Representative Nelson T. Abbott proposes the following substitute bill:


1     
COMMITMENT IN CRIMINAL PROCEEDINGS

2     
2022 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Nelson T. Abbott

5     
Senate Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill addresses commitment of an individual found guilty with a mental illness.
10     Highlighted Provisions:
11          This bill:
12          ▸     creates and modifies definitions;
13          ▸     upon a plea or verdict of guilty with a mental illness, requires a court to commit the
14     defendant to a local mental health authority for a certain period if the defendant:
15               •     currently has a certain type of mental illness; and
16               •     committed a certain type of misdemeanor;
17          ▸     allows the court to require the defendant to pay criminal restitution;
18          ▸     requires the court to dismiss the criminal charges against the defendant upon the
19     defendant's completion of the commitment and restitution orders;
20          ▸     requires the local mental health authority to provide care and treatment to the
21     defendant in accordance with civil commitment processes;
22          ▸     allows the local mental health authority to:
23               •     limit the defendant's travel; and
24               •     move the defendant to a more restrictive environment under certain
25     circumstances; and
26          ▸     makes technical and conforming changes.
27     Money Appropriated in this Bill:
28          None
29     Other Special Clauses:
30          None
31     Utah Code Sections Affected:
32     AMENDS:
33          77-16a-101, as last amended by Laws of Utah 2011, Chapter 366
34          77-16a-103, as last amended by Laws of Utah 2011, Chapter 366
35          77-16a-104, as last amended by Laws of Utah 2011, Chapter 366
36          77-16a-202, as last amended by Laws of Utah 2011, Chapter 366
37     ENACTS:
38          77-16a-105, Utah Code Annotated 1953
39          77-16a-202.5, Utah Code Annotated 1953
40     

41     Be it enacted by the Legislature of the state of Utah:
42          Section 1. Section 77-16a-101 is amended to read:
43          77-16a-101. Definitions.
44          As used in this chapter:
45          (1) "Board" means the Board of Pardons and Parole established under Section 77-27-2.
46          (2) "Department" means the Department of Human Services.
47          (3) "Executive director" means the executive director of the Department of Human
48     Services.
49          (4) "Mental health facility" means the Utah State Hospital or other facility that
50     provides mental health services under contract with the division, a local mental health
51     authority, or organization that contracts with a local mental health authority.
52          (5) "Mental illness" is as defined in Section 76-2-305.
53          (6) "Minor offense" means a class B or class C misdemeanor offense that is not:
54          (a) an offense under:
55          (i) Title 41, Chapter 6a, Part 5, Driving Under the Influence and Reckless Driving;
56          (ii) Section 76-4-401, Enticing a minor;
57          (iii) Title 76, Chapter 5, Offenses Against the Person;
58          (iv) Title 76, Chapter 5b, Sexual Exploitation Act;
59          (v) Section 76-9-702.1, Sexual battery;
60          (vi) Section 76-9-702.5, Lewdness involving a child;
61          (vii) Title 76, Chapter 10, Part 12, Pornographic and Harmful Materials and
62     Performances;
63          (viii) Section 76-10-2201, Unlawful body piercing and tattooing of a minor; or
64          (ix) Section 76-10-2301, Contributing to the delinquency of a minor; or
65          (b) a domestic violence offense, as defined in Section 77-36-1.
66          [(6)] (7) "Offender with a mental illness" means an individual who has been
67     adjudicated guilty with a mental illness, including an individual who has an intellectual
68     disability.
69          (8) "Serious mental illness" means the following mental illnesses as described in the
70     current edition of the Diagnostic and Statistical Manual of Mental Disorders published by the
71     American Psychiatric Association:
72          (a) schizophrenia;
73          (b) schizoaffective disorder;
74          (c) bipolar disorders;
75          (d) delusional disorders;
76          (e) psychotic disorders;
77          (f) obsessive compulsive disorders; and
78          (g) dissociative disorders.
79          [(7)] (9) "UDC" means the Department of Corrections.
80          Section 2. Section 77-16a-103 is amended to read:
81          77-16a-103. Plea of guilty with a mental illness at the time of the offense --
82     Hearing to determine present mental state -- Sentencing.
83          (1) [Upon a] Except as provided in Section 77-16a-105, upon a defendant's plea of
84     guilty with a mental illness at the time of the offense [being tendered by a defendant] to any
85     charge, the court shall hold a hearing within a reasonable time to determine whether the
86     defendant currently has a mental illness.
87          (2) (a) [The] To make the determination under Subsection (1), the court may:
88          (i) order the department to examine the defendant[,]; and [may]
89          (ii) receive the testimony of any public or private expert witness offered by the
90     defendant or the prosecutor.
91          (b) The defendant may be placed in the Utah State Hospital for [that] the examination
92     only upon approval by the executive director.
93          (3) (a) [A] The trial judge shall first examine the defendant [who tenders a plea of
94     guilty with a mental illness at the time of the offense shall be examined first by the trial judge,]
95     in compliance with the standards for taking pleas of guilty.
96          (b) The trial judge shall advise the defendant [shall be advised] that a plea of guilty
97     with a mental illness at the time of the offense is a plea of guilty and not a contingent plea.
98          [(b)] (4) If [the defendant is later found not to have a current] the court finds the
99     defendant does not currently have a mental illness[, that]:
100          (a) the defendant's plea remains a valid plea of guilty with a mental illness at the time
101     of the offense[,]; and
102          (b) the court shall sentence the defendant [shall be sentenced] as the court would
103     sentence any other [offender] defendant.
104          [(4)] (5) If the court [concludes] finds that the defendant currently has a mental illness,
105     the court shall:
106          (a) accept the defendant's plea [shall be accepted and the defendant shall be sentenced];
107     and
108          (b) sentence the defendant in accordance with [Section] Sections 77-16a-104 and
109     77-16a-202.
110          [(5) (a) When the offense is a state offense, expenses of examination, observation, and
111     treatment for the defendant shall be paid by the department.]
112          [(b) Travel expenses shall be paid by the county where prosecution is commenced.]
113          [(c) Expenses of examination for defendants charged with violation of a municipal or
114     county ordinance shall be paid by the municipality or county that commenced the prosecution.]
115          (6) (a) If the defendant is charged with a state offense, the department shall pay the
116     expenses of examination, observation, and treatment for the defendant.
117          (b) The county that commenced the prosecution shall pay the travel expenses for the
118     defendant.
119          (c) If the offense is a municipal or county ordinance, the municipality or county that
120     commenced the prosecution shall pay the expenses of examination for the defendant.
121          Section 3. Section 77-16a-104 is amended to read:
122          77-16a-104. Verdict of guilty with a mental illness -- Hearing to determine
123     present mental state -- Sentencing -- Criteria for commitment.
124          (1) [Upon] Except as provided in Section 77-16a-105, upon a verdict of guilty with a
125     mental illness for the offense charged, or any lesser offense, the court shall conduct a hearing to
126     determine the defendant's present mental state.
127          [(2) The court may order the department to examine the defendant to determine the
128     defendant's mental condition, and may receive the evidence of any public or private expert
129     witness offered by the defendant or the prosecutor.]
130          (2) (a) To make the determination under Subsection (1), the court may make the order
131     and receive testimony as described in Subsection 77-16a-103(2)(a).
132          (b) The defendant may be placed in the Utah State Hospital for [that] the examination
133     [only upon approval of the executive director] in accordance with Subsection
134     77-16a-103(2)(b).
135          (3) If the court finds that the defendant does not currently have a mental illness, the
136     court shall sentence the defendant as the court would sentence any other defendant.
137          [(3)] (4) If the court finds by clear and convincing evidence that the defendant currently
138     has a mental illness, the court shall:
139          (a) impose any sentence that could be imposed under law upon a defendant who does
140     not have a mental illness and who is convicted of the same offense[, and:]; and
141          (b) make an order in accordance with Subsection (5).
142          (5) In addition to imposing the sentence under Subsection (4), the court shall:
143          (a) commit the defendant to the department, in accordance with [the provisions of]
144     Section 77-16a-202, if:
145          (i) the court gives the department the opportunity to provide an evaluation and
146     recommendation under Subsection [(4)] (6); and
147          (ii) the court finds by clear and convincing evidence that:
148          (A) because of the defendant's mental illness, the defendant poses an immediate
149     physical danger to self or others, including jeopardizing the defendant's own or others' safety,
150     health, or welfare if placed in a correctional or probation setting, or lacks the ability to provide
151     the basic necessities of life, such as food, clothing, and shelter, if placed on probation; and
152          (B) the department is able to provide the defendant with treatment, care, custody, and
153     security that is adequate and appropriate to the defendant's conditions and needs;
154          (b) order probation in accordance with Section 77-16a-201; or
155          (c) if the court determines that commitment to the department under Subsection
156     [(3)(a)] (5)(a) or probation under Subsection [(3)(b)] (5)(b) is not appropriate, [the court shall]
157     place the defendant in the custody of UDC or a county jail as allowed by law.
158          [(4)] (6) In order to [insure] ensure that the requirements of Subsection [(3)] (4)(a) are
159     met, the court shall, before making a determination, notify the executive director of the
160     proposed placement and provide the department with an opportunity to evaluate the defendant
161     and make a recommendation to the court regarding placement [prior to] before commitment.
162     [(5) If the court finds that the defendant does not currently have a mental illness, the court
163     shall sentence the defendant as it would any other defendant. (6)] Expenses for [examinations]
164     an examination ordered under this section shall be paid in accordance with Subsection
165     [77-16a-103(5)] 77-16a-103(6).
166          Section 4. Section 77-16a-105 is enacted to read:
167          77-16a-105. Plea or verdict of guilty with a mental illness for certain
168     misdemeanors -- Hearing to determine present mental state -- Sentencing -- Criteria for
169     commitment.
170          (1) Notwithstanding Sections 77-16a-103 and 77-16a-104, upon a defendant's plea of
171     guilty with a mental illness at the time of the offense for a minor offense, or upon a verdict of
172     guilty with a mental illness for a minor offense, the court shall hold a hearing within a
173     reasonable time to determine whether the defendant currently has a serious mental illness.
174          (2) (a) To make the determination under Subsection (1), the court may make the order
175     and receive testimony in accordance with Subsection 77-16a-103(2)(a).
176          (b) The defendant may be placed in the Utah State Hospital for the examination in
177     accordance with Subsection 77-16a-103(2)(b).
178          (3) If the defendant enters a plea described in Subsection (1), the trial judge shall
179     examine and advise the defendant in accordance with Subsection 77-16a-103(3)(a).
180          (4) If the court finds the defendant does not currently have a serious mental illness:
181          (a) the defendant's plea described in Subsection (1), if applicable, remains a valid plea
182     of guilty with a mental illness at the time of the offense; and
183          (b) the court shall sentence the defendant in accordance with Subsections
184     77-16a-103(4) and 77-16a-104(3).
185          (5) If the court finds by clear and convincing evidence that the defendant currently has
186     a serious mental illness and meets the criteria described in Subsection 77-16a-104(5)(a)(ii), the
187     court:
188          (a) shall commit the defendant to a local mental health authority in accordance with
189     Section 77-16a-202.5;
190          (b) may require the defendant to pay criminal restitution; and
191          (c) shall dismiss the charges against the defendant for the minor offense immediately
192     after the day on which the defendant:
193          (i) completes payment of any criminal restitution required under Subsection (5)(b); and
194          (ii) is released from the commitment described in Subsection (5)(a).
195          Section 5. Section 77-16a-202 is amended to read:
196          77-16a-202. Individual found guilty with a mental illness -- Commitment to
197     department -- Admission to Utah State Hospital.
198          (1) (a) [In] Except as provided in Section 77-16a-202.5, in sentencing and committing
199     an offender with a mental illness to the department under [Subsection 77-16a-104(3)(a)]
200     Subsections 77-16a-104(3) and (4)(a), the court shall:
201          [(a)] (i) sentence the offender to a term of imprisonment and order that [he] the
202     offender be committed to the department and admitted to the Utah State Hospital for care and
203     treatment until transferred to UDC in accordance with Sections 77-16a-203 and 77-16a-204,
204     making provision for readmission to the Utah State Hospital whenever the requirements and
205     conditions of Section 77-16a-204 are met; or
206          [(b)] (ii) sentence the offender to a term of imprisonment and order that the offender be
207     committed to the department for care and treatment for no more than 18 months, or until the
208     offender's condition has been stabilized to the point that commitment to the department and
209     admission to the Utah State Hospital is no longer necessary to ensure adequate mental health
210     treatment, whichever occurs first.
211          (b) At the expiration of [that time] the commitment period under Subsection (1)(a)(ii),
212     the court may recall the sentence and commitment, and resentence the offender. [A]
213          (c) (i) Subject to Subsection (2), the court shall specify the commitment and retention
214     of jurisdiction under [this Subsection (1)(b) shall be specified] Subsection (1)(a)(ii) in the
215     sentencing order.
216          (ii) If [that] the court does not make the specification [is not included] under
217     Subsection (1)(c)(i) in the sentencing order, the court shall sentence the offender [shall be
218     committed] in accordance with Subsection (1)(a)(i).
219          (2) (a) The court may not retain jurisdiction, under Subsection (1)[(b)](c), over the
220     sentence of an offender with a mental illness who has been convicted of a capital felony.
221          (b) In [capital cases] a capital case, the court shall make the findings required by this
222     section after the capital sentencing proceeding [mandated by] under Section 76-3-207.
223          (3) (a) [When] If an offender is committed to the department and admitted to the Utah
224     State Hospital under Subsection [(1)(b)] (1)(a)(ii), the department shall provide the court with
225     [reports] a report of the offender's mental health status prepared in accordance with Section
226     77-16a-203 every six months. [Those reports shall be prepared in accordance with the
227     requirements of Section 77-16a-203. Additionally, the]
228          (b) The court may appoint an independent examiner to assess the mental health status
229     of the offender.
230          (4) The period of commitment to the department and admission to the Utah State
231     Hospital, and any subsequent retransfers to the Utah State Hospital made [pursuant to] under
232     Section 77-16a-204 may not exceed the maximum sentence imposed on the defendant by the
233     court.
234          (5) Upon expiration of [that] the maximum sentence, the administrator of the facility
235     where the offender is located may initiate civil proceedings for involuntary commitment in
236     accordance with Title 62A, Chapter 5, Services for People with Disabilities, or Title 62A,
237     Chapter 15, [Substance Abuse and Mental Health Act] Part 6, Utah State Hospital and Other
238     Mental Health Facilities.
239          Section 6. Section 77-16a-202.5 is enacted to read:
240          77-16a-202.5. Individual found guilty with a mental illness for certain
241     misdemeanors -- Commitment to local mental health authority.
242          (1) In committing a defendant with a serious mental illness who is found guilty with a
243     mental illness under Section 77-16a-105, the court shall commit the defendant to a local mental
244     health authority for care and treatment for a period of six months.
245          (2) Except as provided in Subsections (3) and (4), the local mental health authority
246     shall provide care and treatment to, periodically examine, and release or discharge the
247     defendant in accordance with Title 62A, Chapter 15, Part 6, Utah State Hospital and Other
248     Mental Health Facilities.
249          (3) If necessary for treatment of the defendant, the local mental health authority may
250     prohibit the defendant from traveling outside of:
251          (a) the defendant's home;
252          (b) the county in which the defendant resides;
253          (c) the state; or
254          (d) a mental health facility.
255          (4) The local mental health authority may issue an order for the immediate placement
256     of the defendant in a more restrictive environment in accordance with Section 62A-15-637:
257          (a) if necessary to prevent the defendant from being a harm to self or others or
258     committing an additional offense;
259          (b) for the reasons described in Subsection 62A-15-637(3)(a); or
260          (c) if the defendant violates a travel restriction under Subsection (3).