Background:

Incompetency.

A person is incompetent to stand trial in a criminal case if he or she lacks the capacity to understand the nature of the proceedings or is unable to assist in his or her own defense. A court may require a competency evaluation of a defendant whenever the issue of competency is raised, and a person who is incompetent may not be tried, convicted, or sentenced for a criminal offense as long as the incompetency continues.

If a person is found incompetent to stand trial, the court must stay the criminal proceedings and, depending on the charged offense, either order a period of treatment for restoration of competency, or dismiss the charges without prejudice. If the defendant undergoes restoration but cannot be restored to competency within the designated time period, the criminal case must be dismissed without prejudice.

Evaluations and Petitions for Involuntary Treatment.

If a person's competency is not restored and charges have been dismissed, the person will be considered for commitment in the civil system. The Involuntary Treatment Act (ITA) sets forth the procedures, rights, and requirements for an involuntary civil commitment. After the court dismisses felony or serious misdemeanor charges, the person is transferred to a hospital or other evaluation and treatment facility for 72 hours for purposes of an involuntary treatment evaluation. The statute addressing felony dismissals also allows the court to order the defendant's release. At the end of the 72-hour period, a petition may be filed for either 90 or 180 additional days of treatment, depending on the underlying dismissed charge.

Grounds for Involuntary Treatment After a Felony Dismissal.

A person who has had felony charges dismissed due to incompetency may be detained for a period of 180 days if the petitioner can prove by clear, cogent, and convincing evidence that the person has committed acts constituting a felony, and as a result of a mental disorder, the person presents a substantial likelihood of repeating similar acts. No order of commitment under the ITA may exceed 180 days, but commitment may be renewed upon successive petitions and hearings. The grounds on subsequent petitions match those for the initial petition for commitment, but additional factors are considered in the analysis of likelihood of repeating similar acts, including life history, progress in treatment, and the public safety.

Release of Involuntarily Detained People.

The Department of Social and Health Services (DSHS) must give advance written notice of a change in a detained person's detention status to the chief of police and sheriff in the person's jurisdiction of residence, and to victims and witnesses who have requested notice. Notice is required at least 30 days prior to release, authorized leave, or transfer to another facility, or upon escape, of a person who is committed after a dismissal of a sex, violent, or felony harassment offense.

Legislation in 2010 created a public safety review panel to independently review and assess the DSHS's proposals for conditional release, furlough, temporary leave, and similar changes in commitment status of people found not guilty by reason of insanity (NGRI). The panel provides written determinations of the public safety risk presented by any release recommendation, and may offer alternative recommendations. The panel's recommendations are submitted to the court with the DSHS recommendations.

The panel must submit a report to the Legislature by December 1, 2014, regarding observed changes in statewide consistency of evaluations and decisions concerning changes in the commitment status of persons found NGRI. The panel's report will also address whether the panel should be given the authority to make release decisions and monitor release conditions.

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Summary of Substitute Bill:

Evaluations and Petitions for Involuntary Treatment.

For criminal defendants who have had felony charges dismissed due to incompetency, evaluation for the purposes of filing a civil commitment petition under the ITA must occur at a state hospital, rather than a secure mental health facility or other evaluation and treatment facility.

Criminal defendants who have had serious misdemeanors dismissed due to incompetency, and who are in custody at the time of the dismissal, must also be evaluated at a state hospital unless a local evaluation and treatment facility, the regional support network, and the state hospital agree to utilize a local evaluation and treatment facility. The state hospital may also arrange to screen the defendant prior to transport to the hospital and dismiss the defendant if the commitment criteria are not met.

Grounds for Involuntary Treatment After a Felony Dismissal.

On an initial petition for commitment of a person who has had a violent felony dismissed due to incompetence, in addition to the standard criteria for commitment, the court must make a finding as to whether the acts the person committed constitute a violent offense as defined in statute.

On subsequent petitions for continued commitment of a person who has had a violent felony charge dismissed, when the court has made the additional finding at the initial petition, the person will be committed for up to an additional 180 days whenever prima facie evidence exists that the person continues to suffer from a mental disorder or developmental disability that results in a substantial likelihood of the person committing acts similar to the criminal behavior. The committed person may only challenge their continued commitment with admissible expert opinion indicating that their condition has changed such that the mental disorder or developmental disability no longer presents a substantial likelihood that they will commit acts similar to the charged criminal behavior.

Release of Involuntarily Detained People.

The prosecuting attorney of the county in which the criminal charges against the committed person were dismissed is entitled to notice of impending release, change in commitment status, or escape of a person involuntarily committed after a felony dismissal.

The jurisdiction of the independent NGRI review panel is expanded to require the panel to review decisions and provide advice regarding persons committed under the ITA where the court has made an additional finding that person committed acts constituting a violent offense. In particular, the panel must review all decisions to change the person's commitment status or to not seek further commitment. The panel's report to the Legislature will include recommendations as to whether further changes in the law are necessary to enhance public safety when incompetency prevents the operation of the criminal justice system.

Substitute Bill Compared to Original Bill:

The intent section is changed to state that persons with a mental illness or developmental disability are more likely to be victims than perpetrators of crime, and to remove language citing a risk of cyclical short-term commitment, release, and violence under the current criminal and civil systems.

The requirement that involuntary treatment evaluations of defendants who have had serious misdemeanor charges dismissed due to incompetency take place at a state hospital is modified. The state hospital may arrange for pre-transport screening of in-custody defendants, and release defendants who do not meet the commitment criteria. A local evaluation and treatment facility may be utilized for the evaluation upon agreement of the regional support network, the state hospital, and a local evaluation and treatment facility.

Language requiring the DSHS to enroll qualifying persons into developmental disability division benefits in the community when alternative program placement is not available is removed.

References to incompetence are removed from the special finding at the initial petition and from grounds for subsequent petitions for commitment of a person who has had felony charges dismissed due to incompetence. Instead, at the initial petition the court must determine whether the acts the person committed constitute a violent felony as defined in statute. Upon a subsequent petition for continued commitment of a person found at the initial petition to have committed a violent felony, the person may rebut a prima facie showing that the commitment criteria have been met with an expert opinion that the person's condition has so changed that they no longer present a substantial likelihood of committing similar acts.

Language is added specifying that subsequent terms of commitment are for "up to" 180 days.

The public safety review panel's access to records is expanded. The panel may access any records it deems necessary in reviewing changes of commitment or custody status.

Staff Summary of Public Testimony:

(In support) This bill is designed to address gap cases. When someone is not competent, they cannot be tried criminally. Instead, they are referred to the civil commitment system, from which they are often quickly released, even when the underlying charges were for extremely serious crimes. Once a person has been charged with a violent felony and they are too mentally ill to be held, they should not be released until a judge can commit them. Genuine cases of mental illness need to be handled in the civil system, and evaluations should happen in the state hospitals. There is no space in local facilities and people are sitting in hallways in emergency rooms.

The bill does not lower the standard for institutionalizing someone; instead the bill creates an additional finding when the charge was for a violent felony. The state is given a greater burden to meet upfront. Once that additional standard is met, there is a greater ability to hold the person for a longer time until the risk is addressed. This standard will not apply to many cases, but those it does apply to are especially dangerous. There will be a good return on the investment in terms of public safety.

The reworking of the intent section is a welcome change from earlier drafts of the bill. More work is needed to change references to refer to people with mental illness, which is more respectful than saying mentally ill people. The bill should also be amended to recognize that sometimes the entire 180 days is not necessary because restoration may occur more quickly than that. Additionally, there are funding issues that need to be addressed. People subject to the new standard need to produce an admissible expert opinion that they have been restored, but most people in this situation are indigent, so a provision for indigent assistance should be added.

(Other) Removing the ability to use an evaluation and treatment facility for evaluations is a good idea. The courts are ordering the ITA evaluations to happen in the emergency department, but an emergency room is not a forensic environment. There are insufficient beds and other resources to support this. Sending people to the emergency room delays treatment and puts a strain on the hospital. This bill does not change the process, just the destination. People who have been ordered for an evaluation are being turned away, which, from a public safety perspective is dangerous.

There is a problem with requiring an assessment of competency in the civil system, because this is a standard that is never dealt with in the ITA courts. That is a criminal standard. Translating that standard to the civil side will add costs, require experts, prolong hearings, and increase inpatient treatment costs. Money should be going to outpatient treatment instead. There is also a due process concern with the section of the bill regarding subsequent terms of commitment. The new standard does away with an evidentiary hearing and a trial, and reduces the burden of proof from clear, cogent, and convincing to a prima facie showing.

The bill also shifts the burden to the defense. The reference to the public safety review panel needs to be removed. Having to go through that board delays cases and that board only meets once a month.

(In support with concerns) Requiring evaluations to take place at state hospitals creates a problem for individuals who are ultimately not subject to commitment who have to be sent back. There is also a fiscal concern in that there are a limited number of beds and they serve three purposes: not guilty by reason of insanity commitment, competency evaluations and restoration, and forensic flip evaluations for felons and misdemeanants. There are competency timelines, and a lot of competition for a limited resource.

The intent behind the developmental disabilities benefits is good, but the developmental disabilities system already has a lot of people trying to get services. This creates a preference over everyone who is already waiting.

(Opposed) This proposal raises constitutional as well as capacity questions. It would be more appropriate to address the capacity problem at this time. It is probable that the problem is just being moved around, and creating delays for people awaiting competency evaluations and restoration. The current capacity issue will be aggravated without adding beds.

The initial intent section was inflammatory, and needed to be rewritten. However, fixing the intent section does not fix the constitutional problems associated with bypassing existing process. Taking away the option of the judge to allow release during the evaluation assumes dangerousness. Reducing the standard from clear and convincing to a prima facie showing is constitutionally dubious.

Using the independent public safety review panel will work as a barrier to patient recovery. This will cause delays as people wait for review, which increase expense. This idea needs further vetting.

It is unclear what developmental disability services will actually be provided. Clarification is needed in order for that language to be effective.