1     
INSANITY DEFENSE AMENDMENTS

2     
2020 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          ▸     places the burden of proof on a defendant asserting a defense of not guilty by reason
16     of insanity;
17          ▸     modifies provisions relating to supervision, assessment, and release of a defendant
18     committed to the Department of Human Services after being found not guilty of a
19     criminal offense by reason of insanity; and
20          ▸     makes technical changes.
21     Money Appropriated in this Bill:
22          None
23     Other Special Clauses:
24          None
25     Utah Code Sections Affected:
26     AMENDS:
27          76-2-305, as last amended by Laws of Utah 2016, Chapter 115
28          77-16a-304, as last amended by Laws of Utah 2011, Chapter 366
29          77-16a-305, as last amended by Laws of Utah 1993, Chapter 285
30          77-16a-306, as last amended by Laws of Utah 2011, Chapter 366
31     

32     Be it enacted by the Legislature of the state of Utah:
33          Section 1. Section 76-2-305 is amended to read:
34          76-2-305. Mental illness -- Use as a defense -- Burden of proof -- Influence of
35     alcohol or other substance voluntarily consumed -- Definition.
36          (1) As used in this section:
37          (a) "Intellectual disability" means a significant subaverage general intellectual
38     functioning, existing concurrently with deficits in adaptive behavior, and manifested prior to
39     age 22.
40          (b) (i) "Mental illness" means a mental disease or defect that substantially impairs an
41     individual's mental, emotional, or behavioral functioning, and may include a mental disease or
42     defect caused by a congenital condition, injury, or physical or mental disease.
43          (ii) "Mental illness" includes an intellectual disability.
44          (iii) "Mental illness" does not include an antisocial personality disorder as defined in
45     the current edition of the Diagnostic and Statistical Manual of Mental Disorders published by
46     the American Psychiatric Association.
47          [(1)] (2) (a) It is a defense to a prosecution under any statute or ordinance that the
48     defendant, as a result of mental illness, [lacked the mental state required as an element of the
49     offense charged.] was unable to appreciate the nature and quality or the wrongfulness of the
50     defendant's actions.
51          (b) A defendant asserting the defense described in Subsection (2)(a) has the burden of
52     pleading and proving by clear and convincing evidence the facts necessary to entitle the
53     defendant to be found not guilty under this section.
54          [(b)] (3) Mental illness is not otherwise a defense, but may be evidence in mitigation of
55     the penalty in a capital felony under Section 76-3-207 and may be evidence of special
56     mitigation reducing the level of a criminal homicide or attempted criminal homicide offense
57     under Section 76-5-205.5.
58          [(2)] (4) The defense [defined in this section] described in Subsection (2)(a) includes
59     the defenses known as "insanity" and "diminished mental capacity."
60          [(3) A person] (5) A defendant who asserts a defense of insanity or diminished mental
61     capacity, and who is under the influence of voluntarily consumed, injected, or ingested alcohol,
62     controlled substances, or volatile substances at the time of the alleged offense is not excused
63     from criminal responsibility on the basis of mental illness if the alcohol or substance caused[,
64     triggered,] or substantially contributed to the [mental illness] defendant's inability to appreciate
65     the nature and quality or the wrongfulness of the defendant's actions as described in Subsection
66     (2)(a).
67          [(4) As used in this section:]
68          [(a) "Intellectual disability" means a significant subaverage general intellectual
69     functioning, existing concurrently with deficits in adaptive behavior, and manifested prior to
70     age 22.]
71          [(b) (i) "Mental illness" means a mental disease or defect that substantially impairs a
72     person's mental, emotional, or behavioral functioning. A mental defect may be a congenital
73     condition, the result of injury, or a residual effect of a physical or mental disease and includes,
74     but is not limited to, intellectual disability.]
75          [(ii) "Mental illness" does not mean an abnormality manifested primarily by repeated
76     criminal conduct.]
77          Section 2. Section 77-16a-304 is amended to read:
78          77-16a-304. Review after commitment.
79          (1) (a) The executive director, or the executive director's designee, shall establish a
80     review team of at least three [qualified staff members] licensed mental health professionals to
81     review the defendant's mental condition at least every [six] 12 months.
82          (b) When establishing a review team under this Subsection (1), the executive director
83     shall take into account best practices for assessing the defendant's risk of violence.
84          [(b)] (c) The review team described in [Subsection (1)(a)] this Subsection (1) shall
85     include:
86          (i) at least one forensic psychiatrist; and
87          (ii) if the defendant has an intellectual disability, at least one staff member who is a
88     designated intellectual disability professional.
89          (2) If the review team described in Subsection (1) finds that the defendant has
90     recovered from the defendant's mental illness, or, that the defendant [still has a] has not
91     recovered from the defendant's mental illness but does not present a substantial danger to self
92     or others, the executive director, or the executive director's designee, shall:
93          (a) notify the court that committed the defendant that the defendant is a candidate for
94     discharge; and
95          (b) provide the court with a report stating the facts that form the basis for the
96     recommendation.
97          (3) (a) The court shall conduct a hearing within [10 business] 30 days after [receipt of
98     the executive director's, or the executive director's designee's, notification] the day on which
99     the court receives the notification described in Subsection (2).
100          (b) The court clerk shall provide notice of the date and time of the hearing to:
101          (i) the prosecuting attorney;
102          (ii) the defendant's attorney; and
103          (iii) any victim of the crime for which the defendant was found not guilty by reason of
104     insanity.
105          (4) (a) The court shall order that the defendant be discharged from commitment in
106     accordance with Section 77-16a-306 if the court finds that the defendant:
107          (i) [no longer has a] has recovered from mental illness; or
108          (ii) has [a] not recovered from mental illness, but is no longer [presents] a substantial
109     danger to self or others.
110          (b) The court shall order the [person] defendant conditionally released in accordance
111     with Section 77-16a-305 if the court finds that the defendant:
112          (i) has a mental illness;
113          (ii) is a substantial danger to self or others; and
114          (iii) can be [controlled] adequately controlled if conditionally released with proper
115     care, medication, supervision, and treatment as a condition of release.
116          (c) The court shall order that the commitment be continued if the court finds that the
117     defendant:
118          (i) has not recovered from the defendant's mental illness;
119          (ii) is a substantial danger to self or others; and
120          (iii) cannot be adequately [be] controlled if conditionally released [on supervision]
121     with proper care, medication, supervision, and treatment as a condition of release.
122          (d) (i) [Except as provided in Subsection (4)(d)(ii), the] The court may not discharge a
123     defendant whose mental illness is in remission as a result of medication or hospitalization if it
124     can be determined within reasonable medical probability that, without continued medication or
125     hospitalization, the defendant's mental illness will reoccur, making the defendant a substantial
126     danger to self or others.
127          (ii) Notwithstanding Subsection (4)(d)(i), the defendant described in Subsection
128     (4)(d)(i) may be a candidate for conditional release, in accordance with Section 77-16a-305.
129          Section 3. Section 77-16a-305 is amended to read:
130          77-16a-305. Conditional release.
131          (1) If the review team described in Subsection 77-16a-304(1) finds that a defendant is
132     not eligible for discharge[,] in accordance with [Section] Subsection 77-16a-304(4)(a), but that
133     [his] the defendant's mental illness and dangerousness can be adequately controlled with proper
134     care, medication, supervision, and treatment, as described in Subsection 77-16a-304(4)(b), if
135     [he] the defendant is conditionally released, the review team shall prepare a report and notify
136     the executive director, or [his] the executive director's designee, that the defendant is a
137     candidate for conditional release.
138          (2) [The] Upon receipt of the report described in Subsection (1), the executive director,
139     or [his] the executive director's designee, shall prepare a conditional release plan[, listing] that:
140          (a) describes the type of care [and treatment that the individual needs and
141     recommending], supervision, medication, and treatment the defendant needs, taking into
142     account best practices for assessing the defendant's risk of violence; and
143          (b) recommends a treatment provider.
144          (3) The executive director, or [his] the executive director's designee, shall provide the
145     court, the defendant's attorney, and the prosecuting attorney with a copy of the report issued by
146     the review team under Subsection (1), and the conditional release plan described in Subsection
147     (2).
148          (4) (a) The court shall conduct a hearing on the issue of conditional release within 30
149     days after [receipt of those documents] the day on which the court receives the documents
150     described in Subsection (3).
151          [(4)] (b) The court [may] shall order that [a] the defendant be conditionally released [if
152     it] in accordance with the defendant's conditional release plan if the court finds that, even
153     though the defendant presents a substantial danger to [himself] self or others, [he] the
154     defendant can be adequately controlled with proper care, supervision, medication, and
155     treatment that is available and provided for in the defendant's conditional release plan.
156          (5) (a) The department may provide [treatment] the care, supervision, medication, and
157     treatment described in Subsection (4)(b) in accordance with the defendant's conditional release
158     plan or contract with a local mental health authority or other public or private provider to
159     provide the care, supervision, medication, and treatment[ for a defendant who is conditionally
160     released under this section].
161          (b) A local mental health authority, or other public or private provider that provides
162     care, supervision, medication, and treatment to a defendant who is conditionally released under
163     this section shall immediately notify the executive director, or the executive director's designee,
164     upon learning the defendant is not compliant with the defendant's conditional release plan.
165          (6) (a) If the department receives notice or otherwise finds that the defendant is not
166     compliant with the defendant's conditional release plan, the department may issue an order
167     temporarily revoking the defendant's conditional release and requiring the defendant to
168     immediately submit to the custody of the department.
169          (b) (i) Temporary revocation of a defendant's conditional release under Subsection
170     (6)(a) is effective for seven business days after the day on which the defendant is taken into the
171     custody of the department, unless otherwise ordered by the court.
172          (ii) A peace officer is authorized to take a defendant whose conditional release is
173     temporarily revoked under Subsection (6)(a) into physical custody and transport the defendant
174     to the custody of the department.
175          (c) Upon temporary revocation of a defendant's conditional release, the executive
176     director, or the executive director's designee, shall immediately provide the court, the
177     defendant's attorney, and the prosecuting attorney with written notice of the:
178          (i) temporary revocation; and
179          (ii) reason for the temporary revocation.
180          (7) Before the day on which the court conducts the hearing described in Subsection
181     (8)(a), the review team described in Section 77-16a-304 shall review the mental condition of
182     the defendant and provide a report to the court that describes whether the defendant remains a
183     candidate for conditional release under Subsection (1).
184          (8) (a) The court shall conduct an initial hearing within seven business days after the
185     day on which the defendant is taken into the custody of the department and reach an initial
186     determination regarding whether the defendant is a substantial danger to self or others, taking
187     into consideration:
188          (i) the report described in Subsection (7); and
189          (ii) arguments or evidence presented by the parties.
190          (b) If the court determines at the initial hearing described in Subsection (8)(a) that the
191     defendant is not a substantial danger to self or others, the defendant may be released on the
192     defendant's current release plan.
193          (c) (i) If the court determines at the initial hearing described in Subsection (8)(a) that
194     the defendant is a substantial danger to self or others, the court shall order:
195          (A) the defendant detained; and
196          (B) the executive director, or the executive director's designee, to establish a review
197     team that meets the requirements described in Subsection 77-16a-304(1) to review the
198     defendant's mental condition within 30 days after the day on which the court sends notice of the
199     order.
200          (ii) Upon completion of the review described in Subsection (8)(c)(i)(B), the defendant
201     shall be subject to the review and court proceedings described in Section 77-16a-304.
202          (d) The court shall order that the defendant be conditionally released in accordance
203     with the defendant's conditional release plan if the court finds that, even though the defendant
204     presents a substantial danger to self or others, the defendant can be adequately controlled with
205     supervision and treatment that is available and provided for in the defendant's conditional
206     release plan.
207          (9) The court clerk shall provide notice of the initial hearing described in Subsection
208     (8)(a) in accordance with Subsection 77-16a-304(3).
209          Section 4. Section 77-16a-306 is amended to read:
210          77-16a-306. Continuing review -- Discharge.
211          [(1) Each] (1) (a) An entity that provides treatment for a defendant committed to the
212     custody of the department as not guilty by reason of insanity under this part shall review the
213     status of each defendant at least once every [six] 12 months.
214          (b) If the treatment provider described in Subsection (1)(a) or a treatment provider
215     providing treatment to a conditionally released defendant under Section 77-16a-305 finds that a
216     defendant has recovered from the defendant's mental illness[, or, if] or that the defendant has a
217     mental illness[,] but no longer presents a substantial danger to self or others, [it] the treatment
218     provider shall notify the executive director of [its] the treatment provider's findings.
219          (2) (a) Upon receipt of the notification [under] described in Subsection (1), the
220     executive director shall designate a review team, in accordance with Section 77-16a-304, to
221     evaluate the defendant.
222          (b) If [that] the review team described in Subsection (2)(a) concurs with the treatment
223     provider's assessment, the executive director shall notify the court, the defendant's attorney,
224     [and] the prosecuting attorney, and the victims that the defendant is a candidate for discharge.
225          (c) The court shall conduct a hearing, in accordance with Section 77-16a-302, within
226     [10 business] 30 days after [receipt of that notice] the day on which the court receives the
227     notice described in Subsection (2)(b).
228          (3) (a) The court may not discharge [an individual] a defendant whose mental illness is
229     in remission as a result of medication or hospitalization if it can be determined within
230     reasonable medical probability that, without continued medication or hospitalization, the
231     defendant's mental illness will reoccur, making the defendant a substantial danger to self or
232     others.
233          (b) Notwithstanding Subsection (3)(a), the defendant described in Subsection (3)(a)
234     may be a candidate for conditional release in accordance with Section 77-16a-305.