1     
INSANITY DEFENSE AMENDMENTS

2     
2019 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Carol Spackman Moss

5     
Senate Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions relating to the criminal defense of not guilty by reason of
10     insanity.
11     Highlighted Provisions:
12          This bill:
13          ▸     modifies the circumstances under which a defendant may plead not guilty to a
14     criminal offense by reason of insanity;
15          ▸     modifies provisions relating to supervision, assessment, and release of a defendant
16     committed to the Department of Human Services after being found not guilty of a
17     criminal offense by reason of insanity; and
18          ▸     makes technical changes.
19     Money Appropriated in this Bill:
20          None
21     Other Special Clauses:
22          None
23     Utah Code Sections Affected:
24     AMENDS:
25          76-2-305, as last amended by Laws of Utah 2016, Chapter 115
26          77-16a-304, as last amended by Laws of Utah 2011, Chapter 366
27          77-16a-305, as last amended by Laws of Utah 1993, Chapter 285
28          77-16a-306, as last amended by Laws of Utah 2011, Chapter 366
29     

30     Be it enacted by the Legislature of the state of Utah:
31          Section 1. Section 76-2-305 is amended to read:
32          76-2-305. Mental illness -- Use as a defense -- Influence of alcohol or other
33     substance voluntarily consumed -- Definition.
34          (1) (a) It is a defense to a prosecution under any statute or ordinance that, at the time of
35     the commission of the offense, the defendant, as a result of mental illness, [lacked the mental
36     state required as an element of the offense charged.] was unable to appreciate the nature and
37     quality or the wrongfulness of the defendant's actions.
38          (b) Mental illness is not otherwise a defense, but may be evidence in mitigation of the
39     penalty in a capital felony under Section 76-3-207 and may be evidence of special mitigation
40     reducing the level of a criminal homicide or attempted criminal homicide offense under
41     Section 76-5-205.5.
42          (2) The defense defined in this section includes the defenses known as "insanity" and
43     "diminished mental capacity."
44          (3) A [person] defendant who asserts a defense of insanity or diminished mental
45     capacity, and who is under the influence of voluntarily consumed, injected, or ingested alcohol,
46     controlled substances, or volatile substances at the time of the alleged offense is not excused
47     from criminal responsibility on the basis of mental illness if the alcohol or substance caused,
48     triggered, or substantially contributed to the defendant's mental illness.
49          (4) As used in this section:
50          (a) "Intellectual disability" means a significant subaverage general intellectual
51     functioning, existing concurrently with deficits in adaptive behavior, and manifested prior to
52     age 22.
53          (b) (i) "Mental illness" means a mental disease or defect that substantially impairs a
54     person's mental, emotional, or behavioral functioning. A mental defect may be a congenital
55     condition, the result of injury, or a residual effect of a physical or mental disease and includes,
56     but is not limited to, intellectual disability.
57          (ii) "Mental illness" does not mean an abnormality manifested primarily by repeated
58     criminal conduct.
59          Section 2. Section 77-16a-304 is amended to read:
60          77-16a-304. Review after commitment.
61          (1) (a) The executive director, or the executive director's designee, shall establish a
62     review team of at least three qualified staff members to review the defendant's mental condition
63     at least every six months.
64          (b) The review team described in [Subsection (1)(a)] this subsection shall include:
65          (i) at least one psychiatrist; and
66          (ii) if the defendant has an intellectual disability, at least one staff member who is a
67     designated intellectual disability professional.
68          (2) If the review team described in Subsection (1) finds that the defendant has
69     recovered from the defendant's mental illness, or, that the defendant still has a mental illness
70     but does not present a substantial danger to self or others, the executive director, or the
71     executive director's designee, shall:
72          (a) notify the court that committed the defendant that the defendant is a candidate for
73     discharge; and
74          (b) provide the court with a report stating the facts that form the basis for the
75     recommendation.
76          (3) (a) The court shall conduct a hearing within 10 business days after receipt of the
77     [executive director's, or the executive director's designee's,] notification described in
78     Subsection (2).
79          (b) The court clerk shall provide notice of the date and time of the hearing to:
80          (i) the prosecuting attorney;
81          (ii) the defendant's attorney; and
82          (iii) any victim of the crime for which the defendant was found not guilty by reason of
83     insanity.
84          (4) (a) The court shall order that the defendant be discharged from commitment in
85     accordance with Section 77-16a-306 if the court finds that the defendant:
86          (i) no longer has a mental illness; or
87          (ii) has a mental illness, but no longer presents a substantial danger to self or others.
88          (b) The court shall order the [person] defendant be conditionally released in accordance
89     with Section 77-16a-305 if the court finds that the defendant:
90          (i) has a mental illness;
91          (ii) is a substantial danger to self or others; and
92          (iii) can be [controlled] adequately controlled if conditionally released with treatment
93     and supervision as a condition of release.
94          (c) The court shall order that the commitment be continued if the court finds that the
95     defendant:
96          (i) has not recovered from the defendant's mental illness;
97          (ii) is a substantial danger to self or others; and
98          (iii) cannot [adequately] be adequately controlled if conditionally released [on] with
99     treatment and supervision as a condition of release.
100          (d) (i) Except as provided in Subsection (4)(d)(ii), the court may not discharge a
101     defendant whose mental illness is in remission as a result of medication or hospitalization if it
102     can be determined within reasonable medical probability that without continued medication or
103     hospitalization the defendant's mental illness will reoccur, making the defendant a substantial
104     danger to self or others.
105          (ii) Notwithstanding Subsection (4)(d)(i), the defendant described in Subsection
106     (4)(d)(i) may be a candidate for conditional release, in accordance with Section 77-16a-305.
107          Section 3. Section 77-16a-305 is amended to read:
108          77-16a-305. Conditional release.
109          (1) If the review team described in Section 77-16a-304 finds that a defendant is not
110     eligible for discharge, in accordance with Section 77-16a-304, but that [his] the defendant's
111     mental illness and dangerousness can be adequately controlled with proper care, medication,
112     supervision, and treatment if [he] the defendant is conditionally released, the review team shall
113     prepare a report and notify the executive director, or [his] the executive director's designee, that
114     the defendant is a candidate for conditional release.
115          (2) [The] Upon receipt of the report described in Subsection (1), the executive director,
116     or [his] the executive director's designee, shall prepare a conditional release plan[, listing] that
117     describes the type of care, supervision, and treatment that the [individual] defendant needs,
118     taking into account best practices for assessing the defendant's risk of violence, and
119     [recommending] recommends a treatment provider.
120          (3) The executive director, or [his] the executive director's designee, shall provide the
121     court, the defendant's attorney, and the prosecuting attorney with a copy of the report issued by
122     the review team under Subsection (1), and the conditional release plan described in Subsection
123     (2).
124          (4) (a) The court shall conduct a hearing on the issue of conditional release within 30
125     days after [receipt of those documents] the day on which the court receives the documents
126     described in Subsection (3).
127          [(4)] (b) The court [may] shall order that [a] the defendant be conditionally released in
128     accordance with the defendant's conditional release plan if [it] the court finds that, even though
129     the defendant presents a substantial danger to [himself] self or others, [he] the defendant can be
130     adequately controlled with supervision and treatment that is available and provided for in the
131     defendant's conditional release plan.
132          (5) (a) The department may provide the treatment provided for in the defendant's
133     conditional release plan or contract with a local mental health authority or other public or
134     private provider to provide the treatment [for a defendant who is conditionally released under
135     this section].
136          (b) A local mental health authority or other public or private provider that provides
137     treatment to a defendant who is conditionally released under this section shall immediately
138     notify the executive director, or the executive director's designee, upon learning the defendant
139     is not compliant with the defendant's conditional release plan.
140          (6) The department shall supervise a defendant who is conditionally released under this
141     section in accordance with the defendant's conditional release plan.
142          (7) (a) The department may temporarily revoke a defendant's conditional release and
143     immediately place the defendant into custody of the department if the defendant is not
144     compliant with the terms of the defendant's conditional release plan.
145          (b) (i) A temporary revocation of a defendant's conditional release under Subsection
146     (7)(a) is effective for three business days after the day on which the department issues the
147     order, unless otherwise ordered by the court.
148          (ii) A peace officer is authorized to take a defendant whose conditional release has
149     been temporarily revoked under Subsection (7)(a) into physical custody and transport the
150     defendant to the custody of the department.
151          (c) Upon temporary revocation of a defendant's conditional release, the executive
152     director, or the executive director's designee, shall immediately provide the court, the
153     defendant's attorney, and the prosecuting attorney written notice of:
154          (i) the temporary revocation; and
155          (ii) the reason for the temporary revocation.
156          (d) Before the day on which the court conducts the hearing described in Subsection
157     (7)(e), the review team described in Section 77-16a-304 shall review the mental condition of
158     the defendant and provide a report to the court that describes whether the defendant is still a
159     candidate for conditional release.
160          (e) (i) The court shall conduct a hearing on the issue of the temporary revocation of the
161     defendant's conditional release within three business days after the day on which the court
162     receives the order for the temporary revocation of the defendant's conditional release from the
163     department.
164          (ii) The court clerk shall provide notice of the hearing on the issue of temporary
165     revocation of the defendant's conditional release in accordance with Subsection 77-16a-304(3).
166          Section 4. Section 77-16a-306 is amended to read:
167          77-16a-306. Continuing review -- Discharge.
168          (1) (a) [Each] An entity that provides treatment for a defendant committed to the
169     custody of the department as not guilty by reason of insanity under this part shall review the
170     status of each defendant at least once every six months.
171          (b) If the treatment provider described in Subsection (1)(a) or a treatment provider
172     providing treatment to a conditionally released defendant under Section 77-16a-305 finds that a
173     defendant has recovered from the defendant's mental illness, or, if the defendant has a mental
174     illness, no longer presents a substantial danger to self or others, [it] the treatment provider shall
175     notify the executive director of [its] the treatment provider's findings.
176          (2) (a) Upon receipt of the notification under Subsection (1), the executive director
177     shall designate a review team, in accordance with Section 77-16a-304, to evaluate the
178     defendant.
179          (b) [If that review team] If the review team described in Subsection (2)(a) concurs with
180     the treatment provider's assessment, the executive director shall notify the court, the
181     defendant's attorney, and the prosecuting attorney that the defendant is a candidate for
182     discharge.
183          (c) The court shall conduct a hearing, in accordance with Section 77-16a-302, within
184     10 business days after [receipt of that notice] the day on which the court receives the notice
185     described in Subsection (2)(b).
186          (3) The court may not discharge [an individual] a defendant whose mental illness is in
187     remission as a result of medication or hospitalization if it can be determined within reasonable
188     medical probability that without continued medication or hospitalization the defendant's mental
189     illness will reoccur, making the defendant a substantial danger to self or others.