Representative Carol Spackman Moss proposes the following substitute bill:


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 first
14     degree or capital felony by reason of insanity;
15          ▸     places the burden of proof on a defendant asserting a defense of not guilty by reason
16     of insanity to a first degree or capital felony charge;
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;
20          ▸     provides that a judge presiding over the prosecution of an individual asserting the
21     defense of not guilty by reason of insanity may exercise discretion in ordering the
22     Department of Health to conduct a mental examination of the defendant; and
23          ▸     makes technical changes.
24     Money Appropriated in this Bill:
25          None
26     Other Special Clauses:
27          None
28     Utah Code Sections Affected:
29     AMENDS:
30          76-2-305, as last amended by Laws of Utah 2016, Chapter 115
31          77-16a-301, as last amended by Laws of Utah 2019, Chapter 312
32          77-16a-304, as last amended by Laws of Utah 2011, Chapter 366
33          77-16a-305, as last amended by Laws of Utah 1993, Chapter 285
34          77-16a-306, as last amended by Laws of Utah 2011, Chapter 366
35     

36     Be it enacted by the Legislature of the state of Utah:
37          Section 1. Section 76-2-305 is amended to read:
38          76-2-305. Mental illness -- Use as a defense -- Burden of proof -- Influence of
39     alcohol or other substance voluntarily consumed -- Definition.
40          [(1) (a) It is a defense to a prosecution under any statute or ordinance that the
41     defendant, as a result of mental illness, lacked the mental state required as an element of the
42     offense charged.]
43          (1) As used in this section:
44          (a) "Intellectual disability" means a significant subaverage general intellectual
45     functioning, existing concurrently with deficits in adaptive behavior, and manifested prior to
46     age 22.
47          (b) (i) "Mental illness" means a mental disease or defect that substantially impairs an
48     individual's mental, emotional, or behavioral functioning, and may include a mental disease or
49     defect caused by a congenital condition, injury, or physical or mental disease.
50          (ii) "Mental illness" includes an intellectual disability.
51          (iii) "Mental illness" does not include an antisocial personality disorder as defined in
52     the current edition of the Diagnostic and Statistical Manual of Mental Disorders published by
53     the American Psychiatric Association.
54          (c) "Wrongfulness" means legal wrongfulness or moral wrongfulness.
55          (2) (a) It is a defense to a first degree or capital felony charge that the defendant, as a
56     result of mental illness, was unable to appreciate the nature and quality or the wrongfulness of
57     the defendant's actions.
58          (b) It is a defense to a criminal charge that is not a first degree or capital felony that the
59     defendant, as a result of mental illness, lacked the mental state required as an element of the
60     offense charged.
61          (3) A defendant asserting the defense described in Subsection (2)(a) has the burden of
62     pleading and proving by clear and convincing evidence the facts necessary to entitle the
63     defendant to be found not guilty under this section.
64          [(b)] (4) Mental illness is not otherwise a defense, but may be evidence in mitigation of
65     the penalty in a capital felony under Section 76-3-207 and may be evidence of special
66     mitigation reducing the level of a criminal homicide or attempted criminal homicide offense
67     under Section 76-5-205.5.
68          [(2)] (5) [The defense defined in this section] Each defense described in Subsection (2)
69     includes the defenses known as "insanity" and "diminished mental capacity."
70          [(3) A person] (6) A defendant who asserts a defense of insanity or diminished mental
71     capacity, and who is under the influence of voluntarily consumed, injected, or ingested alcohol,
72     controlled substances, or volatile substances at the time of the alleged offense is not excused
73     from criminal responsibility on the basis of mental illness if the alcohol or substance caused[,
74     triggered,] or substantially contributed to [the mental illness.]:
75          (a) the defendant's inability to appreciate the nature and quality or the wrongfulness of
76     the defendant's actions as described in Subsection (2)(a); or
77          (b) the defendant lacking the mental state required as an element of the offense charged
78     as described in Subsection (2)(b).
79          [(4) As used in this section:]
80          [(a) "Intellectual disability" means a significant subaverage general intellectual
81     functioning, existing concurrently with deficits in adaptive behavior, and manifested prior to
82     age 22.]
83          [(b) (i) "Mental illness" means a mental disease or defect that substantially impairs a
84     person's mental, emotional, or behavioral functioning. A mental defect may be a congenital
85     condition, the result of injury, or a residual effect of a physical or mental disease and includes,
86     but is not limited to, intellectual disability.]
87          [(ii) "Mental illness" does not mean an abnormality manifested primarily by repeated
88     criminal conduct.]
89          Section 2. Section 77-16a-301 is amended to read:
90          77-16a-301. Mental examination of defendant.
91          (1) (a) When the court receives notice that a defendant intends to claim that the
92     defendant is not guilty by reason of insanity or that the defendant had diminished mental
93     capacity, or that the defendant intends to assert special mitigation under Subsection
94     76-5-205.5(2)(a), the court [shall] may order the department to examine the defendant and
95     investigate the defendant's mental condition.
96          (b) The person or organization directed by the department to conduct the examination
97     shall testify at the request of the court or either party in a proceeding in which the testimony is
98     otherwise admissible.
99          (c) Pending trial, unless the court or the executive director directs otherwise, the
100     defendant shall be retained in the same custody or status the defendant was in at the time the
101     examination was ordered.
102          (2) (a) The defendant shall be available and shall fully cooperate in the examination by
103     the department and other independent examiners for the defense and the prosecuting attorney.
104          (b) If the defendant fails to be available and to fully cooperate, and that failure is
105     established to the satisfaction of the court at a hearing prior to trial, the defendant is barred
106     from presenting expert testimony relating to the defendant's defense of mental illness at the
107     trial of the case.
108          (c) The department shall complete the examination within 30 days after the court's
109     order, and shall prepare and provide to the court prosecutor and defense counsel a written
110     report concerning the condition of the defendant.
111          (3) Within 10 days after receipt of the report described in Subsection (2)(c) from the
112     department, but not later than five days before the trial of the case, or at any other time the
113     court directs, the prosecuting attorney shall file and serve upon the defendant a notice of
114     rebuttal of the defense of mental illness, which shall contain the names of witnesses the
115     prosecuting attorney proposes to call in rebuttal.
116          (4) The report of another independent examiner is admissible as evidence upon
117     stipulation of the prosecution and defense.
118          (5) (a) This section does not prevent a party from producing other testimony as to the
119     mental condition of the defendant.
120          (b) An expert witness who is not appointed by the court is not entitled to compensation
121     under Subsection (7).
122          (6) This section does not require the admission of evidence not otherwise admissible.
123          (7) (a) The department shall pay the expenses of an examination ordered by the court
124     under this section.
125          (b) The department shall charge the county where the prosecution is commenced for
126     travel expenses associated with an examination incurred by a defendant.
127          (c) The department shall charge the entity commencing the prosecution for an
128     examination of a defendant charged with a violation of a municipal or county ordinance.
129          Section 3. Section 77-16a-304 is amended to read:
130          77-16a-304. Review after commitment.
131          (1) (a) The executive director, or the executive director's designee, shall establish a
132     review team of at least three [qualified staff members] licensed mental health professionals to
133     review the defendant's mental condition at least every [six] 12 months.
134          (b) When establishing a review team under this Subsection (1), the executive director
135     shall take into account best practices for assessing the defendant's risk of violence.
136          [(b)] (c) The review team described in [Subsection (1)(a)] this Subsection (1) shall
137     include:
138          (i) at least one forensic psychiatrist or forensic psychologist; and
139          (ii) if the defendant has an intellectual disability, at least one staff member who is a
140     designated intellectual disability professional.
141          (2) If the review team described in Subsection (1) finds that the defendant has
142     recovered from the defendant's mental illness, or, that the defendant [still has a] has not
143     recovered from the defendant's mental illness but does not present a substantial danger to self
144     or others, the executive director, or the executive director's designee, shall:
145          (a) notify the court that committed the defendant that the defendant is a candidate for
146     discharge; and
147          (b) provide the court with a report stating the facts that form the basis for the
148     recommendation.
149          (3) (a) The court shall conduct a hearing within [10 business] 30 days after [receipt of
150     the executive director's, or the executive director's designee's, notification] the day on which
151     the court receives the notification described in Subsection (2).
152          (b) The court clerk shall provide notice of the date and time of the hearing to:
153          (i) the prosecuting attorney;
154          (ii) the defendant's attorney; and
155          (iii) any victim of the crime for which the defendant was found not guilty by reason of
156     insanity.
157          (4) (a) The court shall order that the defendant be discharged from commitment in
158     accordance with Section 77-16a-306 if the court finds that the defendant:
159          (i) [no longer has a] has recovered from mental illness; or
160          (ii) has [a] not recovered from mental illness, but is no longer [presents] a substantial
161     danger to self or others.
162          (b) The court shall order the [person] defendant conditionally released in accordance
163     with Section 77-16a-305 if the court finds that the defendant:
164          (i) has a mental illness;
165          (ii) is a substantial danger to self or others; and
166          (iii) can be [controlled] adequately controlled if conditionally released with proper
167     care, medication, supervision, and treatment as a condition of release.
168          (c) The court shall order that the commitment be continued if the court finds that the
169     defendant:
170          (i) has not recovered from the defendant's mental illness;
171          (ii) is a substantial danger to self or others; and
172          (iii) cannot be adequately [be] controlled if conditionally released [on supervision]
173     with proper care, medication, supervision, and treatment as a condition of release.
174          (d) (i) [Except as provided in Subsection (4)(d)(ii), the] The court may not discharge a
175     defendant whose mental illness is in remission as a result of medication or hospitalization if it
176     can be determined within reasonable medical probability that, without continued medication or
177     hospitalization, the defendant's mental illness will reoccur, making the defendant a substantial
178     danger to self or others.
179          (ii) Notwithstanding Subsection (4)(d)(i), the defendant described in Subsection
180     (4)(d)(i) may be a candidate for conditional release, in accordance with Section 77-16a-305.
181          Section 4. Section 77-16a-305 is amended to read:
182          77-16a-305. Conditional release.
183          (1) If the review team described in Subsection 77-16a-304(1) finds that a defendant is
184     not eligible for discharge[,] in accordance with [Section] Subsection 77-16a-304(4)(a), but that
185     [his] the defendant's mental illness and dangerousness can be adequately controlled with proper
186     care, medication, supervision, and treatment, as described in Subsection 77-16a-304(4)(b), if
187     [he] the defendant is conditionally released, the review team shall prepare a report and notify
188     the executive director, or [his] the executive director's designee, that the defendant is a
189     candidate for conditional release.
190          (2) [The] Upon receipt of the report described in Subsection (1), the executive director,
191     or [his] the executive director's designee, shall prepare a conditional release plan[, listing] that:
192          (a) describes the type of care [and treatment that the individual needs and
193     recommending], supervision, medication, and treatment the defendant needs, taking into
194     account best practices for assessing the defendant's risk of violence; and
195          (b) recommends a treatment provider.
196          (3) The executive director, or [his] the executive director's designee, shall provide the
197     court, the defendant's attorney, and the prosecuting attorney with a copy of the report issued by
198     the review team under Subsection (1), and the conditional release plan described in Subsection
199     (2).
200          (4) (a) The court shall conduct a hearing on the issue of conditional release within 30
201     days after [receipt of those documents] the day on which the court receives the documents
202     described in Subsection (3).
203          [(4)] (b) The court may order that [a] the defendant be conditionally released [if it] in
204     accordance with the defendant's conditional release plan if the court finds that, even though the
205     defendant presents a substantial danger to [himself] self or others, [he] the defendant can be
206     adequately controlled with proper care, supervision, medication, and treatment that is available
207     and provided for in the defendant's conditional release plan.
208          (5) (a) The department may provide [treatment] the care, supervision, medication, and
209     treatment described in Subsection (4)(b) in accordance with the defendant's conditional release
210     plan or contract with a local mental health authority or other public or private provider to
211     provide the care, supervision, medication, and treatment[ for a defendant who is conditionally
212     released under this section].
213          (b) A local mental health authority, or other public or private provider that provides
214     care, supervision, medication, and treatment to a defendant who is conditionally released under
215     this section shall immediately notify the executive director, or the executive director's designee,
216     upon learning the defendant is not compliant with the defendant's conditional release plan.
217          (6) (a) If the department receives notice or otherwise finds that the defendant is not
218     compliant with the defendant's conditional release plan, the department may issue an order
219     temporarily revoking the defendant's conditional release and requiring the defendant to
220     immediately submit to the custody of the department.
221          (b) (i) Temporary revocation of a defendant's conditional release under Subsection
222     (6)(a) is effective for seven business days after the day on which the defendant is taken into the
223     custody of the department, unless otherwise ordered by the court.
224          (ii) A peace officer is authorized to take a defendant whose conditional release is
225     temporarily revoked under Subsection (6)(a) into physical custody and transport the defendant
226     to the custody of the department.
227          (c) Upon temporary revocation of a defendant's conditional release, the executive
228     director, or the executive director's designee, shall immediately provide the court, the
229     defendant's attorney, and the prosecuting attorney with written notice of the:
230          (i) temporary revocation; and
231          (ii) reason for the temporary revocation.
232          (7) Before the day on which the court conducts the hearing described in Subsection
233     (8)(a), the review team described in Section 77-16a-304 shall review the mental condition of
234     the defendant and provide a report to the court that describes whether the defendant remains a
235     candidate for conditional release under Subsection (1).
236          (8) (a) The court shall conduct an initial hearing within seven business days after the
237     day on which the defendant is taken into the custody of the department and reach an initial
238     determination regarding whether the defendant is a substantial danger to self or others, taking
239     into consideration:
240          (i) the report described in Subsection (7); and
241          (ii) arguments or evidence presented by the parties.
242          (b) If the court determines at the initial hearing described in Subsection (8)(a) that the
243     defendant is not a substantial danger to self or others, the defendant may be released on the
244     defendant's current release plan.
245          (c) (i) If the court determines at the initial hearing described in Subsection (8)(a) that
246     the defendant is a substantial danger to self or others, the court shall order:
247          (A) the defendant detained; and
248          (B) the executive director, or the executive director's designee, to establish a review
249     team that meets the requirements described in Subsection 77-16a-304(1) to review the
250     defendant's mental condition within 30 days after the day on which the court sends notice of the
251     order.
252          (ii) Upon completion of the review described in Subsection (8)(c)(i)(B), the defendant
253     shall be subject to the review and court proceedings described in Section 77-16a-304.
254          (d) The court shall order that the defendant be conditionally released in accordance
255     with the defendant's conditional release plan if the court finds that, even though the defendant
256     presents a substantial danger to self or others, the defendant can be adequately controlled with
257     supervision and treatment that is available and provided for in the defendant's conditional
258     release plan.
259          (9) The court clerk shall provide notice of the initial hearing described in Subsection
260     (8)(a) in accordance with Subsection 77-16a-304(3).
261          Section 5. Section 77-16a-306 is amended to read:
262          77-16a-306. Continuing review -- Discharge.
263          [(1) Each] (1) (a) An entity that provides treatment for a defendant committed to the
264     custody of the department as not guilty by reason of insanity under this part shall review the
265     status of each defendant at least once every [six] 12 months.
266          (b) If the treatment provider described in Subsection (1)(a) or a treatment provider
267     providing treatment to a conditionally released defendant under Section 77-16a-305 finds that a
268     defendant has recovered from the defendant's mental illness[, or, if] or that the defendant has a
269     mental illness[,] but no longer presents a substantial danger to self or others, [it] the treatment
270     provider shall notify the executive director of [its] the treatment provider's findings.
271          (2) (a) Upon receipt of the notification [under] described in Subsection (1), the
272     executive director shall designate a review team, in accordance with Section 77-16a-304, to
273     evaluate the defendant.
274          (b) If [that] the review team described in Subsection (2)(a) concurs with the treatment
275     provider's assessment, the executive director shall notify the court, the defendant's attorney,
276     [and] the prosecuting attorney, and the victims that the defendant is a candidate for discharge.
277          (c) The court shall conduct a hearing, in accordance with Section 77-16a-302, within
278     [10 business] 30 days after [receipt of that notice] the day on which the court receives the
279     notice described in Subsection (2)(b).
280          (3) (a) The court may not discharge [an individual] a defendant whose mental illness is
281     in remission as a result of medication or hospitalization if it can be determined within
282     reasonable medical probability that, without continued medication or hospitalization, the
283     defendant's mental illness will reoccur, making the defendant a substantial danger to self or
284     others.
285          (b) Notwithstanding Subsection (3)(a), the defendant described in Subsection (3)(a)
286     may be a candidate for conditional release in accordance with Section 77-16a-305.