AN ACT Relating to mental illness of criminal defendants; amending RCW 10.77.010, 10.77.020, 10.77.040, 10.77.060, 10.77.080, and 10.77.110; adding new sections to chapter 10.77 RCW; and creating a new section.

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

Sec. 1. 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 or diminished mental capacity, 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.

(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) "Diminished mental capacity" exists when a person charged with a crime suffers from a mental disease or defect not amounting to insanity, and such disease or defect has acted to prevent the person charged from forming a mental state required as an element of the crime charged. Diminished mental capacity cannot be the result of irrelevant emotions such as jealousy, fear, anger, and hatred, nor the voluntary ingestion of drugs or alcohol.

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

(1) All persons are presumed to be sane.

(2) All persons are presumed to have the capacity to form any mental state which is an element of a criminal charge.

(3) The presumptions in this section are rebuttable upon a showing by a preponderance of the evidence that the challenged presumption does not apply to the party challenging it.

Sec. 3. 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, the court shall upon his request assist the person in obtaining 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 or diminished mental capacity, such commitment or treatment cannot exceed the maximum possible penal sentence for any offense charged for which he was acquitted by reason of insanity or diminished mental capacity. 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 by court appointed experts or professional persons 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.

NEW SECTION. Sec. 4. A new section is added to chapter 10.77 RCW to read as follows:

(1) Evidence of diminished mental capacity is not admissible unless the defendant, at the time of arraignment or within ten days thereafter or at such later time as the court may for good cause permit, files a written notice of intent to rely on such a defense.

(2) Diminished mental capacity shall be established by a preponderance of the evidence.

Sec. 5. Section 4, chapter 117, Laws of 1973 1st ex. sess. as amended by section 4, chapter 198, Laws of 1974 ex. sess. and RCW 10.77.040 are each amended to read as follows:

Whenever the issue of insanity is submitted to the jury, the court shall instruct the jury to return a special verdict in substantially the following form:

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@h1 @i9!ir12,2 1. !tlDid the defendant commit the act charged?

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@i9!ir12,2 2. !tlIf your answer to number 1 is yes, do you acquit him because of (insanity) diminished mental capacity existing at the time of the act charged?

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@i9!ir12,2 3. !tlIf your answer to number 2 is yes, is the defendant a substantial danger to other persons unless kept under further control by the court or other persons or institutions?

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@i9!ir12,2 4. !tlIf your answer to number 2 is yes, does the defendant 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?

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@i9!ir12,2 5. !tlIf your answers to either number 3 or number 4 is yes, is it in the best interests of the defendant and others that the defendant be placed in treatment that is less restrictive than detention in a state mental hospital?

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Sec. 6. 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 diminished mental capacity, 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 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. For purposes of the examination, the court may order the defendant committed to a hospital or other suitable facility for a period of time necessary to complete the examination, but not to exceed fifteen days.

(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 expert or professional person shall have the right to file his own report following the guidelines of subsection (3) 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.

(3) 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 or, if the defendant has indicated his or her intention to rely on evidence of diminished mental capacity pursuant to section 4 of this 1987 act, an opinion as to the defendant's capacity to form a particular mental state 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.

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:

The defendant may move the court for a judgment of acquittal on the grounds of insanity or diminished mental capacity: 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 or suffering from diminished mental capacity 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 or diminished mental capacity, 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.

Sec. 8. 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:

If a defendant is acquitted of a felony by reason of insanity or diminished mental capacity, 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. 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, 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. If the defendant is acquitted by reason of insanity or diminished mental capacity 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.

NEW SECTION. Sec. 9. A new section is added to chapter 10.77 RCW to read as follows:

If a defendant is acquitted by reason of diminished mental capacity of a crime charged, but convicted of a lesser included offense, the following shall apply:

(1) The court shall impose a sentence on the conviction for the lesser included offense in accordance with the sentencing reform act, chapter 9.94A RCW, and determine an appropriate form of treatment on the acquittal by reason of diminished mental capacity in accordance with RCW 10.77.080;

(2) The court shall determine in accordance with RCW 9.94A.400 whether the sentence and periods of treatment shall be served consecutively or concurrently; and

(3) Any period of full-time inpatient treatment shall be served before any period of incarceration in a correctional facility.

NEW SECTION. Sec. 10. This act supersedes any inconsistent provisions of court rules, including superior court criminal rule 4.2.