S.B. 49 Enrolled

COMPETENCY TO BE EXECUTED -
AMENDMENTS
2004 GENERAL SESSION
STATE OF UTAH
Sponsor: David L. Gladwell

LONG TITLE
General Description:
This bill establishes procedures regarding addressing issues of incompetency that may
arise after a defendant has been sentenced to death.
Highlighted Provisions:
This bill:
. defines elements of incompetency to be executed, which include if the inmate is not
aware of the punishment he is about to suffer or why he is to suffer it;
. provides a procedure for the Department of Corrections to give notice to the court if
an inmate sentenced to death may be incompetent;
. provides the procedure for filing a petition requesting an inquiry into the inmate's
competency to be executed;
. provides the process for an examination of the inmate;
. provides for a court hearing and determination;
. provides for treatment for the inmate;
. provides the scope of appropriate mental health treatment, including the use of
psychoactive medication;
. provides that the Department of Corrections and the Department of Human Services
pay for the competency examination of the inmate; and
. provides that the prosecution may appeal from a finding that an inmate is not
competent to be executed.
Monies Appropriated in this Bill:
None

Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
77-18a-1, as last amended by Chapter 11, Laws of Utah 2003
77-19-8, as last amended by Chapter 13, Laws of Utah 1994
ENACTS:
77-19-201, Utah Code Annotated 1953
77-19-203, Utah Code Annotated 1953
77-19-204, Utah Code Annotated 1953
77-19-205, Utah Code Annotated 1953
77-19-206, Utah Code Annotated 1953
RENUMBERS AND AMENDS:
77-19-202, (Renumbered from 77-19-13, as last amended by Chapter 13, Laws of Utah
1994)

Be it enacted by the Legislature of the state of Utah:
Section 1. Section 77-18a-1 is amended to read:
77-18a-1. Appeals -- When proper.
(1) An appeal may be taken by the defendant from:
(a) the final judgment of conviction, whether by verdict or plea;
(b) an order made after judgment that affects the substantial rights of the defendant;
(c) an interlocutory order when upon petition for review the appellate court decides the
appeal would be in the interest of justice; or
(d) any order of the court judging the defendant by reason of a mental disease or defect
incompetent to proceed further in a pending prosecution.
(2) An appeal may be taken by the prosecution from:
(a) a final judgment of dismissal, including a dismissal of a felony information following a

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refusal to bind the defendant over for trial;
(b) an order arresting judgment;
(c) an order terminating the prosecution because of a finding of double jeopardy or denial
of a speedy trial;
(d) a judgment of the court holding a statute or any part of it invalid;
(e) an order of the court granting a pretrial motion to suppress evidence when upon a
petition for review the appellate court decides that the appeal would be in the interest of justice;
(f) under circumstances not amounting to a final order under Subsection (2)(a), a refusal
to bind the defendant over for trial on a felony as charged or a pretrial order dismissing or
quashing in part a felony information, when upon a petition for review the appellate court decides
that the appeal would be in the interest of justice;
(g) an order of the court granting a motion to withdraw a plea of guilty or no contest;
[or]
(h) a finding pursuant to Title 77, Chapter 15a, Exemptions from Death Penalty in Capital
Cases, that a capital defendant is exempt from a sentence of death, when upon a petition for
review the appellate court decides that the appeal would be in the interest of justice[.]; or
(i) a finding pursuant to Title 77, Chapter 19, Part 2, Competency for Execution, that an
inmate sentenced to death is incompetent to be executed.
Section 2. Section 77-19-8 is amended to read:
77-19-8. Judgment of death, when suspended, and by whom.
A judge, tribunal, or officer, other than the governor or the Board of Pardons and Parole,
may not suspend the execution of a judgment of death, except:
(1) a temporary stay of judgment of death may [issue] be issued by a court of competent
jurisdiction when the judgment is appealed, automatically reviewed, or subjected to collateral
attack in a post conviction proceeding; or
(2) in cases of suspected incompetency or pregnancy of the defendant, execution may be
temporarily suspended by the executive director of the Department of Corrections or his designee
under Section [ 77-19-13 ] 77-19-202 .

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Section 3. Section 77-19-201 is enacted to read:
Part 2. Competency for Execution
77-19-201. Definition.
As used in this part, "incompetent to be executed" means that if, due to mental condition,
an inmate is unaware of either the punishment he is about to suffer or why he is to suffer it.
Section 4. Section 77-19-202 , which is renumbered from Section 77-19-13 is renumbered
and amended to read:
[77-19-13]. 77-19-202. Incompetency or pregnancy of person sentenced to death
-- Procedures.
(1) If, after judgment of death, [there is] the executive director of the Department of
Corrections has good reason to believe [the defendant is incompetent to proceed under this
chapter, or] that an inmate sentenced to death is pregnant, or has good reason to believe that an
inmate's competency to be executed under this chapter should be addressed by a court, the
executive director of the Department of Corrections or his designee shall immediately give written
notice to the court in which the judgment of death was rendered, to the prosecuting attorney, and
counsel for [defendant] the inmate. The judgment shall be stayed pending further order of the
court.
(2) (a) On receipt of the notice under Subsection (1) of good reason for the court to
address an inmate's competency to be executed, the court shall order that the mental condition of
the [defendant] inmate shall be examined under the provisions of [Title 77, Chapter 15] Section
77-19-204 .
(b) If the [defendant] inmate is found incompetent, the court shall immediately transmit a
certificate of the findings to the Board of Pardons and Parole [and enter an order for commitment
under Title 77, Chapter 15] and continue the stay of execution pending further order of the court.
(c) If the [defendant] inmate is subsequently found competent at any time, the judge shall
immediately transmit a certificate of the findings to the Board of Pardons and Parole, and shall
draw and have delivered another warrant under Section 77-19-6 , together with a copy of the
certificate of the findings. The warrant shall state an appointed day on which the judgment is to

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be executed, which may not be fewer than 30 nor more than 60 days from the date of the drawing
of the warrant[, at an hour determined by the Department of Corrections].
(3) (a) If the court finds the [defendant] inmate is pregnant, it shall immediately transmit a
certificate of the finding to the Board of Pardons and Parole and to the executive director of the
Department of Corrections or his designee, and the court shall issue an order staying the
execution of the judgment of death during the pregnancy.
(b) When the court determines the [defendant] inmate is no longer pregnant, it shall
immediately transmit a certificate of the finding to the Board of Pardons and Parole and draw and
have delivered another warrant under Section 77-19-6 , with a copy of the certificate of the
finding. The warrant shall state an appointed day on which the judgment is to be executed, which
may not be fewer than 30 nor more than 60 days from the date of the drawing of the warrant.
(4) The Department of Corrections shall determine the hour, within the appointed day, at
which the judgment is to be executed.
Section 5. Section 77-19-203 is enacted to read:
77-19-203. Petition for inquiry as to competency to be executed -- Filing -- Contents
-- Successive petitions.
(1) If an inmate who has been sentenced to death is or becomes incompetent to be
executed, a petition under Subsection (2) may be filed in the district court of the county where the
inmate is confined.
(2) The petition shall:
(a) contain a certificate stating that it is filed in good faith and on reasonable grounds to
believe the inmate is incompetent to be executed; and
(b) contain a specific recital of the facts, observations, and conversations with the inmate
that form the basis for the petition.
(3) The petition may be based upon knowledge or information and belief and may be filed
by the inmate alleged to be incompetent, legal counsel for the inmate, or by an attorney
representing the state.
(4) Before ruling on a petition filed by an inmate or his counsel alleging that the inmate is

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incompetent to be executed, the court shall give the state and the Department of Corrections an
opportunity to respond to the allegations of incompetency.
(5) If a petition is filed after an inmate has previously been found competent under either
this chapter or under Title 77, Chapter 15, Inquiry into Sanity of Defendant, no further hearing on
competency may be granted unless the successive petition:
(a) alleges with specificity a substantial change of circumstances subsequent to the
previous determination of competency; and
(b) is sufficient to raise a significant question about the inmate's competency to be
executed.
Section 6. Section 77-19-204 is enacted to read:
77-19-204. Order for hearing -- Examinations of inmate -- Scope of examination
and report.
(1) When a court has good reason to believe an inmate sentenced to death is incompetent
to be executed, it shall stay the execution and shall order the Department of Human Services to
examine the inmate and report to the court concerning the inmate's mental condition.
(2) (a) The inmate subject to examination under Subsection (1) shall be examined by at
least two mental health experts who are not involved in the inmate's current treatment.
(b) The Department of Corrections shall provide information and materials to the
examiners relevant to a determination of the inmate's competency to be executed.
(3) The inmate shall make himself available and fully cooperate in the examination by the
Department of Human Services and any other independent examiners for the defense or the state.
(4) The examiners shall in the conduct of their examinations and in their reports to the
court consider and address, in addition to any other factors determined to be relevant by the
examiners:
(a) the inmate's awareness of the fact of the inmate's impending execution;
(b) the inmate's understanding that the inmate is to be executed for the crime of murder;
(c) the nature of the inmate's mental disorder, if any, and its relationship to the factors
relevant to the inmate's competency; and

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(d) whether psychoactive medication is necessary to maintain or restore the inmate's
competency.
(5) The examiners who are examining the inmate shall each provide an initial report to the
court and the attorneys for the state and the inmate within 60 days of the receipt of the court's
order. The report shall inform the court of the examiner's opinion concerning the competency of
the inmate to be executed, or, in the alternative, the examiner may inform the court in writing that
additional time is needed to complete the report. If the examiner informs the court that additional
time is needed, the examiner shall have up to an additional 30 days to provide the report to the
court and counsel. The examiner shall provide the report within 90 days from the receipt of the
court's order unless, for good cause shown, the court authorizes an additional period of time to
complete the examination and provide the report.
(6) (a) All interviews with the inmate conducted by the examiners shall be videotaped,
unless otherwise ordered by the court for good cause shown. The Department of Corrections
shall provide the videotaping equipment and facilitate the videotaping of the interviews.
(b) Immediately following the videotaping, the videotape shall be provided to the attorney
for the state, who shall deliver it as soon as practicable to the judge in whose court the
competency determination is pending.
(c) The court shall grant counsel for the state and for the inmate, and examiners who are
examining the inmate under this part access to view the videotape at the court building where the
court is located that is conducting the competency determination under this part.
(7) Any written report submitted by an examiner shall:
(a) identify the specific matters referred for evaluation;
(b) describe the procedures, techniques, and tests used in the examination and the purpose
or purposes for each;
(c) state the examiner's clinical observations, findings, and opinions on each issue referred
for examination by the court, and indicate specifically those issues, if any, on which the examiner
could not give an opinion; and
(d) identify the sources of information used by the examiner and present the basis for the

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examiner's clinical findings and opinions.
(8) (a) When the reports are received, the court shall set a date for a competency hearing,
which shall be held within not less than five and not more than 15 days, unless the court extends
the time for good cause.
(b) Any examiner directed by the Department of Human Services to conduct the
examination may be subpoenaed to provide testimony at the hearing. If the examiners are in
conflict as to the competency of the inmate, all of them should be called to testify at the hearing if
they are reasonably available.
(c) The court may call any examiner to testify at the hearing who is not called by the
parties. An examiner called by the court may be cross-examined by counsel for the parties.
(9) (a) An inmate shall be presumed competent to be executed unless the court, by a
preponderance of the evidence, finds the inmate incompetent to be executed. The burden of proof
is upon the proponent of incompetency at the hearing.
(b) An adjudication of incompetency to be executed does not operate as an adjudication
of the inmate's incompetency to give informed consent for medical treatment or for any other
purpose, unless specifically set forth in the court order.
(10) (a) If the court finds the inmate incompetent to be executed, its order shall contain
findings addressing each of the factors in Subsections (4)(a) through (d).
(b) The order finding the inmate incompetent to be executed shall be delivered to the
Department of Human Services, and shall be accompanied by:
(i) copies of the reports of the examiners filed with the court pursuant to the order of
examination, if not provided previously;
(ii) copies of any of the psychiatric, psychological, or social work reports submitted to the
court relative to the mental condition of the inmate; and
(iii) any other documents made available to the court by either the defense or the state,
pertaining to the inmate's current or past mental condition.
(c) A copy of the order finding the inmate incompetent to be executed shall be delivered
to the Department of Corrections.

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Section 7. Section 77-19-205 is enacted to read:
77-19-205. Procedures on finding of incompetency to be executed -- Subsequent
hearings -- Notice to attorneys.
(1) (a) (i) If after the hearing under Section 77-19-204 the inmate is found to be
incompetent to be executed, the court shall continue the stay of execution and the inmate shall
receive appropriate mental health treatment.
(ii) Appropriate mental health treatment under Subsection (1)(a)(i) does not include the
forcible administration of psychoactive medication for the sole purpose of restoring the inmate's
competency to be executed.
(b) The court shall order the executive director of the Department of Human Services to
provide periodic assessments to the court regarding the inmate's competency to be executed.
(c) The inmate shall be held in secure confinement, either at the prison or the State
Hospital, as agreed upon by the executive director of the Department of Corrections and the
executive director of the Department of Human Services. If the inmate remains at the prison, the
Department of Human Services shall consult with the Department of Corrections regarding the
inmate's mental health treatment.
(2) (a) The examiner or examiners designated by the executive director of the Department
of Human Services to assess the inmate's progress toward competency may not be involved in the
routine treatment of the inmate.
(b) The examiner or examiners shall each provide a full report to the court and counsel
for the state and the inmate within 90 days of receipt of the court's order. If any examiner is
unable to complete the assessment within 90 days, that examiner shall provide to the court and
counsel for the state and the inmate a summary progress report which informs the court that
additional time is necessary to complete the assessment, in which case the examiner has up to an
additional 90 days to provide the full report, unless the court enlarges the time for good cause.
The full report shall assess:
(i) the facility's or program's capacity to provide appropriate treatment for the inmate;
(ii) the nature of treatments provided to the inmate;

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(iii) what progress toward restoration of competency has been made;
(iv) the inmate's current level of mental disorder and need for treatment, if any; and
(v) the likelihood of restoration of competency and the amount of time estimated to
achieve it.
(3) The court on its own motion or upon motion by either party may order the
Department of Human Services to appoint additional mental health examiners to examine the
inmate and advise the court on the inmate's current mental status and progress toward
competency restoration.
(4) (a) Upon receipt of the full report, the court shall hold a hearing to determine the
inmate's current status. At the hearing, the burden of proving that the inmate is competent is on
the proponent of competency.
(b) Following the hearing, the court shall determine by a preponderance of evidence
whether the inmate is competent to be executed.
(5) (a) If the court determines that the inmate is competent to be executed, it shall enter
findings and shall proceed under Subsection 77-19-202 (2)(c).
(b) (i) If the court determines the inmate is still incompetent to be executed, the inmate
shall continue to receive appropriate mental health treatment, and the court shall hold hearings no
less frequently than at 18-month intervals for the purpose of determining the defendant's
competency to be executed.
(ii) Continued appropriate mental health treatment under Subsection (1)(a)(i) does not
include the forcible administration of psychoactive medication for the sole purpose of restoring
the inmate's competency to be executed.
(6) (a) If at any time the clinical director of the Utah State Hospital or the primary
treating mental health professional determines that the inmate has been restored to competency,
he shall notify the court.
(b) The court shall conduct a hearing regarding the inmate's competency to be executed
within 30 working days of the receipt of the notification under Subsection (6)(a), unless the court
extends the time for good cause. The court may order a hearing or rehearing at any time on its

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own motion.
(7) Notice of a hearing on competency to be executed shall be given to counsel for the
state and for the inmate, as well as to the office of the prosecutor who prosecuted the inmate on
the original capital charge.
Section 8. Section 77-19-206 is enacted to read:
77-19-206. Expenses -- Allocation.
The Department of Human Services and the Department of Corrections shall each pay 1/2
of the costs of any examination of the inmate conducted pursuant to Sections 77-19-204 and
77-19-205 to determine if an inmate is competent to be executed.

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