gradually increasing to $21.5 million in FY 2025. Additionally, DHS estimates the cost of construction for new facilities to provide these services would be approximately $137.5 million. The JLBC expects that additional facilities may be needed to meet the requirements of the legislation beginning in FY 2022. Furthermore, the bill may increase costs to the courts to meet requirements for conducting proceedings for dangerous and incompetent defendants. However, the impact cannot be determined in advance (JLBC Fiscal Note).
Provisions
Trial for Involuntary Commitment
1. Allows any party to request that the court order a trial by jury to determine if a defendant is dangerous and should be involuntarily committed if:
a) the court finds that the defendant is incompetent to stand trial;
b) the court finds that that there is no substantial probability that the defendant will regain competency within 21 months after the date of the original finding of incompetency; and
c) the defendant is charged with a serious offense.
2. Allows the court, if a defendant is charged with a serious offense, to order the county sheriff to take the defendant into custody so that the court may explore options to appoint the defendant a guardian, dismiss the charge against the defendant without prejudice or order a trial by jury to determine whether the defendant is dangerous and should be involuntarily committed if the court:
a) remands the defendant for the institution of civil commitment proceedings and is notified that the defendant has not had a civil commitment evaluation or enters an order for a trial to determine if the defendant is dangerous; or
b) is notified that the defendant has not been ordered into treatment and the court has retained jurisdiction.
3. Requires the court to hold a trial by jury to determine if a defendant is dangerous and should be involuntarily committed upon entering an order to hold such a trial.
4. Allows the court, if a trial to determine if a defendant is dangerous and should be involuntarily committed is ordered, to also order an assessment of the defendant's eligibility for private insurance or public benefits that may be applied to the expenses of the defendant's medically necessary maintenance and treatment.
5. Requires the court to appoint an attorney as soon as possible and before setting the dangerousness trial to represent an unrepresented indigent defendant at the trial and any further proceedings regarding dangerous and incompetent persons.
6. Requires, if there has not been a previous evaluation to determine whether a defendant is dangerous, the defendant to be examined by mental health experts to make such a determination.
7. Allows a defendant to retain the defendant's own mental health expert who may examine the defendant and present the defendant's own mental health evaluation at a dangerousness trial.
8. Requires a competency evaluation report to include:
a) a description of the nature of any instrument or tool used to assess whether the defendant is likely to be dangerous;
b) if the defendant is deemed incompetent to stand trial, the nature of the mental illness, disease or defect that makes the defendant likely to be dangerous; and
c) if the prognosis determines the defendant is incompetent to stand trial and that there is no substantial probability that the defendant will regain competency within 21 months after the date of the original finding of incompetency, whether the defendant should be considered dangerous.
9. Allows a court to open a sealed competency examination report submitted for a trial or plea negotiation in a trial to determine whether the defendant is dangerous and eligible for involuntary commitment.
10. Requires the state at trial to prove beyond a reasonable doubt that:
a) the defendant is dangerous; and
b) the defendant committed the acts that constitute the charged offense.
11. Requires the court, if a jury does not find that a defendant is dangerous, to:
a) remand the defendant to an evaluating agency for the institution of civil commitment proceedings;
b) appoint a guardian; or
c) release the defendant from custody and dismiss the charges against the defendant without prejudice.
12. Requires the court, if the jury finds that the defendant is dangerous, to order the defendant to be committed to a secure state mental health facility licensed by DHS or the Joint Commission on Accreditation of Healthcare Organizations.
13. Requires a defendant deemed dangerous to receive education, care, supervision and treatment to render the defendant competent or non-dangerous.
14. Requires, if the court issues a commitment order for a dangerous or incompetent defendant:
a) all further proceedings for the defendant's continued treatment and the circumstances under which the defendant may be released to be conducted pursuant to statute regarding dangerous and incompetent persons; and
b) the order to require that the defendant remain committed to the custody of the secure state mental health facility until the court finds that the defendant is competent to stand trial or is no longer dangerous.
15. Allows the court to retain jurisdiction over a dangerous defendant until the defendant is involuntarily committed.
16. Stipulates that the court has continuing jurisdiction over a person committed following a trial regarding dangerous and incompetent persons.
17. Requires the court to retain jurisdiction over a defendant who is committed following a trial to determine if the defendant is dangerous until the court discharges the defendant from treatment or the time to commence a charge has expired, whichever occurs first.
18. Allows the medical supervisor of a defendant to file a petition stating that the defendant requires involuntary commitment because the defendant is dangerous if the defendant is discharged or released on the expiration of an order or orders for the defendant to undergo out of custody competency restoration treatment or continued competency restoration treatment.
19. Stipulates that, for the purpose of calculating time that has passed since a committed person was charged to determine when the time to commence a charge expires, no time is tolled.
20. Requires, if a defendant is involuntarily committed because the defendant is deemed dangerous and incompetent, the Director of DHS (Director) to determine the extent to which the defendant is receiving or is eligible to receive private or public benefits that may be applied to the expenses of the defendant's maintenance and treatment that are medically necessary, including federal and state Medicaid, Arizona Health Care Cost Containment System monies and regional behavioral health care monies.
21. Allows DHS to accept private or public benefit monies without a court order.
22. Deems DHS responsible for all remaining costs associated with the involuntary commitment of a dangerous and incompetent defendant.
23. Stipulates that findings made by the court while determining if a defendant is dangerous and incompetent to stand trial are only admissible in proceedings commenced under statute regarding dangerous and incompetent persons.
24. Requires that, if a previously dangerous and incompetent person is found competent to stand trial after an involuntary commitment, the person receive credit for all time that the person spent under the jurisdiction of the secure state mental health facility against a term of imprisonment for any of the charges that were the basis of the involuntary commitment.
Biannual Examination of Committed Persons
25. Requires the psychologist, psychiatrist or other competent professional of ASH or a licensed facility that ASH supervises to:
a) biannually examine each person committed as a dangerous and incompetent defendant; and
b) submit the examination report (report) to the court, the committed defendant and any attorney of record for the committed defendant's commitment.
26. Requires the report to state:
a) the treatment and education that the committed defendant has received;
b) a prognosis for the committed defendant's restoration to competency; and
c) whether the committed defendant remains dangerous.
27. Requires the report, if the psychiatrist, psychologist or other competent professional submits a report that the committed defendant is no longer dangerous in whole or in part because of medication, to state whether the committed defendant will continue to take that medication if released to a less restrictive alternative (LRA) and would comply with all other conditions of an LRA.
28. Requires the court to hold a hearing to determine whether the committed defendant is competent or is no longer dangerous within 45 days of receiving a report that indicates that the committed defendant:
a) is competent to stand trial; or
b) is no longer dangerous.
29. Allows the court to continue a hearing to determine if a committed defendant is competent to stand trial or no longer dangerous:
a) on the request of either party and a showing of good cause; or
b) on its own motion if the committed defendant will not be substantially prejudiced.
30. Assigns the attorney for the state the burden to prove by clear and convincing evidence that:
a) the committed defendant's mental illness, defect or disability has not changed and that the committed defendant remains dangerous; or
b) the committed defendant is competent to stand trial.
31. Requires a retained or appointed competent professional to have access to all records concerning the committed defendant.
32. Requires all competent professionals to have equal access to the committed defendant and records concerning the committed defendant.
33. Requires the court to notify the attorney for the state and the committed defendant if the defendant's attorney withdraws from representation any time during the defendant's commitment and either allow the defendant sufficient time to employ another attorney or, if the defendant is indigent, appoint an attorney to represent the defendant.
34. Stipulates that a committed defendant is not precluded from petitioning the court for conditional release to an LRA or discharge from treatment.
Petition for Conditional Release to an LRA
35. Requires the Superintendent of ASH (Superintendent) or the Director to allow a committed defendant to petition the court for conditional release to an LRA if the Superintendent or Director determines that the committed defendant's mental illness, defect or disability has changed and the defendant is no longer dangerous if conditionally released to an LRA.
36. Requires the committed defendant to serve a petition for conditional release on the court and the attorney for the state.
37. Requires the court to hold a hearing on a petition for conditional release within 45 days of receiving the petition.
38. Allows the court to continue a hearing on a petition for conditional release on the request of either party and a showing of good cause or on its own motion if the committed defendant will not be substantially prejudiced.
39. Requires the attorney for the state to prove by clear and convincing evidence that:
a) the committed defendant's mental illness, defect or disability has not changed; and