BILL REQ. #: S-0241.1

_____________________________________________

SENATE BILL 5104
_____________________________________________

State of Washington

62nd Legislature

2011 Regular Session

By Senators Carrell, Stevens, and Schoesler

Read first time 01/13/11. Referred to Committee on Judiciary.

AN ACT Relating to criminal defendants who are guilty and mentally ill; amending RCW 10.77.040; reenacting and amending RCW 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 person who timely offers a defense of insanity pursuant to 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 has proven by a preponderance of the evidence that he or she was mentally ill at the time of the commission of the offense and that the symptoms of the defendant's mental illness affected the defendant's decision making at the time of the commission of the offense.
     (2) A person who waives the right to trial may plead guilty and mentally ill. No plea of guilty and mentally ill may be accepted by the trial judge until the defendant has undergone examination by a psychologist or psychiatrist and the judge has examined the psychological or psychiatric report or reports, has held a hearing on the issue of the defendant's mental condition, and is satisfied that there is a factual basis that the defendant was mentally ill at the time of the offense to which the plea is entered. If the trial judge refuses to accept a plea of guilty and mentally ill, the defendant shall be permitted to withdraw the plea.
     (3) A defendant found guilty and mentally ill or whose plea of guilty and mentally ill is accepted pursuant to subsection (2) of this section may have any sentence imposed that may lawfully be imposed on any defendant convicted of the same offense, including a standard range or an exceptional sentence.
     (4) The defendant shall be placed under the jurisdiction of the department of corrections.
     (5) For the purposes of this section, "mental illness" and "mentally ill" mean any organic, mental, or emotional impairment that has substantial adverse effects on a person's cognitive or volitional functions, but not rising to the level of insanity pursuant to 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 proven that he or she was mentally ill at the time of the commission of the offense?	. . . . .
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 2010 c 267 s 10 and 2010 c 224 s 3 are each reenacted and 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) Violation of RCW 9A.44.132(2) (failure to register).
     (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) Has a current conviction for violating RCW 9A.44.132(1) (failure to register);
     (e) Was sentenced under RCW 9.94A.650, 9.94A.655, 9.94A.660, or 9.94A.670; ((or))
     (f) Is subject to supervision pursuant to RCW 9.94A.745; or
     (g) Was found guilty and mentally ill under section 1 of this act.
     (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.

--- END ---