S.B. 49

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Senate 2^nd Reading Amendments 2-16-2004 rd/sca This document includes Senate 2^nd Reading Floor Amendments incorporated into the bill on Mon, Feb 16, 2004 at 4:44 PM by rday. --> 1

COMPETENCY TO BE EXECUTED -
2 AMENDMENTS
3 2004 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: David L. Gladwell
6
7 LONG TITLE
8 General Description:
9 This bill establishes procedures regarding addressing issues of incompetency that may
10 arise after a defendant has been sentenced to death.
11 Highlighted Provisions:
12 This bill:
13 . defines elements of incompetency to be executed, which include if the inmate is not
14 aware of the impending execution and if the inmate does not understand that the
15 execution is for committing the crime of murder;
16 . provides a procedure for the Department of Corrections to give notice to the court if
17 an inmate sentenced to death may be incompetent;
18 . provides the procedure for filing a petition requesting an inquiry into the inmate's
19 competency to be executed;
20 . provides the process for an examination of the inmate;
21 . provides for a court hearing and determination;
22 . provides for treatment for the inmate;
22a S . PROVIDES THE SCOPE OF APPROPRIATE MENTAL HEALTH TREATMENT, INCLUDING
22b THE USE OF PSYCHOACTIVE MEDICATION; s
23 . provides that the Department of Corrections and the Department of Human Services
24 pay for the competency examination of the inmate; and
25 . provides that the prosecution may appeal from a finding that an inmate is not
26 competent to be executed.
27 Monies Appropriated in this Bill:

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29 Other Special Clauses:
30 None
31 Utah Code Sections Affected:
32 AMENDS:
33 77-18a-1, as last amended by Chapter 11, Laws of Utah 2003
34 77-19-8, as last amended by Chapter 13, Laws of Utah 1994
35 ENACTS:
36 77-19-201, Utah Code Annotated 1953
37 77-19-203, Utah Code Annotated 1953
38 77-19-204, Utah Code Annotated 1953
39 77-19-205, Utah Code Annotated 1953
40 77-19-206, Utah Code Annotated 1953
41 RENUMBERS AND AMENDS:
42 77-19-202, (Renumbered from 77-19-13, as last amended by Chapter 13, Laws of Utah
43 1994)
44
45 Be it enacted by the Legislature of the state of Utah:
46 Section 1. Section 77-18a-1 is amended to read:
47 77-18a-1. Appeals -- When proper.
48 (1) An appeal may be taken by the defendant from:
49 (a) the final judgment of conviction, whether by verdict or plea;
50 (b) an order made after judgment that affects the substantial rights of the defendant;
51 (c) an interlocutory order when upon petition for review the appellate court decides the
52 appeal would be in the interest of justice; or
53 (d) any order of the court judging the defendant by reason of a mental disease or defect
54 incompetent to proceed further in a pending prosecution.
55 (2) An appeal may be taken by the prosecution from:
56 (a) a final judgment of dismissal, including a dismissal of a felony information
57 following a refusal to bind the defendant over for trial;
58 (b) an order arresting judgment;

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- 3 - 59 (c) an order terminating the prosecution because of a finding of double jeopardy or
60 denial of a speedy trial;
61 (d) a judgment of the court holding a statute or any part of it invalid;
62 (e) an order of the court granting a pretrial motion to suppress evidence when upon a
63 petition for review the appellate court decides that the appeal would be in the interest of justice;
64 (f) under circumstances not amounting to a final order under Subsection (2)(a), a
65 refusal to bind the defendant over for trial on a felony as charged or a pretrial order dismissing
66 or quashing in part a felony information, when upon a petition for review the appellate court
67 decides that the appeal would be in the interest of justice;
68 (g) an order of the court granting a motion to withdraw a plea of guilty or no contest;
69 [or]
70 (h) a finding pursuant to Title 77, Chapter 15a, Exemptions from Death Penalty in
71 Capital Cases, that a capital defendant is exempt from a sentence of death, when upon a
72 petition for review the appellate court decides that the appeal would be in the interest of
73 justice[.]; or
74 (i) a finding pursuant to Title 77, Chapter 19, Part 2, Competency for Execution, that
75 an inmate sentenced to death is incompetent to be executed.
76 Section 2. Section 77-19-8 is amended to read:
77 77-19-8. Judgment of death, when suspended, and by whom.
78 A judge, tribunal, or officer, other than the governor or the Board of Pardons and
79 Parole, may not suspend the execution of a judgment of death, except:
80 (1) a temporary stay of judgment of death may [issue] be issued by a court of
81 competent jurisdiction when the judgment is appealed, automatically reviewed, or subjected to
82 collateral attack in a post conviction proceeding; or
83 (2) in cases of suspected incompetency or pregnancy of the defendant, execution may
84 be temporarily suspended by the executive director of the Department of Corrections or his
85 designee under Section [ 77-19-13 ] 77-19-202 .
86 Section 3. Section 77-19-201 is enacted to read:
87 Part 2. Competency for Execution
88 77-19-201. Definition.
89 As used in this part, "incompetent to be executed" means that if, due to mental

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Senate 2^nd Reading Amendments 2-16-2004 rd/sca 90

condition, an inmate is unaware S OF s either S [ :
91 (1) of the fact of the inmate's impending execution; or
92 (2) that the inmate is to be executed for the murder or murders for which he was
93 sentenced to death. ] THE PUNISHMENT HE IS ABOUT TO SUFFER OR WHY HE IS TO SUFFER IT. s
94 Section 4. Section 77-19-202 , which is renumbered from Section 77-19-13 is
95 renumbered and amended to read:
96 [77-19-13]. 77-19-202. Incompetency or pregnancy of person sentenced to death
97 -- Procedures.
98 (1) If, after judgment of death, [there is] the executive director of the Department of
99 Corrections has good reason to believe [the defendant is incompetent to proceed under this
100 chapter, or] that an inmate sentenced to death is pregnant, or has good reason to believe that an
101 inmate's competency to be executed under this chapter should be addressed by a court, the
102 executive director of the Department of Corrections or his designee shall immediately give
103 written notice to the court in which the judgment of death was rendered, to the prosecuting
104 attorney, and counsel for [defendant] the inmate. The judgment shall be stayed pending further
105 order of the court.
106 (2) (a) On receipt of the notice under Subsection (1) of good reason for the court to
107 address an inmate's competency to be executed, the court shall order that the mental condition
108 of the [defendant] inmate shall be examined under the provisions of [Title 77, Chapter 15]
109 Section 77-19-204 .
110 (b) If the [defendant] inmate is found incompetent, the court shall immediately transmit
111 a certificate of the findings to the Board of Pardons and Parole [and enter an order for
112 commitment under Title 77, Chapter 15] and continue the stay of execution pending further
113 order of the court.
114 (c) If the [defendant] inmate is subsequently found competent at any time, the judge
115 shall immediately transmit a certificate of the findings to the Board of Pardons and Parole, and
116 shall draw and have delivered another warrant under Section 77-19-6 , together with a copy of
117 the certificate of the findings. The warrant shall state an appointed day on which the judgment
118 is to be executed, which may not be fewer than 30 nor more than 60 days from the date of the
119 drawing of the warrant S [ , at an hour determined by the Department of Corrections ] s .
120 (3) (a) If the court finds the [defendant] inmate is pregnant, it shall immediately

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Senate 2^nd Reading Amendments 2-16-2004 rd/sca 121

transmit a certificate of the finding to the Board of Pardons and Parole and to the executive
122 director of the Department of Corrections or his designee, and the court shall issue an order
123 staying the execution of the judgment of death during the pregnancy.
124 (b) When the court determines the [defendant] inmate is no longer pregnant, it shall
125 immediately transmit a certificate of the finding to the Board of Pardons and Parole and draw
126 and have delivered another warrant under Section 77-19-6 , with a copy of the certificate of the
127 finding. The warrant shall state an appointed day on which the judgment is to be executed,
128 which may not be fewer than 30 nor more than 60 days from the date of the drawing of the
129 warrant S [ , at an hour determined by the Department of Corrections ] s .
129a S (4) THE DEPARTMENT OF CORRECTIONS SHALL DETERMINE THE HOUR, WITHIN THE
129b APPOINTED DAY, AT WHICH THE JUDGMENT IS TO BE EXECUTED. s
130 Section 5. Section 77-19-203 is enacted to read:
131 77-19-203. Petition for inquiry as to competency to be executed -- Filing --
132 Contents -- Successive petitions.
133 (1) If an inmate who has been sentenced to death is or becomes incompetent to be
134 executed, a petition under Subsection (2) may be filed in the district court of the county where
135 the inmate is confined.
136 (2) The petition shall:
137 (a) contain a certificate stating that it is filed in good faith and on reasonable grounds to
138 believe the inmate is incompetent to be executed; and
139 (b) contain a specific recital of the facts, observations, and conversations with the
140 inmate that form the basis for the petition.
141 (3) The petition may be based upon knowledge or information and belief and may be
142 filed by the inmate alleged to be incompetent, legal counsel for the inmate, or by an attorney
143 representing the state.
144 (4) Before ruling on a petition filed by an inmate or his counsel alleging that the inmate
145 is incompetent to be executed, the court shall give the state and the Department of Corrections
146 an opportunity to respond to the allegations of incompetency.
147 (5) If a petition is filed after an inmate has previously been found competent under
148 either this chapter or under Title 77, Chapter 15, Inquiry into Sanity of Defendant, no further
149 hearing on competency may be granted unless the successive petition:
150 (a) alleges with specificity a substantial change of circumstances subsequent to the
151 previous determination of competency; and

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- 6 - 152 (b) is sufficient to raise a significant question about the inmate's competency to be
153 executed.
154 Section 6. Section 77-19-204 is enacted to read:
155 77-19-204. Order for hearing -- Examinations of inmate -- Scope of examination
156 and report.
157 (1) When a court has good reason to believe an inmate sentenced to death is
158 incompetent to be executed, it shall stay the execution and shall order the Department of
159 Human Services to examine the inmate and report to the court concerning the inmate's mental
160 condition.
161 (2) (a) The inmate subject to examination under Subsection (1) shall be examined by at
162 least two mental health experts who are not involved in the inmate's current treatment.
163 (b) The Department of Corrections shall provide information and materials to the
164 examiners relevant to a determination of the inmate's competency to be executed.
165 (3) The inmate shall make himself available and fully cooperate in the examination by
166 the Department of Human Services and any other independent examiners for the defense or the
167 state.
168 (4) The examiners shall in the conduct of their examinations and in their reports to the
169 court consider and address, in addition to any other factors determined to be relevant by the
170 examiners:
171 (a) the inmate's awareness of the fact of the inmate's impending execution;
172 (b) the inmate's understanding that the inmate is to be executed for the crime of
173 murder;
174 (c) the nature of the inmate's mental disorder, if any, and its relationship to the factors
175 relevant to the inmate's competency; and
176 (d) whether psychoactive medication is necessary to maintain or restore the inmate's
177 competency.
178 (5) The examiners who are examining the inmate shall each provide an initial report to
179 the court and the attorneys for the state and the inmate within 60 days of the receipt of the
180 court's order. The report shall inform the court of the examiner's opinion concerning the
181 competency of the inmate to be executed, or, in the alternative, the examiner may inform the
182 court in writing that additional time is needed to complete the report. If the examiner informs

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184 provide the report to the court and counsel. The examiner shall provide the report within 90
185 days from the receipt of the court's order unless, for good cause shown, the court authorizes an
186 additional period of time to complete the examination and provide the report.
187 (6) (a) All interviews with the inmate conducted by the examiners shall be videotaped,
188 unless otherwise ordered by the court for good cause shown. The Department of Corrections
189 shall provide the videotaping equipment and facilitate the videotaping of the interviews.
190 (b) Immediately following the videotaping, the videotape shall be provided to the
191 attorney for the state, who shall deliver it as soon as practicable to the judge in whose court the
192 competency determination is pending.
193 (c) The court shall grant counsel for the state and for the inmate, and examiners who
194 are examining the inmate under this part access to view the videotape at the court building
195 where the court is located that is conducting the competency determination under this part.
196 (7) Any written report submitted by an examiner shall:
197 (a) identify the specific matters referred for evaluation;
198 (b) describe the procedures, techniques, and tests used in the examination and the
199 purpose or purposes for each;
200 (c) state the examiner's clinical observations, findings, and opinions on each issue
201 referred for examination by the court, and indicate specifically those issues, if any, on which
202 the examiner could not give an opinion; and
203 (d) identify the sources of information used by the examiner and present the basis for
204 the examiner's clinical findings and opinions.
205 (8) (a) When the reports are received, the court shall set a date for a competency
206 hearing, which shall be held within not less than five and not more than 15 days, unless the
207 court extends the time for good cause.
208 (b) Any examiner directed by the Department of Human Services to conduct the
209 examination may be subpoenaed to provide testimony at the hearing. If the examiners are in
210 conflict as to the competency of the inmate, all of them should be called to testify at the hearing
211 if they are reasonably available.
212 (c) The court may call any examiner to testify at the hearing who is not called by the
213 parties. An examiner called by the court may be cross-examined by counsel for the parties.

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(9) (a) An inmate shall be presumed competent to be executed unless the court, by a
215 preponderance of the evidence, finds the inmate incompetent to be executed. The burden of
216 proof is upon the proponent of incompetency at the hearing.
217 (b) An adjudication of incompetency to be executed does not operate as an
218 adjudication of the inmate's incompetency to give informed consent for medical treatment or
219 for any other purpose, unless specifically set forth in the court order.
220 (10) (a) If the court finds the inmate incompetent to be executed, its order shall contain
221 findings addressing each of the factors in Subsections (4)(a) through (d).
222 (b) The order finding the inmate incompetent to be executed shall be delivered to the
223 Department of Human Services, and shall be accompanied by:
224 (i) copies of the reports of the examiners filed with the court pursuant to the order of
225 examination, if not provided previously;
226 (ii) copies of any of the psychiatric, psychological, or social work reports submitted to
227 the court relative to the mental condition of the inmate; and
228 (iii) any other documents made available to the court by either the defense or the state,
229 pertaining to the inmate's current or past mental condition.
230 (c) A copy of the order finding the inmate incompetent to be executed shall be
231 delivered to the Department of Corrections.
232 Section 7. Section 77-19-205 is enacted to read:
233 77-19-205. Procedures on finding of incompetency to be executed -- Subsequent
234 hearings -- Notice to attorneys.
235 (1) (a) S (i) s If after the hearing under Section 77-19-204 the inmate is found to be
236 incompetent to be executed, the court shall continue the stay of execution and the inmate shall
237 receive appropriate mental health treatment.
237a S (ii) APPROPRIATE MENTAL HEALTH TREATMENT UNDER SUBSECTION (1)(a)(i) DOES NOT
237b INCLUDE THE FORCIBLE ADMINISTRATION OF PSYCHOACTIVE MEDICATION FOR THE SOLE
237c PURPOSE OF RESTORING THE INMATE'S COMPETENCY TO BE EXECUTED. s
238 (b) The court shall order the executive director of the Department of Human Services
239 to provide periodic assessments to the court regarding the inmate's competency to be executed.
240 (c) The inmate shall be held in secure confinement, either at the prison or the State
241 Hospital, as agreed upon by the executive director of the Department of Corrections and the
242 executive director of the Department of Human Services. If the inmate remains at the prison,
243 the Department of Human Services shall consult with the Department of Corrections regarding
244 the inmate's mental health treatment.

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(2) (a) The examiner or examiners designated by the executive director of the
246 Department of Human Services to assess the inmate's progress toward competency may not be
247 involved in the routine treatment of the inmate.
248 (b) The examiner or examiners shall each provide a full report to the court and counsel
249 for the state and the inmate within 90 days of receipt of the court's order. If any examiner is
250 unable to complete the assessment within 90 days, that examiner shall provide to the court and
251 counsel for the state and the inmate a summary progress report which informs the court that
252 additional time is necessary to complete the assessment, in which case the examiner has up to
253 an additional 90 days to provide the full report, unless the court enlarges the time for good
254 cause. The full report shall assess:
255 (i) the facility's or program's capacity to provide appropriate treatment for the inmate;
256 (ii) the nature of treatments provided to the inmate;
257 (iii) what progress toward restoration of competency has been made;
258 (iv) the inmate's current level of mental disorder and need for treatment, if any; and
259 (v) the likelihood of restoration of competency and the amount of time estimated to
260 achieve it.
261 (3) The court on its own motion or upon motion by either party may order the
262 Department of Human Services to appoint additional mental health examiners to examine the
263 inmate and advise the court on the inmate's current mental status and progress toward
264 competency restoration.
265 (4) (a) Upon receipt of the full report, the court shall hold a hearing to determine the
266 inmate's current status. At the hearing, the burden of proving that the inmate is competent is on
267 the proponent of competency.
268 (b) Following the hearing, the court shall determine by a preponderance of evidence
269 whether the inmate is competent to be executed.
270 (5) (a) If the court determines that the inmate is competent to be executed, it shall enter
271 findings and shall proceed under Subsection 77-19-202 (2)(c).
272 (b) S (i) s If the court determines the inmate is still incompetent to be executed, the inmate
273 shall continue to receive appropriate mental health treatment, and the court shall hold hearings
274 no less frequently than at 18-month intervals for the purpose of determining the defendant's
275 competency to be executed.
275a S (ii) CONTINUED APPROPRIATE MENTAL HEALTH TREATMENT UNDER SUBSECTION (1)(a)(i)
275b DOES NOT INCLUDE THE FORCIBLE ADMINISTRATION OF PSYCHOACTIVE MEDICATION FOR THE
275c SOLE PURPOSE OF RESTORING THE INMATE'S COMPETENCY TO BE EXECUTED. s

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- 10 - 276 (6) (a) If at any time the clinical director of the Utah State Hospital or the primary
277 treating mental health professional determines that the inmate has been restored to competency,
278 he shall notify the court.
279 (b) The court shall conduct a hearing regarding the inmate's competency to be executed
280 within 30 working days of the receipt of the notification under Subsection (6)(a), unless the
281 court extends the time for good cause. The court may order a hearing or rehearing at any time
282 on its own motion.
283 (7) Notice of a hearing on competency to be executed shall be given to counsel for the
284 state and for the inmate, as well as to the office of the prosecutor who prosecuted the inmate on
285 the original capital charge.
286 Section 8. Section 77-19-206 is enacted to read:
287 77-19-206. Expenses -- Allocation.
288 The Department of Human Services and the Department of Corrections shall each pay
289 1/2 of the costs of any examination of the inmate conducted pursuant to Sections 77-19-204
290 and 77-19-205 to determine if an inmate is competent to be executed.

Legislative Review Note
as of 1-27-04 11:00 AM

A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel