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; creating a new section; and providing an effective date.

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

NEW SECTION. Sec. 1. The 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 ensuring the safety of others may require the state to supervise and control these few dangerous individuals. The legislature also finds that any lawful restriction of a person's civil rights to ensure 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 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 social and health services, for purposes of ensuring public safety and remedying that dangerous conduct.

NEW SECTION. Sec. 2. As used in this chapter:

(1) The "least restrictive manner" means that the habilitation and the conditions of habilitation:

(a) Are no more 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, habilitative services as defined in RCW 71.30.020, and programs of formal, structured training and treatment and shall entail such professional treatment in light of current professional standards as is likely to be most effective in eliminating the behavior that resulted in the commitment.

(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;

(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; and

(g) The type of residence immediately anticipated for the person and possible future types of residences.

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

(7) "Qualified developmental disabilities 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 registered nurse with a master's degree in nursing from an accredited program; or

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

(8) "Secretary" means the secretary 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. Evidence of actual behavior which has caused such harm or which places another person or persons in reasonable fear of sustaining such harm shall be required before the court may find that an individual more likely than not poses a "substantial risk of serious bodily harm."

NEW SECTION. Sec. 3. (1) Whenever the mental condition of a defendant is at issue under RCW 10.77.060 and the court has reason to believe that the defendant may be developmentally disabled, the court shall order the secretary to determine whether the defendant is developmentally disabled under this chapter. If the defendant appeals the secretary's determination, the court shall order the secretary to expedite the administrative review of that determination. If the defendant seeks an administrative review pursuant to chapter 34.04 RCW of the secretary's determination ordered under this section, the court shall ensure that the defendant is represented by legal counsel throughout the administrative review proceeding and may, for this purpose, appoint the defendant's criminal defense counsel to represent the defendant. If the defendant initiates an administrative review of the secretary's determination and an appeal is taken to a superior court, the court ordering the secretary's determination pursuant to this section may exercise jurisdiction over such appeal taken to the superior court pursuant to chapter 34.04 RCW.

(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 opinion as to the relationship of the defendant's disabilities to his or her mental condition, an assessment of the defendant's habilitation needs to render him or her competent, 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 pursuant to RCW 10.77.090, and if the court, based on the expert evaluations, finds that incompetence is related primarily to the defendant's developmental disability, and if the secretary has found the defendant 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 that further commitment is not permitted under RCW 10.77.090, 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, 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, indecent liberties, arson in the first degree, burglary in the first degree, or robbery in the first degree, 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, based on the expert evaluation, finds that insanity is related primarily to 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 such a commitment hearing, 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. The secretary shall submit a report of the evaluation to the court and shall provide copies to the prosecutor and the person's counsel.

(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 or for public safety, but such confinement shall not exceed thirty days. If the person is not confined, the court review regarding commitment shall be completed in thirty days.

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 sought pursuant to section 5(1) of this act, the court shall first hear evidence and determine whether the person did commit the act or acts charged. The hearing on this issue shall 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 any of the acts listed in section 5(1) of this act, 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 this section shall be compensated out of funds of the department in an amount determined by the court 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 the person poses a substantial risk of serious bodily harm to others, and if the court further concludes, based on the expert testimony, that the person's mental condition is related primarily to his or her developmental disability, 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) Each person involuntarily detained or committed pursuant to this chapter is entitled to adequate care and individualized treatment.

(4) Any person involuntarily committed pursuant to this chapter shall receive his or her care, habilitation, and treatment according to an individualized habilitation plan. The secretary shall provide the court, the committed person, his or her counsel, and the prosecutor with the committed person's initial individual habilitation plan and with any subsequent plan modifications to move the person to a more secure or less secure setting. If the committed person appeals the proposed individual habilitation plan pursuant to chapter 34.04 RCW, the court shall order the secretary to expedite the administrative review of that proposed plan. If the involuntarily committed person initiates an administrative review of the habilitation plan pursuant to chapter 34.04 RCW, any appeal to the superior court of the administrative decision shall be consolidated with the proceeding under this chapter. The secretary shall provide all such plans and modifications to all parties 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. The fact of admission and all records compiled, contained, or maintained in the course of providing services to persons involuntarily committed under this chapter shall be safeguarded in accordance with RCW 71.05.390 through 71.05.440.

(5) Any person involuntarily committed pursuant to 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 duration shall be set at the discretion of the court but shall not exceed one year or the upper end of the presumptive sentencing range, pursuant to RCW 9.94A.370, for a criminal offender who has an offender score equal to that computed for the committed person and who is convicted of 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 the care, custody, and habilitation he or she is being provided are consistent with the individual habilitation plan. The right to a hearing as specified in this section shall be in addition to, and not in lieu of, rights to administrative review under chapter 34.04 RCW or as may be available to the committed person under other provisions of state law.

(2) The committed person has a right to periodic court hearings to review his or her status, progress in accomplishing the activities and objectives specified in his or her individual habilitation plan, and whether he or she continues to meet the commitment criteria specified in section 7(2) of this act. Pursuant to this right, the court shall hold such a review hearing within six months after the person's commitment and at least every six months thereafter, until the person is released.

(3) At least thirty days before every such review hearing the court shall notify the person, his or her counsel, the secretary, and the prosecutor of the upcoming hearing, and shall order the secretary to evaluate the person's mental condition and to provide a report and recommendations to the court. The review hearing by the court 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. The committed person may request that the court appoint, as counsel, the attorney who had earlier assisted the person at the original civil commitment hearing. The court shall grant this request if it is reasonable and practicable.

(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.

NEW SECTION. Sec. 10. (1) No individual committed under this chapter may be released prior to the expiration of his or her commitment period, as determined in section 8 of this act, except by order of a court.

(2) The court shall order the release of an individual committed under 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 meets the commitment criteria specified in section 7(2) of this act; or

(b) 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 committed person, his or her counsel, and the prosecutor, who shall have the right to respond to the petition. At such a hearing, the court shall hear expert testimony from any person, including the committed person or experts, on whether the person still poses a substantial risk of serious bodily harm to others. The secretary shall have the burden of persuasion by a preponderance of the evidence.

(3) The secretary shall release the committed person when his or her commitment period, as determined in section 8 of this act, has expired.

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

NEW SECTION. Sec. 11. The commitment authorities in sections 1 through 10 of this act shall apply only to persons whose acts as determined in section 7(1) of this act were committed on or after the effective date of this section.

NEW SECTION. Sec. 12. The department shall prepare a plan for implementation of this chapter which shall be submitted to the committee on health care of the house of representatives and the committee on health care and corrections of the senate by December 1, 1988. This plan shall include consultation with the developmental disabilities planning council; Washington association of prosecuting attorneys; a representative of public defenders; a representative from developmental disabilities consumer organization; ACLU of Washington; Evergreen legal services; and other organizations with an interest in this subject.

NEW SECTION. Sec. 13. 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. 14. 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.

NEW SECTION. Sec. 15. Sections 1 through 11 of this act shall constitute a new chapter in Title 72 RCW.

NEW SECTION. Sec. 16. Sections 1 through 11 and 13 of this act shall take effect July 1, 1989, unless funds are not appropriated for their implementation by July 1, 1989, in which case sections 1 through 11 and 13 of this act shall be null and void in their entirety.