BILL REQ. #: H-3919.1

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HOUSE BILL 2718
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State of Washington

61st Legislature

2010 Regular Session

By Representatives Shea, Ross, Pearson, Johnson, Haler, Klippert, Angel, Taylor, Condotta, Roach, Orcutt, Schmick, Fagan, McCune, and Warnick

Read first time 01/12/10. Referred to Committee on Judiciary.

AN ACT Relating to criminal defendants who are guilty and mentally ill; amending RCW 10.77.040 and 9.94A.501; and adding a new section to chapter 10.77 RCW.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 10.77 RCW to read as follows:
     (1) A defendant who offers a timely defense of insanity under RCW 10.77.030 may be found "guilty and mentally ill" at trial if the trier of fact finds that:
     (a) The state has proven beyond a reasonable doubt that the defendant is guilty of the crime charged;
     (b) The defendant has failed to prove by a preponderance of the evidence the asserted insanity defense; and
     (c) The defendant or the state has proven by a preponderance of the evidence that the defendant was mentally ill at the time of the commission of the offense and that the defendant's actions at the time of the commission of the offense were affected by symptoms of mental illness.
     (2) A defendant who waives the right to trial may plead guilty and mentally ill. No plea of guilty and mentally ill shall be accepted by the court unless the defendant has undergone examination by a psychologist or psychiatrist, and following a review of the medical evidence and a hearing on the defendant's mental condition, the court is satisfied that there is a factual basis for the plea of guilty and mentally ill. If the court refuses to accept a defendant's plea of guilty and mentally ill, the defendant shall be permitted to withdraw the plea.
     (3) For the purposes of sentencing, a finding of guilty and mentally ill shall be treated the equivalent as a finding of guilty. A defendant who is found guilty and mentally ill may receive any sentence, including a standard range sentence or an exceptional sentence, which could have lawfully been imposed if the defendant were found guilty of the same offense.
     (4) A defendant who is sentenced as guilty and mentally ill shall be under the jurisdiction of the department of corrections. If the defendant's sentence calls for a term of confinement, the defendant shall be committed to the custody of the department of social and health services, which shall place the defendant in a secure mental health facility for an initial period of mental health treatment and evaluation. Following this period, the defendant shall be discharged to the custody of the department of corrections for the balance of the defendant's sentence.
     (a) A defendant in the custody of the department of social and health services who cooperates with treatment shall remain in the custody of the department of social and health services only for such time as is reasonably necessary to stabilize the defendant's condition and determine an appropriate course of treatment for the defendant within the department of corrections. A defendant who refuses to cooperate with treatment must be discharged to the custody of the department of corrections. The decision to discharge the defendant to the custody of the department of corrections shall be made at the sole discretion of the department of social and health services.
     (b) The department of social and health services shall discharge a defendant under this subsection within ninety days, or submit written justification to the department of corrections why continued treatment is necessary in order to achieve the goals in (a) of this subsection. Lack of success in treatment, which is proximately caused by the defendant, is not justification for failing to discharge a defendant. At the time of discharge, the department of social and health services shall provide the department of corrections with a report describing the defendant's condition and recommended course of treatment, and will provide the department of corrections with any requested medical information relating to the treatment of the defendant.
     (c) A defendant committed to the custody of the department of social and health services under this section shall not be confined for longer than the confinement term of the defendant's sentence, and shall be eligible for earned release time under RCW 9.94A.728, as determined jointly by the department of corrections and the department of social and health services.
     (d) A defendant committed to the custody of the department of social and health services under this section shall not be eligible for unescorted privileges on the grounds or outside the grounds of a secure mental health facility without the written permission of the secretary of the department of corrections or the secretary's designee.
     (5) The department of corrections and department of social and health services may adopt rules or make agreements necessary for the implementation of this section.
     (6) For the purposes of this section, the terms "mental illness" and "mentally ill" refer to a substantial disorder of thought, mood, or behavior that has a substantial adverse effect on the defendant's cognitive or volitional functions, but not rising to the level of insanity under RCW 9A.12.010.

Sec. 2 RCW 10.77.040 and 1998 c 297 s 33 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:

		answer yes or no
1.	Did the defendant commit the act charged?	. . . . .
2.	If your answer to number 1 is yes, do you acquit him or her because of insanity existing at the time of the act charged?	. . . . .
3.	If your answer to number 2 is no, has the defendant or the state proven by a preponderance of the evidence that the defendant was mentally ill at the time of the commission of the offense, and that the defendant's actions at the time of the commission of the offense were affected by symptoms of mental illness?
4.	If 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?	. . . . .
((4.)) 5.	If your answer to number 2 is yes, does the defendant present a substantial likelihood of committing criminal acts jeopardizing public safety or security unless kept under further control by the court or other persons or institutions?	. . . . .
((5.)) 6.	If your answers to either number ((3)) 4 or number ((4)) 5 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?	. . . . .

Sec. 3   RCW 9.94A.501 and 2009 c 376 s 2 are each amended to read as follows:
     (1) The department shall supervise every offender convicted of a misdemeanor or gross misdemeanor offense who is sentenced to probation in superior court, pursuant to RCW 9.92.060, 9.95.204, or 9.95.210, for an offense included in (a) and (b) of this subsection. The superior court shall order probation for:
     (a) Offenders convicted of fourth degree assault, violation of a domestic violence court order pursuant to RCW 10.99.040, 10.99.050, 26.09.300, 26.10.220, 26.26.138, 26.50.110, 26.52.070, or 74.34.145, and who also have a prior conviction for one or more of the following:
     (i) A violent offense;
     (ii) A sex offense;
     (iii) A crime against a person as provided in RCW 9.94A.411;
     (iv) Fourth degree assault; or
     (v) Violation of a domestic violence court order; and
     (b) Offenders convicted of:
     (i) Sexual misconduct with a minor second degree;
     (ii) Custodial sexual misconduct second degree;
     (iii) Communication with a minor for immoral purposes; and
     (iv) Failure to register pursuant to RCW 9A.44.130.
     (2) Misdemeanor and gross misdemeanor offenders supervised by the department pursuant to this section shall be placed on community custody.
     (3) The department shall supervise every felony offender sentenced to community custody whose risk assessment, conducted pursuant to subsection (6) of this section, classifies the offender as one who is at a high risk to reoffend.
     (4) Notwithstanding any other provision of this section, the department shall supervise an offender sentenced to community custody regardless of risk classification if the offender:
     (a) Has a current conviction for a sex offense or a serious violent offense as defined in RCW 9.94A.030;
     (b) Has been identified by the department as a dangerous mentally ill offender pursuant to RCW 72.09.370;
     (c) Has an indeterminate sentence and is subject to parole pursuant to RCW 9.95.017;
     (d) Was found guilty and mentally ill under section 1 of this act;
     (e) Was sentenced under RCW 9.94A.650, 9.94A.660, or 9.94A.670; or
     ((~~(e)~~)) (f) Is subject to supervision pursuant to RCW 9.94A.745.
     (5) The department is not authorized to, and may not, supervise any offender sentenced to a term of community custody or any probationer unless the offender or probationer is one for whom supervision is required under subsection (1), (2), (3), or (4) of this section.
     (6) The department shall conduct a risk assessment for every felony offender sentenced to a term of community custody who may be subject to supervision under this section.

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