HOUSE BILL REPORT

HB 1179

BYRepresentatives Crane, Winsley, Todd, Silver, Peery, Patrick, Betrozoff, Appelwick, Kremen, Ballard, P. King, Baugher, Rasmussen, Dorn, Hargrove, Jones, Moyer, Scott, Padden, Jesernig, Holland, Rayburn, May, Walk, K. Wilson, H. Myers, Rector, Brumsickle and Sprenkle

Regarding criminal mental defenses.

House Committe on Judiciary

Majority Report:  The substitute bill be substituted therefor and the substitute bill do pass.  (14)

      Signed by Representatives Appelwick, Chair; Crane, Vice Chair; Padden, Ranking Republican Member; Hargrove, Inslee, P. King, R. Meyers, Moyer, H. Myers, Patrick, Schmidt, Scott, D. Sommers and Tate.

Minority Report:  Do not pass.  (3)

      Signed by Representatives Belcher, Locke and Wineberry.

House Staff:Pat Shelledy (786-7149)

AS REPORTED BY COMMITTEE ON JUDICIARY MARCH 1, 1989

BACKGROUND:

Conviction for a crime requires the prosecution to prove beyond a reasonable doubt that the defendant committed an illegal act and possessed a requisite mental state at the time.  Various crimes require differing states of mind.  For example, first degree murder requires the state to prove the defendant had the mental states of "premeditation" and "intent"  whereas manslaughter requires only the defendant act with "criminal negligence."

The insanity defense.  Washington law allows a defendant to assert an insanity defense.  The defendant bears the burden of proving the defense by a preponderance of the evidence.  The defendant must prove that he or she suffered from a "mental disease or defect" and as a result was either "unable to perceive the nature and quality of the act with which he is charged," or was "was unable to tell right from wrong with reference to the act."  If the defendant proves the insanity defense, then the defendant is acquitted by reason of insanity.  The court may release the defendant, conditionally release the defendant, or involuntarily commit the defendant to a mental hospital for a term not to exceed the statutory maximum of the crime.  For Class A felonies, that term is 20 years to life, for Class B felonies that term is 10 years, and for Class C felonies, that term is 5 years.  A person who is involuntarily committed may periodically request the court for conditional or absolute release.  The standard for determining commitment and subsequent release is whether the defendant poses a "substantial danger to other persons" or presents a "substantial likelihood of committing felonious acts jeopardizing public safety or security."

Current case law does not allow a court to impose an insanity defense over the defendant's objection.

A defendant can ask the court for an acquittal on the basis of insanity before submitting the question to the jury.  If the court grants the defendant's motion, the defendant cannot deny that he or she committed the acts charged in the crime. If the court denies the motion, the issue can be submitted to a jury.

The "diminished capacity defense."  The defense of diminished capacity is also a mental defense but is dissimilar from the insanity defense.  The defense is not codified in statutes but has developed through case law.  The diminished capacity defense applies to those crimes that require proof of a specific mental state, such as premeditation or intent, as an element of the offense.  The defendant asserts that due to a mental disease or defect, the defendant was unable to form the requisite mental intent. In contrast to the insanity defense, the prosecution maintains the burden of proof on the mental state.  Further, a defendant who successfully maintains a diminished capacity defense is acquitted and released.

Procedural differences between insanity and diminished capacity.  When a defendant asserts an insanity defense, the defendant must notify the state of the intent to assert insanity within 10 days following arraignment.  The court may appoint at least two experts to examine the defendant's mental condition.  The state must approve the selection of one of the experts.  Each expert must provide a written report stating the expert's opinion about the mental condition of the defendant at the time of the act charged and the basis for that opinion.  In contrast, the law does not provided for similar court-appointed experts in a diminished capacity case.

SUMMARY:

SUBSTITUTE BILL:

Definitions.  The "insanity" defense is renamed the "criminal insanity" defense, and the "diminished capacity" defense is renamed the "criminal mental deficiency" defense.  "Criminal mental deficiency" is defined as a mental disease or defect that prevents a defendant from having the specific state of mind that is an element of the crime charged.

Court consideration of the insanity defense.  The court on its own or at the prosecutor's request may instruct the jury on the criminal insanity defense and order the psychiatric evaluation of the defendant over the objection of the defendant.

Procedure.  The defendant who intends to assert either an insanity or mental deficiency defense must give to the prosecution within 30 days before trial, a written report from the defense expert on the expert's findings and conclusions and the basis for those conclusions.  The state may move to have the defendant examined by a state-selected expert.  Any statement the defendant makes during that examination may be admissible only on the issue of the defendant's mental state, and may only be admitted in rebuttal after the defendant has asserted his mental defense claim.  If the defendant refuses to cooperate with the state's expert, the fact of that refusal may be admitted if the defendant pursues a mental defense at trial.  Further, the defense experts will not be allowed to testify about any information obtained from the defendant if the defendant refused to talk to the state expert on the same subject matter.  In any event, no expert will be able to render an opinion whether the defendant had the requisite mental state at the time of the act.

Statutory maximum for commitment is removed.  No restriction is placed on the length of commitment for a criminally insane or mentally deficient person.

Burden for establishing dangerousness.  In order to avoid commitment, a criminally insane or mentally deficient person must show that the defendant does not pose a substantial danger to the community and does not present a likelihood of committing felonious acts.

Motion for acquittal.  The provision that allows the defendant to ask the judge for acquittal and, if denied then to try the issue before the jury, is changed.  If both the defense and the prosecutor submit the motion to the judge, then the court can hear the motion.  If the prosecutor opposes the motion, the court cannot hear the motion and the case must proceed to trial on the issue.  The defendant must admit to committing the physical acts charged and cannot later contest detention on the ground that he or she did not commit the acts.

Commitment and treatment.  If the defendant prevails on a mental defense, then various treatment options may arise.  If the defendant is found by a preponderance of the evidence not to be likely to commit criminal acts, then the court must discharge the defendant.  If the evidence does not support an unconditional release, if the defendant committed any felony and was found criminally insane, or if the defendant committed or attempted to commit a violent offense and was found to be criminally mentally deficient, then the defendant will go to a state mental hospital unless the court or jury finds that a less restrictive treatment alternative is in the best interests of the community.  If the defendant is found criminally mentally deficient in a non-violent felony case, the court can order the defendant into outpatient treatment and hold the defendant in contempt of court for non-compliance.  In misdemeanor cases, the court must release the defendant or detain her or him long enough to have the defendant evaluated for civil commitment proceedings.

Sequence of commitment.  If a defendant is found guilty in one charge and discharged by reason of insanity or mental deficiency in another, the court is to commit the defendant to the Department of Corrections to serve time on the conviction first, and then the defendant will be transported to the state mental institution for commitment under the other charge if the terms are to run consecutively.

SUBSTITUTE BILL COMPARED TO ORIGINAL:  The original bill would have expressly allowed a court to "impose" an insanity defense on an unwilling defendant.  The original bill would have specifically identified particular states of mind to which the defense of criminal mental deficiency applies.  The original bill would have prohibited experts from "stating inferences" about whether a defendant did or did not have a particular state of mind.  The original bill would have expressly excluded defenses related to involuntary intoxication and irresistible impulses from the definitions of mental defenses.

Fiscal Note:      Available.

House Committee ‑ Testified For:    John Ladenberg and Phil Harju, WAPA.

House Committee - Testified Against:      John Zulauf, Washington Association of Criminal Defense Lawyers.

House Committee - Testimony For:    The current law allows defendants to hide their intended use of the diminished capacity defense until there is insufficient time for the prosecution to respond.  The insanity defense law gives defendants two chances to use the defense, first with the judge and then with the jury.  Many persons who are acquitted on a diminished capacity defense are dangerous, but current criminal law makes no provision for committing them to treatment.

House Committee - Testimony Against:      The current law has been developed over centuries and works very well.  It is very rare for a defendant to successfully use a mental defense.  The two mental defenses are conceptually different and trying to treat them the same procedurally is a mistake.  Civil commitment proceedings are available to protect the public from dangerous acquitted defendants.  Allowing imposition of an insanity defense is unconstitutional under a state supreme court decision.