AN ACT Relating to criminal procedure; amending RCW 10.77.010, 10.77.020, 10.77.060, 10.77.070, 10.77.080, 10.77.090, 10.77.110, 10.77.120, 10.77.150, 10.77.190, 10.77.200; and adding new sections to chapter 10.77 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. There is added to chapter 10.77 RCW a new section to read as follows:

(1) The state patrol identification and criminal history section shall provide, within the limits of the existing system, a tracking system for defendants committed or placed on conditional release under this chapter. The prosecutor and the department shall provide the section such information as the section may reasonably require on all such defendants.

(2) If the court places the defendant on conditional release, the court clerk shall forward a copy of the order to the section, to the prosecutor, and to the sheriff of the county in which the defendant is ordered to reside or receive supervision or treatment.

NEW SECTION. Sec. 2. There is added to chapter 10.77 RCW a new section to read as follows:

The department is responsible for all costs of sheriff's transportation of criminally insane persons committed to the department, and experts designated by the secretary pursuant to this chapter.

Sec. 3. Section 1, chapter 117, Laws of 1973 1st ex. sess. as last amended by section 1, chapter 122, Laws of 1983 and RCW 10.77.010 are each amended to read as follows:

As used in this chapter:

(1) A "criminally insane" person means any person who has been acquitted of a crime charged by reason of insanity, and thereupon found to be a substantial danger to other persons or to present a substantial likelihood of committing felonious acts jeopardizing public safety or security unless kept under further control by the court or other persons or institutions.

(2) "Indigent" means any person who is financially unable to obtain counsel or other necessary expert or professional services without causing substantial hardship to himself or his family.

(3) "Secretary" means the secretary of the department of social and health services or his designee.

(4) "Department" means the state department of social and health services.

(5) "Treatment" means any currently standardized medical or mental health procedure including medication procedures.

(6) "Incompetency" means a person lacks the capacity to understand the nature of the proceedings against him or to assist in his own defense as a result of mental disease or defect.

(7) No condition of mind proximately induced by the voluntary act of a person charged with a crime shall constitute "insanity".

(8) "Furlough" means an authorized leave of absence for a resident of a state institution designated for the custody, care, and treatment of the criminally insane, consistent with an order of conditional release from the court under this chapter, without any requirement that the resident be accompanied by, or be in the custody of, any law enforcement or institutional staff, while on such unescorted leave.

(9) "Section" means the state patrol identification and criminal history section.

Sec. 4. Section 2, chapter 117, Laws of 1973 1st ex. sess. as amended by section 2, chapter 198, Laws of 1974 ex. sess. and RCW 10.77.020 are each amended to read as follows:

(1) At any and all stages of the proceedings pursuant to this chapter, any person subject to the provisions of this chapter shall be entitled to the assistance of counsel, and if the person is indigent the court shall appoint counsel to assist him. A person may waive his right to counsel; but such waiver shall only be effective if a court makes a specific finding that he is or was competent to so waive. In making such findings, the court shall be guided but not limited by the following standards: Whether the person attempting to waive the assistance of counsel, does so understanding:

(a) The nature of the charges;

(b) The statutory offense included within them;

(d) Possible defenses to the charges and circumstances in mitigation thereof; and

(e) All other facts essential to a broad understanding of the whole matter.

(2) Whenever any person is subjected to an examination pursuant to any provision of this chapter, he may retain an expert or professional person to perform an examination in his behalf. In the case of a person who is indigent and is either subject to a hearing, or entitled to petition for a hearing under RCW 10.77.150 or 10.77.200 (1) and (2), the court shall upon his request ((~~assist the person in obtaining~~)) appoint an expert or professional person to perform an examination or participate in the hearing on his behalf. An expert or professional person obtained by an indigent person pursuant to the provisions of this chapter shall be compensated for his services out of funds of the department, in an amount determined by it to be fair and reasonable.

(3) Whenever any person has been committed under any provision of this chapter, or ordered to undergo alternative treatment following his acquittal of a crime charged by reason of insanity, such commitment or treatment, including time spent in pre-trial detention, cannot exceed the maximum possible penal sentence for any offense charged for which he was acquitted by reason of insanity. If at the end of that period the person has not been finally discharged and is still in need of commitment or treatment, civil commitment proceedings may be instituted, if appropriate.

(4) Any time the defendant is being ((~~examined~~)) questioned by court appointed experts or professional persons during an examination conducted pursuant to the provisions of this chapter, he shall be entitled to have his attorney present. The defendant may refuse to answer any question if he believes his answers may tend to incriminate him or form links leading to evidence of an incriminating nature.

Sec. 5. Section 6, chapter 117, Laws of 1973 1st ex. sess. as amended by section 6, chapter 198, Laws of 1974 ex. sess. and RCW 10.77.060 are each amended to read as follows:

(1) Whenever a defendant has pleaded not guilty by reason of insanity, or there is reason to doubt his competency, the court on its own motion or on the motion of any party shall ((~~either appoint or request~~)) direct the secretary to designate ((~~at least two qualified experts or professional persons, one of whom shall be approved by the prosecuting attorney, to examine and report upon the mental condition of the defendant~~)) and provide a qualified expert or professional person to examine the defendant and report on the defendant's mental condition within a reasonable time. For purposes of the examination and treatment, the court may ((~~order~~)) commit the defendant ((~~committed~~)) to a state hospital or other suitable facility, or to the guidance and control of another person, for a period of time necessary to complete the examination, but not to exceed fifteen days. However, the defendant shall not be committed to a state hospital for the examination unless:

(a) The secretary cannot provide a designated expert to examine the defendant in the jail or other suitable facility within the community determined by the court; or

(b) The designated expert recommends commitment for continued observation and examination as to competency or a plea of not guilty by reason of insanity; or

(d) The court finds that the defendant is gravely disabled, or has a mental disorder and is a danger to himself or herself or others, as defined in chapter 71.05 RCW.

(2) The court may direct that a qualified expert or professional person retained by or appointed for the defendant be permitted to witness the examination authorized by subsection (1) of this section, and that he shall have access to all information obtained by the court appointed experts or professional persons. The defendant's and prosecutor's expert or professional persons shall have the right to file ((~~his~~)) their own report following the guidelines of subsection ((~~(3)~~)) (4) of this section. If the defendant is indigent, the court shall upon the request of the defendant assist him in obtaining an expert or professional person. The defendant's and prosecutor's expert or professional person shall have access to all information obtained by designated or court-appointed experts or professional persons.

(3) Before the examination, qualified experts and professional persons shall receive a copy of the police report regarding the defendant's alleged activities from the prosecuting party.

(4) The report of the examination shall include the following:

(a) A description of the nature of the examination;

(b) A diagnosis of the mental condition of the defendant;

(d) If the defendant has indicated his intention to rely on the defense of insanity pursuant to RCW 10.77.030, an opinion as to the defendant's sanity at the time of the act;

(e) When directed by the court, an opinion as to the capacity of the defendant to have a particular state of mind which is an element of the offense charged;

(f) An opinion as to whether the defendant is a substantial danger to other persons, or presents a substantial likelihood of committing felonious acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions;

(g) An opinion as to the need for medication of the defendant to maintain competency throughout the proceedings.

Sec. 6. Section 7, chapter 117, Laws of 1973 1st ex. sess. and RCW 10.77.070 are each amended to read as follows:

When the prosecutor or defendant ((~~wishes to be examined~~)) requests examination of the defendant by a qualified expert or professional person of his own choice, such examiner shall be permitted to have reasonable access to the defendant for the purpose of such examination, as well as to all relevant medical and psychological records and reports.

Sec. 7. Section 8, chapter 117, Laws of 1973 1st ex. sess. as amended by section 7, chapter 198, Laws of 1974 ex. sess. and RCW 10.77.080 are each amended to read as follows:

(1) The defendant may move the court for a judgment of acquittal on the grounds of insanity: PROVIDED, That a defendant so acquitted may not later contest the validity of his detention on the grounds that he did not commit the acts charged. At the hearing upon said motion the defendant shall have the burden of proving by a preponderance of the evidence that he was insane at the time of the offense or offenses with which he is charged. If the court finds that the defendant should be acquitted by reason of insanity, it shall enter specific findings in substantially the same form as set forth in RCW 10.77.040 as now or hereafter amended. If the motion is denied, the question may be submitted to the trier of fact in the same manner as other issues of fact.

(2) The court shall not accept the defendant's plea of not guilty on the grounds of insanity without first determining that the defendant's choice of the defense of insanity was made voluntarily and with an understanding of the nature of the charge and the consequences of an insanity acquittal.

Sec. 8. Section 9, chapter 117, Laws of 1973 1st ex. sess. as last amended by section 3, chapter 215, Laws of 1979 ex. sess. and RCW 10.77.090 are each amended to read as follows:

(1) If at any time during the pendency of a prosecution for a crime that is not a felony and prior to judgment, the court finds, following a report as provided in RCW 10.77.060, that the defendant:

(a) Is incompetent;

(b) Has a recent history of findings of incompetency to stand trial; and

!ixthe court may, upon the prosecutor's petition, commit the defendant to the custody of the secretary, who shall place such defendant in an appropriate facility of the department for evaluation and treatment, or the court may alternatively order the defendant to undergo evaluation and treatment at some other facility, or under the guidance and control of some other persons, until he or she has regained the competency necessary to understand the proceedings against him or her and assist in his or her own defense, but in any event, for no longer than a period of twenty-one days. In no event may the total terms of commitment served by the defendant exceed the maximum allowable sentence for the offense charged. Following receipt of the report as provided in RCW 10.77.060 or upon expiration of the commitment period ordered pursuant to this subsection, if the court finds that the defendant remains incompetent, the charges shall be dismissed, and either civil commitment proceedings shall be instituted, if appropriate, or the court shall order the release of the defendant. A defendant who has had charges dismissed because of incompetency shall not be recharged.

(2) If at any time during the pendency of ((~~an action~~)) a prosecution for a crime that is a felony and prior to judgment, the court finds following a report as provided in RCW 10.77.060((~~, as now or hereafter amended,~~)) that the defendant is incompetent, the court shall order the proceedings against him be stayed((~~, except as provided in subsection (5) of this section, and, if the defendant is charged with a felony,~~)). The court may commit the defendant to the custody of the secretary, who shall place such defendant in an appropriate facility of the department for evaluation and treatment, or the court may alternatively order the defendant to undergo evaluation and treatment at some other facility, or under the guidance and control of some other person, until he has regained the competency necessary to understand the proceedings against him and assist in his own defense, but in any event, for no longer than a period of ninety days. A copy of the order and report shall be sent to the facility. When a report is received pursuant to this section, on or before the expiration of the initial ninety day period of commitment the court shall conduct a hearing, at which it shall determine whether or not the defendant ((is)) remains incompetent. ((If the defendant is charged with a crime which is not a felony, the court may stay or dismiss proceedings and detain the defendant for sufficient time to allow the county mental health professional to evaluate the defendant and commence proceedings under chapter 71.05 RCW if appropriate; and subsections (2) and (3) of this section shall not be applicable: PROVIDED, That, upon order of the court, the prosecutor may directly petition for fourteen days of involuntary treatment under chapter 71.05 RCW.

~~(2)~~)) If the court finds ((~~by a preponderance of the evidence~~)) that the defendant ((is)) remains incompetent, the court shall have the options ((~~of extending~~)):

(a) To extend the order of commitment or alternative treatment for an additional ninety day period, but it must at the time of extension set a date for a prompt hearing to determine the defendant's competency before the expiration of the second ninety day period. ((The defendant, his attorney, the prosecutor, or the judge shall have the right to demand that the hearing on or before the expiration of the second ninety day period be before a jury. If no demand is made, the hearing shall be before the court. The court or jury shall determine whether or not the defendant has become competent. (3))) At the hearing upon the expiration of the second ninety day period if the ((~~jury or~~)) court((~~, as the case may be,~~)) finds that the defendant ((is)) remains incompetent, the charges shall be dismissed without prejudice, and either civil commitment proceedings shall be instituted, if appropriate, or the court shall order the release of the defendant((: PROVIDED, That the criminal charges shall not be dismissed if at the end of the second ninety day period the court or jury finds that the defendant is a substantial danger to other persons, or presents a substantial likelihood of committing felonious acts jeopardizing public safety or security, and that there is a substantial probability that the defendant will regain competency within a reasonable period of time. In the event that the court or jury makes such a finding, the court may extend the period of commitment for an additional six months. At the end of said six month period, if the defendant remains incompetent, the charges shall be dismissed without prejudice and either civil commitment proceedings shall be instituted, if appropriate, or the court shall order release of the defendant)); or

(b) Upon the request of the prosecutor, to dismiss the charges without prejudice. Upon dismissal, either civil commitment proceedings shall be instituted, if appropriate, or the court shall order the release of the defendant.

(3) Not less than fourteen days before the conclusion of the commitment period provided for by this section, or when the qualified professionals responsible for the defendant's treatment conclude that the defendant has regained competency, whichever occurs first, the facility providing evaluation and treatment shall provide to defense counsel, the prosecutor, and the court a written report of examination which meets the requirements of RCW 10.77.060(4). The court shall conduct a competency hearing within fourteen days of receipt of the report that the defendant has regained competency.

(4) The fact that the defendant is unfit to proceed does not preclude any pretrial proceedings which do not require the personal participation of the defendant.

(5) A defendant receiving medication for either physical or mental problems shall not be prohibited from standing trial, if the medication either enables him to understand the proceedings against him and to assist in his own defense, or does not disable him from so understanding and assisting in his own defense. The court, after a hearing and upon consideration of the effects of medication, may order administration of medications necessary to maintain competency throughout the proceedings.

(6) ((At or before the conclusion of any commitment period provided for by this section, the facility providing evaluation and treatment shall provide to the court a written report of examination which meets the requirements of RCW 10.77.060(3))) If the court finds that the defendant is competent, the criminal proceedings shall go forward, provided that if the defendant is convicted, the time spent in custody pursuant to this chapter shall be deducted from the presumptive sentence imposed by the sentencing judge.

Sec. 9. Section 11, chapter 117, Laws of 1973 1st ex. sess. as last amended by section 1, chapter 25, Laws of 1983 and RCW 10.77.110 are each amended to read as follows:

(1) If a defendant is acquitted of a felony by reason of insanity, and it is found that he is not a substantial danger to other persons, and does not present a substantial likelihood of committing felonious acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions, the court shall direct his final discharge.

(2) If it is found that such defendant is a substantial danger to other persons, or presents a substantial likelihood of committing felonious acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions, the court shall order his hospitalization, or any appropriate alternative treatment less restrictive than detention in a state mental hospital, including conditional release pursuant to the terms of this chapter. ((If it is found that such defendant is not a substantial danger to other persons, and does not present a substantial likelihood of committing felonious acts jeopardizing public safety or security, but that he is in need of control by the court or other persons or institutions, the court shall direct his conditional release.))

(3) If the defendant is acquitted by reason of insanity of a crime which is not a felony, the court shall order the defendant's release or order the defendant's continued custody only for a reasonable time to allow the county-designated mental-health professional to evaluate the individual and to proceed with civil commitment pursuant to chapter 71.05 RCW, if considered appropriate.

Sec. 10. Section 12, chapter 117, Laws of 1973 1st ex. sess. as amended by section 11, chapter 198, Laws of 1974 ex. sess. and RCW 10.77.120 are each amended to read as follows:

The secretary shall forthwith provide adequate care and individualized treatment at one or several of the state institutions or facilities under his direction and control wherein persons committed as criminally insane may be confined. Such persons shall be under the custody and control of the secretary to the same extent as are other persons who are committed to his custody, but such provision shall be made for their control, care, and treatment as is proper in view of their condition. In order that the secretary may adequately determine the nature of the mental illness of the person committed to him as criminally insane, and in order for the secretary to place such individuals in a proper facility, all persons who are committed to the secretary as criminally insane shall be promptly examined by qualified personnel in such a manner as to provide a proper evaluation and diagnosis of such individual. Any person so committed shall not be discharged from the control of the secretary save upon the order of a court of competent jurisdiction made after a hearing and judgment of discharge.

Whenever there is a hearing which the committed person is entitled to attend, the secretary shall send him in the custody of one or more department employees to the county where the hearing is to be held at the time the case is called for trial. If the person represents a serious security risk, the secretary may request the assistance of the county sheriff for transportation. During the time he is absent from the facility, he shall be confined in a jail or other facility designated by and arranged for by the department, and shall at all times be deemed to be in the custody of the department ((~~employee~~)) and provided necessary treatment. If the decision of the hearing remits the person to custody, the ((~~department employee~~)) county sheriff shall forthwith return him to such institution or facility designated by the secretary. If the state appeals an order of final discharge, ((such appeal shall operate as a stay, and the person in custody shall so remain and be forthwith returned to the institution or facility designated by the secretary until a final decision has been rendered in the cause)) the trial court may stay the order pending the appeal.

Sec. 11. Section 15, chapter 117, Laws of 1973 1st ex.s. as last amended by section 1, chapter 112, Laws of 1982 and RCW 10.77.150 are each amended to read as follows:

(1) Persons ((~~examined pursuant to RCW 10.77.140, as now or hereafter amended,~~)) committed to the secretary as criminally insane may ((~~make application~~)) apply to the secretary for conditional release after six months' commitment. The secretary shall, after considering the reports of experts or professional persons conducting the examination pursuant to RCW 10.77.140, ((~~forward~~)) promptly send to the court ((~~of the county which ordered his commitment~~)), the person, the person's attorney, and the prosecuting attorney the person's application for conditional release as well as his recommendations concerning the application and any proposed terms and conditions upon which he reasonably believes the person can be conditionally released. Conditional release may also contemplate partial release for work, training, or educational purposes. If the committed person is indigent, the court shall appoint an attorney and, upon request, a qualified expert or professional person to examine him on his behalf and assist in the hearing and hearing process. The secretary may petition the court for release of a criminally insane person at any time.

(2) The court of the county which ordered his commitment, upon receipt of an application for conditional release ((~~with the secretary's recommendation for conditional release,~~)) shall ((~~within thirty days~~)) schedule a hearing within thirty days if the secretary or a qualified expert or professional recommends in support of the application. The court may schedule a hearing on applications recommended for disapproval ((~~by the secretary~~)). The prosecuting attorney shall represent the state at such hearings and shall have the right to have the patient examined by an expert or professional person of his choice. ((~~If the committed person is indigent, and he so requests, the court shall appoint a qualified expert or professional person to examine him on his behalf.~~)) The issue to be determined at such a hearing is whether or not the person may be released conditionally without substantial danger to other persons, or substantial likelihood of committing felonious acts jeopardizing public safety or security. ((~~The court, after the hearing, shall rule on the secretary's recommendations, and if it disapproves of conditional release, may do so only on the basis of substantial evidence.~~)) If the secretary or a qualified expert or professional recommends in support of conditional release, the court shall disapprove the conditional release only on the basis of substantial evidence. The court may modify the suggested terms and conditions on which the person is to be conditionally released. Pursuant to the determination of the court after hearing, the committed person shall thereupon be released on such conditions as the court determines to be necessary, or shall be remitted to the custody of the secretary.

(3) If the court determines that receiving regular or periodic medication or other medical treatment shall be a condition of the committed person's release, then the court shall require him to report to a physician or other person for the medication or treatment. In addition to submitting any report required by RCW 10.77.160, the physician or other person shall immediately upon the released person's failure to appear for the medication or treatment report the failure to the court and to the prosecuting attorney of the county in which the released person was committed.

(4) Any person, whose application for conditional release has been denied, may reapply after a period of six months from the date of denial of a conditional release or final discharge petition.

Sec. 12. Section 19, chapter 117, Laws of 1973 1st ex. sess. as last amended by section 2, chapter 112, Laws of 1982 and RCW 10.77.190 are each amended to read as follows:

(1) Any person submitting reports pursuant to RCW 10.77.160, the secretary, or the prosecuting attorney may petition the court to, or the court on its own motion may schedule an immediate hearing for the purpose of modifying the terms of conditional release if the petitioner or the court believes the released person is failing to adhere to the terms and conditions of his conditional release or is in need of additional care and treatment.

(2) If the prosecuting attorney, the secretary, or the court, after examining the report filed with them pursuant to RCW 10.77.160, or based on other information received by them, reasonably believes that a conditionally released person is failing to adhere to the terms and conditions of his conditional release the court or secretary may order that the conditionally released person be apprehended and taken into custody until such time as a hearing can be scheduled to determine the facts and whether or not the person's conditional release should be revoked or modified. The court shall be notified before the close of the next judicial day of the apprehension. Both the prosecuting attorney and the conditionally released person shall have the right to request an immediate mental examination of the conditionally released person. If the conditionally released person is indigent, the court ((~~or secretary shall, upon request, assist him in obtaining~~)) shall appoint an attorney and, upon request, a qualified expert or professional person to ((~~conduct the examination~~)) examine the person on his behalf and assist him in the hearing and hearing process.

(3) The court, upon receiving notification of the apprehension, shall promptly schedule a hearing. The issue to be determined is whether the conditionally released person did or did not adhere to the terms and conditions of his release. Pursuant to the determination of the court upon such hearing, the conditionally released person shall either continue to be conditionally released on the same or modified conditions or his conditional release shall be revoked and he shall be committed subject to release only in accordance with provisions of this chapter.

Sec. 13. Section 20, chapter 117, Laws of 1973 1st ex. sess. as last amended by section 2, chapter 25, Laws of 1983 and RCW 10.77.200 are each amended to read as follows:

(1) ((Upon application by the criminally insane or conditionally released person, the secretary shall determine whether or not reasonable grounds exist for final discharge. If the secretary approves the final discharge he then shall authorize said person to petition the court.

(2) The petition shall be served upon the court and the prosecuting attorney. The court, upon receipt of the petition for final discharge, shall within forty-five days order a hearing. Continuance of the hearing date shall only be allowed for good cause shown. The prosecuting attorney shall represent the state, and shall have the right to have the petitioner examined by an expert or professional person of his choice. If the petitioner is indigent, and he so requests, the court shall appoint a qualified expert or professional person to examine him. The hearing shall be before a jury if demanded by either the petitioner or the prosecuting attorney. The burden of proof shall be upon the petitioner to show by a preponderance of the evidence that the petitioner may be finally discharged without substantial danger to other persons, and without presenting a substantial likelihood of committing felonious acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions.

(3) Nothing contained in this chapter shall prohibit the patient from petitioning the court for final discharge or conditional release from the institution in which he or she is committed. The issue to be determined on such proceeding is whether the petitioner is a substantial danger to other persons, or presents a substantial likelihood of committing felonious acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions.)) Persons committed to the secretary as criminally insane or placed on conditional release may apply to the secretary for a final discharge after six months from the date of their acquittal. The secretary shall, after considering the reports of experts or professional persons conducting the examination pursuant to RCW 10.77.140, promptly send to the court, the person, the person's attorney, and the prosecuting attorney, the person's application for final discharge as well as the secretary's recommendation concerning the application. If the committed person is indigent, the court shall appoint an attorney and, upon request, a qualified expert or professional person to examine the person on his or her behalf and assist in the hearing and hearing process. The secretary may petition the court for a final discharge of a criminally insane person at any time.

(2) The court of the county which ordered the commitment, upon receipt of the application for final discharge shall schedule a hearing within thirty days if the secretary or a qualified expert or professional recommends in support of the application. The court may schedule a hearing on applications recommended for disapproval. The prosecuting attorney shall represent the state at such hearings and shall have the right to have the patient examined by an expert or professional person of his or her choice. The hearing shall be before a jury if demanded by either the petitioner or the prosecuting attorney. The burden of proof shall be upon the petitioner to show by a preponderance of the evidence that the petitioner may be finally discharged without a substantial danger to other persons, or does not present a substantial likelihood of committing further felonious acts jeopardizing public safety or security unless kept under further control by the court or other persons or institutions. If the secretary or a qualified expert or professional recommends in support of final discharge, the court shall disapprove the final discharge only on the basis of substantial evidence. Upon the petition for final discharge, the court may place the petitioner on conditional release or modify the terms of an existing conditional release order pursuant to RCW 10.77.150.

(3) Any person whose application for final discharge has been denied may reapply after a period of six months from the date of denial of a conditional release or final discharge petition.

(4) Nothing contained in this chapter shall prohibit the committed person from petitioning for release by writ of habeas corpus.

NEW SECTION. Sec. 14. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.