AN ACT Relating to criminal mental defenses; amending RCW 9A.12.010, 10.77.010, 10.77.020, 10.77.030, 10.77.060, 10.77.070, 10.77.150, 10.77.163, 10.77.165, and 10.77.200; adding new sections to chapter 10.77 RCW; and repealing RCW 10.77.040, 10.77.080, and 10.77.110.

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

Sec. 1. Section 9A.12.010, chapter 260, Laws of 1975 1st ex. sess. and RCW 9A.12.010 are each amended to read as follows:

To establish the defense of criminal insanity, it must be shown that:

(1) At the time of the commission of the offense, as a result of mental disease or defect, the mind of the actor was affected to such an extent that:

(a) He was unable to perceive the nature and quality of the act with which he is charged; or

(b) He was unable to tell right from wrong with reference to the particular act charged.

(2) The defense of criminal insanity must be established by a preponderance of the evidence.

Sec. 2. Section 1, chapter 117, Laws of 1973 1st ex. sess. as last amended by section 1, chapter 122, Laws of 1983 and RCW 10.77.010 are each amended to read as follows:

As used in this chapter:

(1) ((A)) "Criminally insane((")) person" means any person who has been ((acquitted of a crime charged by reason of insanity, and thereupon found to be a substantial danger to other persons or to present a substantial likelihood of committing felonious acts jeopardizing public safety or security unless kept under further control by the court or other persons or institutions)) found to be not culpable as a result of criminal insanity.

(2) "Criminal mental deficiency" means a condition in which a defendant in a criminal case, because of mental disease or defect, lacks a state of mind of premeditation, intent, knowledge, or malice required for commission of a crime charged. "Criminal mental deficiency" includes neither irresistible impulse nor a mental condition caused by voluntary consumption of drugs or alcohol on or about the time of the crime. "Criminal mental deficiency" replaces the term "diminished capacity".

(3) "Criminally mentally deficient person" means any person who has been found to be not culpable as a result of criminal mental deficiency.

(4) "Indigent" means any person who is financially unable to obtain counsel or other necessary expert or professional services without causing substantial hardship to himself or herself or his or her family.

(5) "Irresistible impulse" means an impulse induced by a mental disease or defect affecting the volitive, as distinguished from the perceptive, powers, so that the person afflicted, while able to understand the nature and consequence of the act charged against him or her and to perceive that it is wrong, is unable, because of such mental disease, to resist the impulse to do it.

((~~(3)~~)) (6) "Secretary" means the secretary of the department of social and health services or ((~~his~~)) the secretary's designee.

((~~(4)~~)) (7) "Department" means the state department of social and health services.

((~~(5)~~)) (8) "Mental disease or defect" does not include an abnormality manifested only by criminal or other antisocial conduct. "Mental disease or defect" does not include an irresistible impulse or mental condition caused by voluntary consumption of drugs or alcohol on or about the time of the crime.

(9) "Treatment" means any currently standardized medical or mental health procedure including medication.

((~~(6)~~)) (10) "Incompetency" means a person lacks the capacity to understand the nature of the proceedings against him or her or to assist in his or her own defense as a result of mental disease or defect.

((~~(7)~~)) (11) No condition of mind proximately induced by the voluntary act of a person charged with a crime shall constitute "criminal insanity" or "criminal mental deficiency."

((~~(8)~~)) (12) "Furlough" means an authorized leave of absence for a resident of a state institution designated for the custody, care, and treatment of the criminally insane, consistent with an order of conditional release from the court under this chapter, without any requirement that the resident be accompanied by, or be in the custody of, any law enforcement or institutional staff, while on such unescorted leave.

Sec. 3. Section 2, chapter 117, Laws of 1973 1st ex. sess. as amended by section 2, chapter 198, Laws of 1974 ex. sess. and RCW 10.77.020 are each amended to read as follows:

(1) At any and all stages of the proceedings pursuant to this chapter, any person subject to the provisions of this chapter shall be entitled to the assistance of counsel, and if the person is indigent the court shall appoint counsel to assist him or her. A person may waive ((~~his~~)) the right to counsel; but such waiver shall only be effective if a court makes a specific finding that ((he)) the person is or was competent to so waive. In making such findings, the court shall be guided but not limited by the following standards: Whether the person attempting to waive the assistance of counsel, does so understanding:

(a) The nature of the charges;

(b) The statutory offense included within them;

(d) Possible defenses to the charges and circumstances in mitigation thereof; and

(e) All other facts essential to a broad understanding of the whole matter.

(2) Whenever any person is subjected to an examination pursuant to any provision of this chapter, ((he)) the person may retain an expert or professional person to perform an examination in his or her behalf. In the case of a person who is indigent, the court shall upon ((~~his~~)) request assist the person in obtaining an expert or professional person to perform an examination or participate in the hearing on his or her behalf. An expert or professional person obtained by an indigent person pursuant to the provisions of this chapter shall be compensated for his or her services out of funds of the department, in an amount determined by it to be fair and reasonable.

(3) ((Whenever any person has been committed under any provision of this chapter, or ordered to undergo alternative treatment following his acquittal of a crime charged by reason of insanity, such commitment or treatment cannot exceed the maximum possible penal sentence for any offense charged for which he was acquitted by reason of insanity. If at the end of that period the person has not been finally discharged and is still in need of commitment or treatment, civil commitment proceedings may be instituted, if appropriate.

~~(4)~~)) Any time the defendant is being examined by court appointed experts or professional persons pursuant to the provisions of this chapter, ((he)) the defendant shall be entitled to have his or her attorney present. ((~~The defendant may refuse to answer any question if he believes his answers may tend to incriminate him or form links leading to evidence of an incriminating nature.~~)) No statement made by the defendant in the course of any examination provided for by this chapter and done without the consent of the defendant, no testimony by the expert based upon such statement, and no other fruits of the statement may be admitted in evidence against the defendant in any criminal proceeding except on an issue respecting mental condition on which the defendant has introduced testimony. Any statement made by a defendant during an examination provided for by this chapter and fruits of such statement may be used in any proceeding if voluntarily made with the defendant's consent and otherwise admissible.

Sec. 4. Section 3, chapter 117, Laws of 1973 1st ex. sess. as amended by section 3, chapter 198, Laws of 1974 ex. sess. and RCW 10.77.030 are each amended to read as follows:

(1) Evidence of criminal insanity or criminal mental deficiency is not admissible unless the defendant, at the time of arraignment or within ten days thereafter or at such later time as the court may for good cause permit, files a written notice of ((~~his~~)) intent to rely on such a defense. In a case in which the defense of either criminal insanity or criminal mental deficiency is raised, the defendant shall disclose to the prosecuting attorney the following information no later than thirty days prior to trial: (a) For any expert witness, a written report substantially in the form described in RCW 10.77.060; (b) the facts and data underlying the expert's testimony; and (c) the names and addresses of persons who the defendant intends to call as witnesses, together with any written or recorded statements and the substance of any oral statements of such witnesses. Delay resulting from a defendant's failure to disclose in a timely manner shall be excluded in computing the time for arraignment and time for trial under the applicable court rule.

(2) Criminal insanity is a defense ((~~which the defendant~~)) that the party asserting it must establish by a preponderance of the evidence.

(3) Criminal mental deficiency is a defense that is limited to attacking the mental states of premeditation, intent, malice, or knowledge required for commission of the crime charged, and evidence of criminal mental deficiency is not admissible as a defense against any other mental state.

(4) If the defendant is found to be criminally insane in a prosecution of a felony or is found to be criminally mentally deficient in a prosecution for a violent crime, the defendant shall be ordered to undergo mental health treatment unless it is established by a preponderance of the evidence that the defendant is not likely to commit criminal acts jeopardizing persons or property. If this is not established, a defendant found to be criminally insane in a prosecution for a felony shall be detained in a state mental hospital unless it is established by a preponderance of the evidence that it is in the best interest of the community to place the defendant in less-restrictive treatment.

NEW SECTION. Sec. 5. No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state constituting an element of the crime charged. Such an ultimate issue is a matter for the trier of fact alone.

NEW SECTION. Sec. 6. (1) Whenever the issue of criminal insanity is submitted to the jury, the court shall instruct the jury to return a special verdict in substantially the following form:

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@h1 @i9!ir12,2 1. !tlDid the defendant commit the crime charged?

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@i9!ir12,2 2. !tlIf your answer to number 1 is yes, do you find the defendant was criminally insane at the time of the crime charged?

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@i9!ir12,2 3. !tlIf you find the defendant criminally insane (answer to number 2 is yes), do you find that the defendant is not likely to commit criminal acts jeopardizing persons or property?

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@i9!ir12,2 4. !tlIf your answer to question number 3 is no, do you find that it is in the best interest of the community that the defendant be placed in less-restrictive treatment than detention in a state mental institution?

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(2) If the trial was by the court, the judge shall enter findings in substantially the same form as provided in subsection (1) of this section.

NEW SECTION. Sec. 7. (1) Whenever the issue of criminal mental deficiency is submitted to the jury, the court shall instruct the jury to return a special verdict in substantially the following form:

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@h1 @i9!ir12,2 1. !tlDo you find beyond a reasonable doubt that the defendant committed the physical acts necessary for the crime charged?

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@i9!ir12,2 2. !tlIf your answer to number 1 is yes, do you find beyond a reasonable doubt that the defendant possessed the mental state necessary for the crime charged?

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@i9!ir12,2 3. !tlIf your answer to number 2 is no, do you find the defendant was criminally mentally deficient at the time of the crime charged?

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@i9!ir12,2 4. !tlIf you find the defendant criminally mentally deficient (answer to number 3 is yes), do you find that the defendant is not likely to commit criminal acts jeopardizing persons or property?

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@i9!ir12,2 5. !tlIf your answer to question number 3 is no, do you find that it is in the best interest of the community that the defendant be placed in less-restrictive treatment than detention in a state mental institution?

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(2) If the trial was by the court, the judge shall enter findings in substantially the same form as subsection (1) of this section.

NEW SECTION. Sec. 8. (1) On the motion of the prosecuting attorney or its own motion before trial begins, the court may impose the defense of criminal insanity over the defendant's objection. In exercising its discretion to assert the defense, the court shall consider relevant factors that may include: (a) The quality of the evidence supporting the criminal insanity defense; (b) the quality of the defendant's decision not to raise the defense; (c) the defendant's motives in opposing presentation of the defense; and (d) the court's personal observations of the defendant throughout the course of the proceedings.

(2) In a jury trial, the defense may be asserted by the court by means of instructing the jury in the law of the criminal insanity defense and submitting to the jury the special verdict form set forth in section 6 of this act. In a trial without a jury, the defense may be asserted by the court by means of applying the law of the criminal insanity defense to the facts adduced at trial. In both a jury trial and nonjury trial context, whenever the court asserts the defense on the motion of the prosecuting attorney, the court shall permit the prosecuting attorney to produce evidence bearing upon the criminal insanity defense.

(3) Delay resulting from the imposition of the insanity defense by the court and the need to provide time to prepare for trial shall be excluded in computing the time for arraignment and trial under the applicable court rule.

Sec. 9. Section 6, chapter 117, Laws of 1973 1st ex. sess. as amended by section 6, chapter 198, Laws of 1974 ex. sess. and RCW 10.77.060 are each amended to read as follows:

(1) Whenever a defendant has ((~~pleaded not guilty by reason of insanity~~)) indicated an intention to rely upon the defense of criminal insanity or criminal mental deficiency or there is substantial reason to believe the mental defense of criminal insanity might be imposed over the defendant's objection, or there is reason to doubt ((~~his~~)) the defendant's competency, the court on its own motion or on the motion of any party shall either appoint or request the secretary to designate at least two qualified experts or professional persons, one of whom shall be approved by the prosecuting attorney, to examine and report upon the mental condition of the defendant. For purposes of the examination, the court may order the defendant committed to a hospital or other suitable facility for a period of time necessary to complete the examination, but not to exceed fifteen days.

(2) The court may direct that a qualified expert or professional person retained by or appointed for the defendant be permitted to witness the examination authorized by subsection (1) of this section, and that he or she shall have access to all information obtained by the court appointed experts or professional persons. The defendant's expert or professional person shall have the right to file his or her own report following the guidelines of subsection (3) of this section. If the defendant is indigent, the court shall upon the request of the defendant assist ((~~him~~)) in obtaining an expert or professional person.

(3) The report of the examination shall include the following:

(a) A description of the nature of the examination;

(b) A diagnosis of the mental condition of the defendant;

(d) When directed by the court or if the defendant has indicated ((~~his~~)) an intention to rely on the defense of criminal insanity pursuant to RCW 10.77.030, an opinion as to the defendant's sanity at the time of the act;

(e) When directed by the court or if the defendant has indicated an intention to rely on the defense of criminal mental deficiency, an opinion as to the capacity of the defendant to have a particular state of mind which is an element of the offense charged;

(f) An opinion as to whether the defendant is a substantial danger to other persons, or presents a substantial likelihood of committing felonious acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions.

(4) If the examination cannot be conducted by reason of the unwillingness of the defendant to participate, the report shall so state.

Sec. 10. Section 7, chapter 117, Laws of 1973 1st ex. sess. and RCW 10.77.070 are each amended to read as follows:

(1) When the defendant wishes to be examined by a qualified expert or professional person of his or her own choice, such examiner shall be permitted to have reasonable access to the defendant for the purpose of such examination, as well as to all relevant medical and psychological records and reports.

(2) If the defendant has indicated an intention to rely on the defense of criminal insanity or criminal mental deficiency or if there is substantial reason to believe the defendant was criminally insane or criminally mentally deficient at the time of the crime or crimes charged, the court on the motion of the state shall order the defendant to submit to examinations by one or more qualified expert or professional person of the prosecuting attorney's choice. If the defendant refuses to answer any or all questions during the examination by the prosecution's expert or professional person, the fact of that refusal shall be admitted into evidence on any issue respecting mental condition on which the defendant has introduced testimony. No defense expert or professional person may be permitted to testify about information provided by the defendant to the defense expert or professional person or render opinions or inferences derived from that information unless the defendant answers questions by the prosecution's expert or professional person on the same subject matter. The prosecution's expert or professional persons shall be permitted to have reasonable access to the defendant for the purpose of the examination, as well as to all relevant medical, psychiatric, and psychological records and reports.

NEW SECTION. Sec. 11. (1) The prosecution and the defendant may jointly move the court for a judgment to find the defendant criminally insane. However, both the prosecution and the defendant must stipulate that the defendant committed the act upon which the offense charged is based and further stipulate that the defendant was criminally insane at the time of the offense with which he or she is charged. A defendant so found shall not later contest the validity of his or her detention on the grounds that he or she did not commit the act upon which the offense charged was based. If the court finds that the defendant is criminally insane, it shall enter specific findings in substantially the same form as set forth in section 6 of this act. If the prosecution does not join in the motion or if the motion is denied, the question of the defendant's sanity may be submitted to the trier of fact in the same manner as other issues of fact.

(2) The prosecution and the defendant may jointly move the court for a judgment to find the defendant criminally mentally deficient. However, both the prosecutor and defendant must stipulate that the defendant committed the physical acts necessary for the offense charged and further stipulate that, solely because of criminal mental deficiency existing at the time of the offense charged, the defendant did not possess the mental state necessary for the offense with which he or she is charged. A defendant so found shall not later contest his or her detention on the grounds that he or she did not commit the physical acts necessary for the offense charged. If the court finds that the defendant is criminally mentally deficient, it shall enter specific findings in substantially the same form as set forth in section 7 of this act. If the prosecutor does not join in the motion or if the joint motion is denied, the question of the defendant's criminal mental deficiency may be submitted to the trier of fact in the same manner as other issues of fact.

NEW SECTION. Sec. 12. (1) If the defendant in a felony prosecution is found to be criminally insane or criminally mentally deficient and it is found by a preponderance of the evidence that he or she is not likely to commit criminal acts jeopardizing persons or property, the court shall direct the defendant's final discharge on the crime charged.

(2) If the defendant in a felony prosecution for any crime is found criminally insane or a defendant in a felony prosecution for a violent crime against persons or an attempted violent crime against persons is found criminally mentally deficient and has not been proved to be unlikely to commit criminal acts jeopardizing persons or property by a preponderance of the evidence, the factfinder shall determine whether a preponderance of the evidence establishes that it is in the best interest of the community to place the defendant in less-restrictive treatment than a state mental hospital. If the factfinder determines that less-restrictive treatment is in the best interest of the community, the court shall order the defendant's conditional release. If the factfinder determines that less-restrictive treatment is not in the best interest of the community, the court shall order the defendant committed to the secretary to be placed in an appropriate mental institution for care, custody, and treatment.

If a defendant in a felony prosecution for a nonviolent crime is found criminally mentally deficient, the court may order out-patient treatment for the defendant only if treatment is required. If a defendant declines to cooperate with the conditions of release ordered, the court may find the defendant in contempt and order confinement in the county jail.

For purposes of this section, violent crime means a violent offense as defined by RCW 9.94A.030(29), and any other felony crime involving assaultive or sexually exploitive behavior which is a felony under the laws of the state of Washington.

(3) If the defendant is found to be criminally insane or criminally mentally deficient in a prosecution for a crime that is not a felony, the court shall order the defendant's release or order the defendant's continued custody only for a reasonable time to allow the county designated mental health professional to evaluate the individual and to proceed with civil commitment pursuant to chapter 71.05 RCW, if considered appropriate.

(4) If a defendant is convicted of one or more crimes and in the prosecution for another crime or crimes is found to be criminally insane or criminally mentally deficient, the following sequence for treatment and incarceration shall apply:

(a) The court shall determine in accordance with RCW 9.94A.400 whether the sentences and period of treatment shall be served concurrently or consecutively.

(b) Any period of total inpatient treatment resulting from a finding of criminal insanity or criminal mental deficiency shall be served after any period of incarceration resulting from conviction on another crime.

(c) The court shall designate the order in which periods of conditional release and of community supervision shall be served.

Sec. 13. Section 15, chapter 117, Laws of 1973 1st ex. sess. as last amended by section 1, chapter 112, Laws of 1982 and RCW 10.77.150 are each amended to read as follows:

(1) Persons examined pursuant to RCW 10.77.140, as now or hereafter amended, may make application to the secretary for conditional release. The secretary shall, after considering the reports of experts or professional persons conducting the examination pursuant to RCW 10.77.140, forward to the court of the county which ordered ((~~his~~)) the commitment the person's application for conditional release as well as ((~~his~~)) the secretary's recommendations concerning the application and any proposed terms and conditions upon which ((he)) the secretary reasonably believes the person can be conditionally released. Conditional release may also contemplate partial release for work, training, or educational purposes.

(2) The court of the county which ordered ((~~his~~)) the commitment, upon receipt of an application for conditional release with the secretary's recommendation for conditional release, shall within thirty days schedule a hearing. The court may schedule a hearing on applications recommended for disapproval by the secretary. The prosecuting attorney shall represent the state at such hearings and shall have the right to have the patient examined by an expert or professional person of ((~~his~~)) the prosecuting attorney's choice. If the committed person is indigent, and ((he)) so requests, the court shall appoint a qualified expert or professional person to examine ((~~him~~)) the committed person on his or her behalf. The issue to be determined at such a hearing is whether or not the person may be released conditionally without substantial danger to other persons, or substantial likelihood of committing felonious acts jeopardizing public safety or security. The court, after the hearing, shall rule on the secretary's recommendations, and if it disapproves of conditional release, may do so only on the basis of substantial evidence. The court may modify the suggested terms and conditions on which the person is to be conditionally released. Pursuant to the determination of the court after hearing, the committed person shall thereupon be released on such conditions as the court determines to be necessary, or shall be remitted to the custody of the secretary.

(3) If the court determines that receiving regular or periodic medication or other medical treatment shall be a condition of the committed person's release, then the court shall require him or her to report to a physician or other person for the medication or treatment. In addition to submitting any report required by RCW 10.77.160, the physician or other person shall immediately upon the released person's failure to appear for the medication or treatment report the failure to the court and to the prosecuting attorney of the county in which the released person was committed.

(4) Any person, whose application for conditional release has been denied, may reapply after a period of six months from the date of denial.

Sec. 14. Section 2, chapter 122, Laws of 1983 and RCW 10.77.163 are each amended to read as follows:

The superintendent of each state institution designated for the custody, care, and treatment of the criminally insane or criminally mentally deficient shall notify appropriate law enforcement agencies through the state patrol communications network of the furloughs of persons committed under RCW 10.77.090 or ((~~10.77.110~~)) section 12 of this 1989 act. Notification shall be made at least forty-eight hours before the furlough, and shall include the name of the person, the place to which the person has permission to go, and the dates and times during which the person will be on furlough. For emergency furloughs, forty-eight hours notice is not required, but notice shall be made before the departure.

Sec. 15. Section 3, chapter 122, Laws of 1983 and RCW 10.77.165 are each amended to read as follows:

In the event of an escape by a criminally insane or criminally mentally deficient person from a state institution or the disappearance of such a person on conditional release, the superintendent shall notify as appropriate, local law enforcement officers, other governmental agencies, the person's relatives, and any other appropriate persons about information necessary for the public safety or to assist in the apprehension of the person.

Sec. 16. Section 20, chapter 117, Laws of 1973 1st ex. sess. as last amended by section 2, chapter 25, Laws of 1983 and RCW 10.77.200 are each amended to read as follows:

(1) Upon application by the criminally insane or ((~~conditionally released~~)) criminally mentally deficient person, the secretary shall determine whether or not reasonable grounds exist for final discharge. If the secretary approves the final discharge ((he)), the secretary then shall authorize said person to petition the court.

(2) The petition shall be served upon the court and the prosecuting attorney. The court, upon receipt of the petition for final discharge, shall within forty-five days order a hearing. Continuance of the hearing date shall only be allowed for good cause shown. The prosecuting attorney shall represent the state, and shall have the right to have the petitioner examined by an expert or professional person of ((~~his~~)) the prosecuting attorney's choice. If the petitioner is indigent, and ((he)) so requests, the court shall appoint a qualified expert or professional person to examine him or her. The hearing shall be before a jury if demanded by either the petitioner or the prosecuting attorney. The burden of proof shall be upon the petitioner to show by a preponderance of the evidence that the petitioner may be finally discharged without ((~~substantial danger to other persons, and without presenting a substantial~~)) likelihood of committing ((~~felonious~~)) criminal acts jeopardizing ((~~public safety or security, unless kept under further control by the court or other persons or institutions~~)) persons or property.

(3) Nothing contained in this chapter shall prohibit the patient from petitioning the court for final discharge or conditional release from the institution in which he or she is committed. ((The issue to be determined on such proceeding is whether the petitioner is a substantial danger to other persons, or presents a substantial likelihood of committing felonious acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions.)) If the petition is for final discharge, the hearing shall be conducted in the manner provided under subsection (2) of this section. If the petition is for conditional release, the hearing shall be conducted in accordance with RCW 10.77.150.

Nothing contained in this chapter shall prohibit the committed person from petitioning for release by writ of habeas corpus.

NEW SECTION. Sec. 17. Sections 5 through 8, 11, and 12 of this act are each added to chapter 10.77 RCW.

NEW SECTION. Sec. 18. The following acts or parts of acts are each repealed:

(1) Section 4, chapter 117, Laws of 1973 1st ex. sess., section 4, chapter 198, Laws of 1974 ex. sess. and RCW 10.77.040;

(2) Section 8, chapter 117, Laws of 1973 1st ex. sess., section 7, chapter 198, Laws of 1974 ex. sess. and RCW 10.77.080; and

(3) Section 11, chapter 117, Laws of 1973 1st ex. sess., section 10, chapter 198, Laws of 1974 ex. sess., section 4, chapter 215, Laws of 1979 ex. sess., section 1, chapter 25, Laws of 1983 and RCW 10.77.110.

NEW SECTION. Sec. 19. 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.