AN ACT Relating to the commitment of persons with developmental disabilities who are dangerous to others but incompetent to stand trial or criminally insane; adding a new chapter to title 72 RCW; and providing an expiration date.

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

NEW SECTION. Sec. 1. The Washington state legislature finds that among persons who seriously endanger the safety of others are a small number of persons with developmental disabilities. These individuals by their actions pose substantial risks of serious bodily harm both to other persons with developmental disabilities and to persons without disabilities. The conduct of these few individuals is not typical of that of the great majority of persons with developmental disabilities, who are responsible citizens of our communities. The legislature finds that to assure the safety of others may require that the state supervise and control these few dangerous individuals. The legislature also finds that any abridgement of a person's civil rights to assure the safety of others must be done carefully, at all times affording the person all due protections of law; and, further, that if the person's civil liberties are restricted, the state must do all it reasonably can to assist the individual in remedying his or her dangerous conduct, so that his or her civil liberties may be fully regained as soon as possible. The legislature further finds that the state's existing statutory authorities for criminal commitments are not applicable and not suitable for dangerous persons with developmental disabilities who have been found incompetent to stand trial or acquitted by reason of insanity, and that the state's existing civil statutory authorities to detain, commit, and treat mentally disordered or gravely disabled persons are inappropriate for developmentally disabled persons because those civil commitment authorities and the custodial and rehabilitative programs operated under those authorities are oriented to persons with mental illness. Therefore, it is the intent of the legislature to enact a civil statutory authority whereby a person with developmental disabilities, who is found by a court of law, after due protection of law, to have done a serious violent act, and to be incompetent to stand trial or criminally insane, and to pose a substantial risk of serious bodily harm to others, may be committed to the custody and control of the secretary of the department of social and health services, for purposes of assuring public safety and remedying that dangerous conduct.

NEW SECTION. Sec. 2. (1) The "least-restrictive manner" means that the habilitation and the conditions of habilitation:

(a) Are no more harsh, hazardous, or intrusive than necessary to achieve the habilitation objectives for the individual; and

(b) Involve only those restrictions on physical freedom that are reasonably necessary for the accomplishment of the habilitation objectives for the individual or for the prevention of physical injury to the individual or to other persons.

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

(3) "Developmental disability" means a disability as defined in RCW 71.20.016.

(4) "Habilitation" means the process by which developmental disabilities professionals assist individuals with developmental disabilities to acquire and maintain the life skills they need to cope with the demands of their own persons and their environments and to raise the levels of their physical, mental, and social functioning. Habilitation includes, but is not limited to, programs of formal, structured training and treatment.

(5) "Individualized habilitation plan" means a plan prepared by a qualified developmental disabilities professional with other professionals as a team, for an individual with developmental disabilities, which plan states:

(a) The nature of the person's specific problems and habilitation needs;

(b) The conditions and strategies necessary to achieve the purposes of habilitation;

(d) The rationale for using this plan of habilitation to achieve those intermediate and long-range goals;

(e) The staff responsible for carrying out the plan; and

(f) The criteria for proposed movement to less-restrictive settings, criteria for proposed eventual discharge from involuntary confinement, and a projected possible date for discharge from involuntary confinement.

(6) "Prosecutor" means the prosecutor's office which originated the criminal charge or charges.

(7) "Qualified developmental disability professional" means a person who has specialized training and three years of experience in directly treating or working with persons with developmental disabilities, and is one of the following:

(a) A psychologist with at least a master's degree from an accredited program;

(b) A licensed doctor of medicine or osteopathy;

(d) A social worker with a master's degree in:

(i) Social work from an accredited program; or

(ii) A field other than social work and at least three years of social work experience under the supervision of a qualified social worker;

(e) A physical or occupational therapist;

(f) A speech pathologist or audiologist;

(g) A registered nurse with a master's degree in nursing from an accredited program;

(h) A rehabilitation counselor who is certified by the committee on rehabilitation counselor certification.

(8) "Secretary" means the secretary of the department of social and health services.

(9) "Substantial risk of serious bodily harm" means that it is more likely than not that the individual with developmental disabilities, if not committed, will inflict serious unjustified bodily harm on another person within the reasonably foreseeable future.

NEW SECTION. Sec. 3. (1) Whenever the mental condition of a defendant is at issue under the provisions of RCW 10.77.060, and the court has reason to believe that the defendant may be developmentally diasbled, the court shall order the secretary to determine whether the defendant is developmentally disabled as defined in this chapter.

(2) If the secretary finds the person to be developmentally disabled, the court shall order the secretary to designate at least one qualified developmental disabilities professional to serve among the qualified experts or professionals who are to examine and report on the mental condition of the defendant pursuant to RCW 10.77.060. The report of the examination, pursuant to RCW 10.77.060(3) shall include a description of the defendant's disabilities, an assessment of the defendant's habilitation needs, and a description of any habilitation or special education services the defendant has received in the past.

NEW SECTION. Sec. 4. Whenever the report of an examination pursuant to RCW 10.77.060(3) has been received by the court and the secretary has found that the defendant is developmentally disabled, any subsequent commitment pursuant to RCW 10.77.090 shall include professional habilitation efforts to render the defendant competent to stand trial. An individualized habilitation plan for the defendant under such commitment shall be prepared in consultation with a qualified developmental disabilities professional designated by the secretary.

NEW SECTION. Sec. 5. (1) If a defendant has been found incompetent to stand trial because of a developmental disability following a commitment pursuant to RCW 10.77.090, and if the secretary has found the person to be developmentally disabled pursuant to section 3(1) of this act, and if the court finds that further habilitation and treatment efforts to effect competence would be futile or not permitted under law, and if the defendant had been charged with murder in the first degree, murder in the second degree, manslaughter in the first degree, manslaughter in the second degree, assault in the first degree, assault in the second degree, kidnapping in the first degree, kidnapping in the second degree, rape in the first degree, rape in the second degree, rape in the third degree, statutory rape in the first degree, statutory rape in the second degree, statutory rape in the third degree, indecent liberties, arson in the first degree, arson in the second degree, or incest, the prosecutor may petition for a commitment hearing pursuant to this section and sections 6 and 7 of this act.

(2) If a defendant is acquitted by reason of insanity, either by motion pursuant to RCW 10.77.080 or by the trier of fact, of any of the acts specified in subsection (1) of this section, and if the court finds that the acquittal was based on the defendant's developmental disability, and if the secretary has found the person to be developmentally disabled pursuant to section 3(1) of this act, the prosecutor may petition for a commitment hearing pursuant to this section and sections 6 and 7 of this act.

(3) When a court orders a commitment hearing pursuant to this section, it shall order the secretary to conduct an evaluation of the person's current mental condition, using developmental disabilities professionals and others as appropriate, to determine whether the person poses a substantial risk of serious bodily harm to others and whether the person should be committed.

(4) For purposes of this commitment hearing, the court may order that the person be temporarily confined to the custody and control of the secretary if such confinement is necessary to accomplish the court review regarding commitment for public safety, but such confinement shall not exceed thirty days. If the person is not committed, the court review regarding commitment shall be completed in thirty days. Following the evaluation the secretary shall submit a report of the evaluation to the court, and shall provide copies to the prosecutor and the person's counsel.

NEW SECTION. Sec. 6. (1) If the defendant had been acquitted by reason of insanity, the court may enter a finding, based on that verdict, that the defendant did commit the act or acts charged.

(2) If the court does not enter a finding that the defendant committed the act or acts charged pursuant to subsection (1) of this section, or if the defendant had been found incompetent to stand trial, and his or her commitment is ought pursuant to section 5(1) of this act, the court must first hear evidence and determine whether the person did commit the act or acts charged. The hearing on this issue must comply with all the procedures specified in this section. In addition, the rules of evidence applicable in criminal cases shall apply, and all constitutional rights available to defendants at criminal trials, other than the right not to be tried while incompetent, shall apply. After hearing evidence on this issue, the court shall make specific findings on whether the person did commit the act or acts charged, the extent to which the person's incompetence or developmental disability affected the outcome of the hearing, including its effect on the person's ability to consult with and assist counsel and to testify on his or her own behalf, the extent to which the evidence could be reconstructed without the assistance of the person, and the strength of the prosecution's case. If after the conclusion of the hearing on this issue, the court finds, beyond a reasonable doubt, that the person did commit the act or acts charged, it shall enter a final order, appealable by the person, on that issue, and may proceed to consider whether the person should be committed pursuant to section 7 of this act.

NEW SECTION. Sec. 7. (1) If the court has found, pursuant to section 6 (1) or (2) of this act, that the person did commit the act or acts charged, the prosecution may petition for a hearing on whether the person should be committed because he or she poses a substantial risk of serious bodily harm to others. The court shall then hold such a hearing. At the hearing, the person shall be entitled to the assistance of counsel, and if the person is indigent the court shall appoint counsel to assist him or her. The person may also retain a developmental disabilities professional or other appropriate expert to perform an examination on the person's behalf and to assist in his or her defense. If the person is indigent, the court shall upon his or her request assist the person in obtaining such a professional. An expert or professional person obtained by an indigent person pursuant to the provisions of this section shall be compensated out of funds of the department, in an amount determined by the department to be fair and reasonable. The person is also entitled to confront and cross-examine adverse witnesses. At the hearing, the person cannot be required to testify. The rules of evidence apply for such hearings, including the prohibition against hearsay testimony.

(2) If, following a hearing conducted in accordance with subsection (1) of this section, the court concludes, by clear, cogent, and convincing evidence that, principally as a result of his or her developmental disability, the person poses a substantial risk of serious bodily harm to others, and if the secretary has certified that the defendant is currently developmentally disabled, the court may order him or her committed to the custody and control of the secretary. The person has the right to an expedited appeal on the record of an adverse ruling on the issue of commitment.

(3) Any person involuntarily committed pursuant to the provisions of this chapter shall receive his or her care, habilitation, and treatment according to an individualized habilitation plan. The secretary shall provide the court and prosecutor with the committed person's initial individual habilitation plan and with any subsequent plan modifications to move the person to a less-secure setting. The secretary shall provide all such plans and modifications to the court and prosecutor in advance of their implementation. The secretary shall keep records of all medical, expert, and professional care, treatment, and habilitation received by the committed person, and shall keep copies of all reports of periodic examinations of the committed person that have been filed with the secretary pursuant to this chapter. All records and reports made pursuant to this chapter shall be made available upon request to the committed person, to his or her attorney, and to others who, upon proper showing, demonstrate a need for access to such records. All records and reports made pursuant to this chapter shall also be made available upon request to the department of corrections or the board of prison terms and paroles if the person was on parole or probation at the time of detention, hospitalization, or commitment, or if the person is subsequently convicted for the crime for which he or she was detained, hospitalized, or committed pursuant to this chapter.

(4) Any person involuntarily committed pursuant to the provisions of this chapter shall receive care and habilitation in a least-restrictive manner, consistent with the needs of public safety in individual cases.

NEW SECTION. Sec. 8. (1) The maximum duration of a commitment pursuant to section 7 of this act shall be set by the court in its initial order. That maximum duration shall be set at the discretion of the court but shall not exceed one year or the maximum possible penal sentence for the highest classed felony offense that the court found pursuant to section 6 (1) or (2) of this act that the person did commit, whichever is longer. Upon the expiration of the maximum period of commitment under this section, the person may be confined only if subsequently committed under other provisions of law.

(2) The prosecutor shall be notified by the department thirty days prior to the expiration of the commitment.

NEW SECTION. Sec. 9. (1) A person committed pursuant to section 7 of this act may petition the court for a hearing to determine whether he or she continues to meet the criteria for commitment specified in section 7(2) of this act. The committed person may petition the court for such a hearing one year after his or her original commitment and every year thereafter. At any hearing pursuant to this section, the court may issue an order allowing the committed person to petition for a rehearing sooner than the usual one-year period. The court may issue such an order when it appears that the individual's mental condition, progress in habilitation, and other relevant factors warrant more frequent review.

(2) The court shall provide the secretary and the prosecutor with copies of any such petitions and accompanying materials received from the committed person. Whenever the secretary receives such a petition, the secretary shall, within fifteen days, evaluate the person's current mental condition and provide a report and recommendation to the court.

(3) Upon the filing of such a petition, the court shall convene a hearing within thirty days. That hearing shall be conducted in accordance with the procedures set forth in section 7(1) of this act. The court, to continue the commitment order, must find by clear, cogent, and convincing evidence that the individual continues to meet the commitment criteria specified in section 7(2) of this act.

(4) Legal assistance shall be regularly available to any person committed under this chapter at the location of his or her confinement or place of habilitation. To ensure that each individual's right to periodic review is effective, each committed individual shall have ready access to counsel, including appointed counsel if he or she is indigent. When the individual is entitled to a periodic review hearing, counsel shall request a hearing on the individual's continuing need for commitment, or shall notify the court in writing that counsel has conferred with the individual and that a hearing is not requested at that time. By declining to request a hearing when the individual is entitled to periodic review, the individual does not waive the right to any subsequent hearing.

(5) Nothing in this chapter should be interpreted as limiting the right of a committed individual to petition for a writ of habeas corpus at any time.

(6) The secretary shall annually file with the court a report on the committed person's mental condition, except if the secretary has already filed such a report within the last year, pursuant to subsection (2) of this section.

NEW SECTION. Sec. 10. (1) No individual committed under the provisions of this chapter may be released except by order of a court.

(2) The court shall order the release of an individual committed under the provisions of this chapter:

(a) If, pursuant to a committed person's petition under section 9 of this act, and after considering the secretary's report and recommendation, the court finds that the committed person no longer poses a substantial risk of serious bodily harm to others, pursuant to section 7 of this act;

(b) If the court finds, upon motion by any party or on its own motion that the maximum duration of commitment set under section 8 of this act has expired; or

(c) If the court finds, upon petition by the secretary, and following a hearing that complies with the procedural requirements of section 7 of this act, that the individual no longer poses a substantial risk of serious bodily harm to others. A copy of the secretary's petition shall be served on the prosecutor, who shall have the right to respond to the petition. At such a hearing, the secretary shall have the burden of persuasion by a preponderance of the evidence.

(3) When the release of an individual committed pursuant to this chapter is imminent, the court shall so notify the prosecutor, who shall have the authority to notify relevant individuals and agencies.

NEW SECTION. Sec. 11. (1) The secretary, by January 1, 1988, shall report to the legislature on the implementation and actual use of this chapter and on recommendations for its continued use or modification. The report shall include the number of petitions for civil commitment made to the court pursuant to section 5 of this act and the numbers of persons actually committed pursuant to section 7 of this act, the crimes those persons were charged with, the findings of fact and the dispositions of those cases; also the secure and less-restrictive programs that the department has provided and anticipates requiring during the next biennium, and the estimated costs of those past and anticipated programs.

(2) The recommendations regarding the continued use or modification of this chapter shall be drawn-up by the secretary after close and frequent consultation with the developmental disabilities planning council. The secretary and the chair of the developmental disabilities planning council for the purpose of developing these recommendations shall jointly convene a temporary advisory committee which includes representation from at least: The legislature, the courts, county prosecutors, developmental disabilities advocacy groups, and civil rights advocates.

NEW SECTION. Sec. 12. Section 72.33.130, chapter 28, Laws of 1959, section 3, chapter 246, Laws of 1975 1st ex. sess., section 58, chapter 80, Laws of 1977 ex. sess. and RCW 72.33.130 are each repealed.

NEW SECTION. Sec. 13. Sections 1 through 11 of this act shall constitute a new chapter in Title 72 RCW.

NEW SECTION. Sec. 14. Sections 1 through 11 of this act shall expire June 30, 1988.

NEW SECTION. Sec. 15. 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.