BILL REQ. #: S-4006.2
| State of Washington | 60th Legislature | 2008 Regular Session |
Read first time 01/15/08. Referred to Committee on Human Services & Corrections.
AN ACT Relating to reform of competency evaluation and competency restoration procedures; amending RCW 10.77.060, 10.77.065, 10.77.084, 10.77.086, 10.77.088, 10.77.010, 10.77.092, 10.77.097, 10.77.163, 71.05.235, 71.05.280, 71.05.290, 71.05.300, 71.05.320, 71.05.425, 71.09.025, 71.09.030, and 71.09.060; adding new sections to chapter 10.77 RCW; creating a new section; and repealing RCW 10.77.260 and 10.77.800.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 101 RCW 10.77.060 and 2004 c 9 s 1 are each amended to read
as follows:
(1)(a) Whenever ((a defendant has pleaded not guilty by reason of
insanity, or)) there is reason to doubt ((his or her)) a 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)) one qualified expert((s)) or professional person((s, one of
whom shall be approved by the prosecuting attorney,)) to examine and
report upon the mental condition of the defendant. The signed order of
the court shall serve as authority for the expert((s)) to be given
access to all records held by any mental health, medical, educational,
or correctional facility that relate to the present or past mental,
emotional, or physical condition of the defendant. ((At least one of
the experts or professional persons appointed shall be a developmental
disabilities professional if the court is advised by any party that the
defendant may be developmentally disabled. Upon agreement of the
parties, the court may designate one expert or professional person to
conduct the examination and report on the mental condition of the
defendant. For purposes of the examination, the court may order the
defendant committed to))
(b) If at any point the expert or professional person becomes aware
that the defendant may be developmentally disabled, or if it appears
that the characteristics of developmental disability may be a
significant factor in the defendant's ability to participate in the
criminal proceeding, the evaluation shall be performed by or in
conjunction with a developmental disabilities professional.
(c) If the defendant is being held in jail or other detention
facility, the examination shall be held in the jail or other detention
facility unless, upon motion, a party establishes good cause for the
examination to take place in a hospital or other suitably secure public
or private mental health facility ((for a period of time necessary to
complete the examination, but not to)). If the court orders the
evaluation to take place in a hospital or mental health facility, the
commitment for the evaluation shall not exceed fifteen days from the
time of admission to the facility. ((If the defendant is being held in
jail or other detention facility, upon agreement of the parties, the
court may direct that the examination be conducted at the jail or other
detention facility.))
(b) When a defendant is ordered to be committed for inpatient
examination under this subsection (1), the court may delay granting
bail until the defendant has been evaluated for competency or sanity
and appears before the court. Following the evaluation, in determining
bail the court shall consider: (i) Recommendations of the expert or
professional persons regarding the defendant's competency, sanity, or
diminished capacity; (ii) whether the defendant has a recent history of
one or more violent acts; (iii) whether the defendant has previously
been acquitted by reason of insanity or found incompetent; (iv) whether
it is reasonably likely the defendant will fail to appear for a future
court hearing; and (v) whether the defendant is a threat to public
safety.
(d) The order shall be served upon the secretary or his or her
designee along with a copy of the charging document, certification of
probable cause, police report, and a summary of the defendant's
criminal history as soon as possible, and no later than three business
days after it is signed. From the time of service of these documents,
the evaluation report shall be completed within twenty-one days if the
examination is to be held in a jail or other detention facility or
within thirty days if the examination is to be held in a hospital or
mental health facility. If during an examination held in a jail or
other detention facility the secretary determines that it is necessary
to admit the defendant into a hospital or secure mental health facility
to complete the examination, the secretary shall immediately notify all
parties and arrange for the defendant to be committed to such facility
for a period not to exceed fifteen days, and the evaluation report
shall be completed within thirty days of such notification. The time
limits in this section shall not include any time during which the
secretary is unable to admit the defendant into a hospital or secure
mental health facility because it has not received medical screening
information from the jail. Should the secretary fail to meet these
time periods, a party may seek an order to compel as the sole remedy.
Upon a showing of good cause, the court may extend the time period for
completion of the examination.
(e) In addition to the information required to be provided to the
secretary pursuant to (d) of this subsection, the court or any party
may provide any additional information which it reasonably deems may be
of assistance to the examination, unless such action would infringe on
the ethical duties of defense counsel.
(f) Upon agreement by all parties, the court may appoint a
qualified expert or professional person to fulfill the duties of this
section instead of requesting the secretary to designate a qualified
expert or professional person.
(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 the defendant shall have access to all information obtained by
the ((court appointed experts or professional persons)) examiner. 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 or her 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;
(c) If the defendant suffers from a mental disease or defect, or is
developmentally disabled, an opinion as to competency;
(d) ((If the defendant has indicated his or her intention to rely
on the defense of insanity pursuant to RCW 10.77.030, an opinion as to
the defendant's sanity at the time of the act;)) An opinion as to whether the defendant should be evaluated by
a ((
(e) When directed by the court, 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)county)) designated mental health professional under chapter 71.05
RCW((, and an opinion as to whether the defendant is a substantial
danger to other persons, or presents a substantial likelihood of
committing criminal acts jeopardizing public safety or security, unless
kept under further control by the court or other persons or
institutions)).
(4) The secretary may execute such agreements as appropriate and
necessary to implement this section.
Sec. 102 RCW 10.77.065 and 2000 c 74 s 2 are each amended to read
as follows:
(1)(a)(i) The ((facility conducting the evaluation)) qualified
expert or professional person shall provide ((its)) his or her report
and recommendation to the court in which the criminal proceeding is
pending. A copy of the report and recommendation shall be provided to
the ((county designated mental health professional, the)) prosecuting
attorney, the defense attorney, and the professional person at the
local correctional facility where the defendant is being held, or if
there is no professional person, to the person designated under (a)(ii)
of this subsection. Upon request, the ((facility)) secretary shall
((also)) provide copies of the report and recommendation and copies of
any source documents relevant to the evaluation to the ((county))
designated mental health professional. The report and recommendation
shall be provided not less than twenty-four hours preceding the
transfer of the defendant to the correctional facility in the county in
which the criminal proceeding is pending.
(ii) If there is no professional person at the local correctional
facility, the local correctional facility shall designate a
professional person as defined in RCW 71.05.020 or, in cooperation with
the regional support network, a professional person at the regional
support network to receive the report and recommendation.
(iii) When a defendant is transferred to ((the facility
conducting)) a hospital or other mental health facility for the
evaluation, or upon commencement of a defendant's evaluation in the
local correctional facility, the local correctional facility must
notify the evaluator or the facility conducting the evaluation of the
name of the professional person, or person designated under (a)(ii) of
this subsection to receive the report and recommendation.
(b) If the ((facility concludes, under RCW 10.77.060(3)(f), the
person should be kept under further control, an evaluation shall be
conducted of such person)) evaluation report recommends that the
defendant should be referred for evaluation by a designated mental
health professional under chapter 71.05 RCW((.)), the court shall order
an evaluation be conducted by the ((appropriate county)) designated
mental health professional((: (i))) prior to the defendant's release
from confinement ((for such person who is convicted, if sentenced to
confinement for twenty-four months or less; (ii) for any person who is
acquitted; or (iii) for any person: (A) Whose charges are dismissed
pursuant to RCW 10.77.090(4); or (B) whose nonfelony charges are
dismissed)) following any conviction, dismissal, or acquittal, unless
the defendant is sentenced to confinement for more than twenty-four
months. A defendant may not be detained in jail longer than twenty-four hours following entry of an order of dismissal for this
evaluation.
(2) The ((county)) designated mental health professional shall
provide written notification within twenty-four hours of the results of
the determination whether to commence proceedings under chapter 71.05
RCW. The notification shall be provided to the persons identified in
subsection (1)(a) of this section.
(3) The ((prosecuting attorney)) petitioner in a proceeding under
subsection (2) of this section shall provide a copy of the results of
any proceedings commenced by the ((county)) designated mental health
professional under subsection (2) of this section to the ((facility
conducting the evaluation under this chapter)) secretary.
(4) The fact of admission and all information and records compiled,
obtained, or maintained in the course of providing services under this
chapter may also be disclosed to the courts solely to prevent the entry
of any evaluation or treatment order that is inconsistent with any
order entered under chapter 71.05 RCW.
Sec. 103 RCW 10.77.084 and 2007 c 375 s 3 are each amended to
read as follows:
(1)(a) If at any time during the pendency of an action and prior to
judgment the court finds, following a report as provided in RCW
10.77.060, a defendant is incompetent, the court shall order the
proceedings against the defendant be stayed except as provided in
subsection (4) of this section. The court shall then order the
defendant to undergo a period of treatment for restoration of
competency, if permitted, within the time limits established by RCW
10.77.086 and 10.77.088 and the requirements of this section.
(b) ((A defendant found incompetent shall be evaluated at the
direction of the secretary and a determination made whether the
defendant is an individual with a developmental disability. Such
evaluation and determination shall be accomplished as soon as possible
following the court's placement of the defendant in the custody of the
secretary.)) At the end of the ((
(i) When appropriate, and subject to available funds, if the
defendant is determined to be an individual with a developmental
disability, he or she may be placed in a program specifically reserved
for the treatment and training of persons with developmental
disabilities where the defendant shall have the right to habilitation
according to an individualized service plan specifically developed for
the particular needs of the defendant. A copy of the evaluation shall
be sent to the program.
(A) The program shall be separate from programs serving persons
involved in any other treatment or habilitation program.
(B) The program shall be appropriately secure under the
circumstances and shall be administered by developmental disabilities
professionals who shall direct the habilitation efforts.
(C) The program shall provide an environment affording security
appropriate with the charged criminal behavior and necessary to protect
the public safety.
(ii) The department may limit admissions of such persons to this
specialized program in order to ensure that expenditures for services
do not exceed amounts appropriated by the legislature and allocated by
the department for such services.
(iii) The department may establish admission priorities in the
event that the number of eligible persons exceeds the limits set by the
department.
(c)mental health treatment and)) competency
restoration period ordered under (a) of this subsection, or at any time
a professional person determines competency has been, or is unlikely to
be, restored, the defendant shall be returned to court for a hearing.
If, after notice and hearing, the court finds that competency has been
restored, the stay entered under (a) of this subsection shall be
lifted. ((If competency has not been restored, the proceedings shall
be dismissed.)) If the court ((concludes)) finds that competency has
not been restored, but that further treatment within the time limits
established by RCW 10.77.086 or 10.77.088 is likely to restore
competency, the court may order ((that)) the defendant to undergo an
additional period of treatment for purposes of competency restoration
((be continued. Such treatment may not extend beyond the combination
of time provided for in RCW 10.77.086 or 10.77.088)).
(((d))) (c) If at any time during the proceeding the court finds,
following notice and hearing, ((a)) the defendant is not likely to
regain competency, or that the defendant is not competent and not
eligible for further competency restoration, or is not competent and
has not been ordered to receive competency restoration treatment, the
((proceedings)) charges shall be dismissed without prejudice and ((the
defendant shall be evaluated for civil commitment proceedings.)):
(i) If the charge was a felony, the defendant shall be detained and
transported to a state hospital or other suitably secure mental health
facility for purposes of filing a petition under chapter 71.05 RCW.
The defendant may not be detained in jail for more than seven days
prior to transport under this subsection (1)(c)(i); if transport has
not occurred within seven days the defendant shall be released.
(ii) If the charge was a nonfelony, and was a serious offense as
defined by RCW 10.77.092 and the defendant was in custody and not on
conditional release at the time of dismissal, the defendant shall be
detained and transported to an evaluation and treatment facility for
purposes of filing a petition under chapter 71.05 RCW. The defendant
may not be detained in jail for more than three days, excluding
holidays, prior to transport under this subsection (1)(c)(ii); if
transport has not occurred within three days the defendant shall be
released. The defendant may be detained at the evaluation and
treatment facility for up to seventy-two hours, excluding Saturdays,
Sundays, and holidays, for evaluation prior to the filing of a petition
under chapter 71.05 RCW.
(iii) If the charge was a nonfelony, and the charge was not a
serious offense as defined by RCW 10.77.092 or the defendant was on
conditional release at the time of dismissal, the court may order the
defendant to be evaluated by a designated mental health professional,
and shall do so if required by RCW 10.77.065(1)(b). The defendant may
not be detained in jail longer than twenty-four hours following entry
of the order of dismissal for evaluation under this subsection
(1)(c)(iii).
(d) Notwithstanding the provisions of (a) and (b) of this
subsection, if the defendant has multiple pending criminal charges, the
length of competency restoration treatment available for all charges
shall be the longest treatment period ordered for any of the charges.
(2) If the defendant is referred to the designated mental health
professional for consideration of initial detention proceedings under
chapter 71.05 RCW pursuant to this chapter, the designated mental
health professional shall provide prompt written notification of the
results of the determination whether to commence initial detention
proceedings under chapter 71.05 RCW and whether the ((person))
defendant was detained. The notification shall be provided to the
court in which the criminal action was pending, the prosecutor in the
criminal action, the defense attorney in the criminal action, and the
((facility that evaluated the defendant for competency)) secretary.
(3) ((The fact)) A finding that the defendant is ((unfit to
proceed)) not competent does not preclude any pretrial proceedings
which do not require the personal participation of the defendant.
(4) A defendant receiving medication for either physical or mental
problems shall not be prohibited from standing trial, if the medication
either enables the defendant to understand the proceedings against him
or her and to assist in his or her own defense, or does not disable him
or her from so understanding and assisting in his or her own defense.
(5) At or before the conclusion of any ((commitment)) competency
restoration period provided for by ((this section)) RCW 10.77.086 or
RCW 10.77.088, the facility providing evaluation and treatment shall
provide to the court a written report of examination which meets the
requirements of RCW 10.77.060(3).
Sec. 104 RCW 10.77.086 and 2007 c 375 s 4 are each amended to
read as follows:
(((1))) If ((the)) a defendant is charged with a felony and
determined to be incompetent((,)):
(1) Until he or she has regained the competency necessary to
understand the proceedings against him or her and assist in his or her
own defense, or has been determined to be unlikely to regain competency
((pursuant to RCW 10.77.084(1)(c))), but in any event for a period of
no longer than ninety days, the court((: (a))) shall commit the
defendant to the custody of the secretary who shall place such
defendant in an appropriate facility of the department for evaluation
and treatment((;)), or (((b))) may alternatively order the defendant to
undergo evaluation and treatment at some other facility as determined
by the department, or under the guidance and control of a professional
person.
(2) On or before expiration of the initial ninety-day period of
commitment under subsection (1) of this section the secretary shall
provide the court and the parties with a report in accordance with RCW
10.77.060(3). The secretary shall return the defendant to court
((shall conduct)) for a hearing as provided by RCW 10.77.084(1)(b), at
which ((it)) the court shall determine by a preponderance of the
evidence whether or not the defendant is incompetent.
(3) If the court finds ((by a preponderance of the evidence)) that
((a)) the defendant ((charged with a felony is)) remains incompetent,
the court ((shall have the option of extending the)) may order ((of
commitment or alternative)) a second period of competency restoration
treatment for an additional ((ninety-day)) period of up to ninety days.
In determining whether a second ninety-day period of competency
restoration is appropriate, the court shall consider the nature of the
allegations, the defendant's criminal history, and the public interest
to be served by further competency restoration treatment. If treatment
is extended, ((but)) the court must at the time of extension set a date
for a prompt hearing to determine the defendant's competency before the
expiration of the second ninety-day period. The defendant, the
defendant's attorney, or the prosecutor has the right to demand that
the hearing be before a jury. No extension shall be ordered for a
second ninety-day period, nor for any subsequent period as provided in
subsection (4) of this section, if the defendant's incompetence has
been determined by the secretary to be solely the result of a
developmental disability which is such that competence is not
reasonably likely to be regained during an extension.
(4) ((For persons charged with a felony, at the hearing upon the
expiration of the second ninety-day period or at the end of the first
ninety-day period, in the case of a defendant with a developmental
disability, if the jury or court finds that the defendant is
incompetent, the charges shall be dismissed without prejudice, and
either civil commitment proceedings shall be instituted or the court
shall order the release of the defendant. The criminal charges shall
not be dismissed)) If, following the second ninety-day period, the
court finds that the defendant remains incompetent, the court may order
a third and final period of competency restoration treatment for the
defendant only if the court or jury finds that: (a) The defendant (i)
is a substantial danger to other persons; or (ii) presents a
substantial likelihood of committing criminal acts jeopardizing public
safety or security; and (b) there is a substantial probability that the
defendant will regain competency within a reasonable period of time.
In the event that the court or jury makes such a finding, the court may
extend the period of commitment for up to an additional six months. A
third period of competency restoration shall not be ordered for any
offense which does not fit one of the categories of offenses identified
in RCW 10.77.092.
Sec. 105 RCW 10.77.088 and 2007 c 375 s 5 are each amended to
read as follows:
(1)(((a))) If the defendant is charged with a nonfelony crime which
is a serious offense as ((identified in)) defined by RCW 10.77.092 and
is found by the court to be not competent, then the court shall order
the secretary to place the defendant:
(((i))) (a) At a secure mental health facility in the custody of
the department or an agency designated by the department for mental
health treatment and restoration of competency. The placement shall
not exceed ((fourteen)) twenty days ((in addition to any unused time of
the evaluation under RCW 10.77.060. The court shall compute this total
period and include its computation in the order)). The ((fourteen-day)) twenty-day period ((plus any unused time of the evaluation under
RCW 10.77.060)) shall be considered to include only the time the
defendant is actually at the facility and shall be in addition to
reasonable time for transport to or from the facility; or
(((ii))) (b) On conditional release for up to ninety days for
mental health treatment and restoration of competency((; or)).
(iii) Any combination of this subsection.
(b)(i) If the proceedings are dismissed under RCW 10.77.084 and the
defendant was on conditional release at the time of dismissal, the
court shall order the designated mental health professional within that
county to evaluate the defendant pursuant to chapter 71.05 RCW. The
evaluation may be conducted in any location chosen by the professional.
(ii) If the defendant was in custody and not on conditional release
at the time of dismissal, the defendant shall be detained and sent to
an evaluation and treatment facility for up to seventy-two hours,
excluding Saturdays, Sundays, and holidays, for evaluation for purposes
of filing a petition under chapter 71.05 RCW. The seventy-two-hour
period shall commence upon the next nonholiday weekday following the
court order and shall run to the end of the last nonholiday weekday
within the seventy-two-hour period
(2) If the defendant is charged with a nonfelony crime that is not
a serious offense as defined in RCW 10.77.092((:)), the defendant is not eligible for competency
restoration treatment.
The court may stay or dismiss proceedings and detain the defendant
for sufficient time to allow the designated mental health professional
to evaluate the defendant and consider initial detention proceedings
under chapter 71.05 RCW. The court must give notice to all parties at
least twenty-four hours before the dismissal of any proceeding under
this subsection, and provide an opportunity for a hearing on whether to
dismiss the proceedings
NEW SECTION. Sec. 106 A new section is added to chapter 10.77
RCW to read as follows:
(1)(a) Whenever a defendant has pleaded not guilty by reason of
insanity or has advised the court that he or she intends to rely upon
a defense of diminished capacity, the court, on motion of the
prosecuting attorney, shall either appoint or request the secretary to
designate at least one qualified expert or professional person to
examine and report upon the mental condition of the defendant. The
signed order of the court shall serve as authority for the expert to be
given access to all records held by any mental health, medical,
educational, or correctional facility that relate to the present or
past mental, emotional, or physical condition of the defendant.
(b) The department shall not be obliged to examine and report upon
a defense of diminished capacity unless provided with an evaluation and
report by a qualified expert or professional person which concludes
that the defendant did lack the capacity at the time of the offense to
form the mental state necessary to commit the crime charged. The
department shall not be obliged to examine and report upon a defense of
diminished capacity for any charged offense that lacks a mental state
element.
(c) The order shall be served upon the secretary or his or her
designee along with a copy of the charging document, certification of
probable cause, police report, and a summary of the defendant's
criminal history. In addition, the court or any party may provide any
additional information which it reasonably deems may be of assistance
to the examination, unless such action would infringe on the ethical
duties of defense counsel.
(2) 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;
(c) If the defendant suffers from a mental disease or defect, or is
developmentally disabled, an opinion as to competency;
(d) If the defendant has indicated his or her intention to rely on
the defense of insanity pursuant to RCW 10.77.030, an opinion as to the
defendant's sanity at the time of the act, and an opinion as to whether
the defendant is a substantial danger to other persons, or presents a
substantial likelihood of committing criminal acts jeopardizing public
safety or security, unless kept under further control by the court or
other persons or institutions;
(e) When directed by the court, subject to the restrictions of (b)
of this subsection, 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 should be evaluated by
a designated mental health professional under chapter 71.05 RCW.
(3) 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 the defendant has access to all information obtained by the
examiner. The defendant's expert or professional person has the right
to file his or her own report following the guidelines of subsection
(2) of this section. If the defendant is indigent, the court shall
upon the request of the defendant assist him or her in obtaining an
expert or professional person.
NEW SECTION. Sec. 107 A new section is added to chapter 10.77
RCW to read as follows:
Statements made by a defendant during a competency evaluation,
competency hearing, or competency restoration treatment are not
admissible for the purpose of proving that the defendant is guilty of
the charges which gave rise to the evaluation; provided that such
statements may be admitted to impeach testimony by the defendant or to
rebut evidence offered by the defendant at trial.
NEW SECTION. Sec. 108 A new section is added to chapter 10.77
RCW to read as follows:
Any defendant placed in the custody of the secretary for competency
restoration treatment shall be evaluated at the direction of the
secretary as soon as possible and a determination made whether the
defendant is an individual with a developmental disability.
(1) When appropriate, and subject to available funds, if the
defendant is determined to be an individual with a developmental
disability, he or she may be placed in a program specifically reserved
for the treatment and training of persons with developmental
disabilities where the defendant has the right to habilitation
according to an individualized service plan specifically developed for
the particular needs of the defendant. A copy of the evaluation shall
be sent to the program.
(a) The program shall be separate from programs serving persons
involved in any other treatment or habilitation program.
(b) The program shall be appropriately secure under the
circumstances and shall be administered by developmental disabilities
professionals who shall direct the habilitation efforts.
(c) The program shall provide an environment affording security
appropriate with the charged criminal behavior and necessary to protect
the public safety.
(2) The department may limit admissions of such persons to this
specialized program in order to ensure that expenditures for services
do not exceed amounts appropriated by the legislature and allocated by
the department for such services.
(3) The department may establish admission priorities in the event
that the number of eligible persons exceeds the limits set by the
department.
NEW SECTION. Sec. 109 A new section is added to chapter 10.77
RCW to read as follows:
Whenever a jail receives notice of an order requiring transport of
a defendant to a state hospital or other medical facility pursuant to
RCW 10.77.060(1) (c) or (d) or 10.77.084(1)(c) (i) or (ii), the jail
shall transmit all medical screening information necessary to the
transfer to the secretary within three days.
Sec. 201 RCW 10.77.010 and 2005 c 504 s 106 are each amended to
read as follows:
As used in this chapter:
(1) "Admission" means acceptance based on medical necessity, of a
person as a patient.
(2) "Commitment" means the determination by a court that a person
should be detained for a period of either evaluation or treatment, or
both, in an inpatient or a less-restrictive setting.
(3) "Conditional release" means modification of a court-ordered
commitment, which may be revoked upon violation of any of its terms.
(4) 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 criminal acts jeopardizing public safety or
security unless kept under further control by the court or other
persons or institutions.
(5) "Department" means the state department of social and health
services.
(6) "Designated mental health professional" has the same meaning as
provided in RCW 71.05.020.
(7) "Detention" or "detain" means the lawful confinement of a
person, under the provisions of this chapter, pending evaluation.
(8) "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
a psychiatrist or psychologist, or a social worker, and such other
developmental disabilities professionals as may be defined by rules
adopted by the secretary.
(9) "Developmental disability" means the condition as defined in
RCW 71A.10.020(3).
(10) "Discharge" means the termination of hospital medical
authority. The commitment may remain in place, be terminated, or be
amended by court order.
(11) "Furlough" means an authorized leave of absence for a resident
of a state institution operated by the department 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.
(12) "Habilitative services" means those services provided by
program personnel to assist persons in acquiring and maintaining life
skills and in raising their levels of physical, mental, social, and
vocational functioning. Habilitative services include education,
training for employment, and therapy. The habilitative process shall
be undertaken with recognition of the risk to the public safety
presented by the person being assisted as manifested by prior charged
criminal conduct.
(13) (("History of one or more violent acts" means violent acts
committed during: (a) The ten-year period of time prior to the filing
of criminal charges; plus (b) the amount of time equal to time spent
during the ten-year period in a mental health facility or in
confinement as a result of a criminal conviction.)) "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.
(14)
(((15))) (14) "Indigent" means any person who is financially unable
to obtain counsel or other necessary expert or professional services
without causing substantial hardship to the person or his or her
family.
(((16))) (15) "Individualized service plan" means a plan prepared
by a developmental disabilities professional with other professionals
as a team, for an individual with developmental disabilities, which
shall state:
(a) The nature of the person's specific problems, prior charged
criminal behavior, and habilitation needs;
(b) The conditions and strategies necessary to achieve the purposes
of habilitation;
(c) The intermediate and long-range goals of the habilitation
program, with a projected timetable for the attainment;
(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) Where relevant in light of past criminal behavior and due
consideration for public safety, the criteria for proposed movement to
less-restrictive settings, criteria for proposed eventual release, and
a projected possible date for release; and
(g) The type of residence immediately anticipated for the person
and possible future types of residences.
(((17))) (16) "Professional person" means:
(a) A psychiatrist licensed as a physician and surgeon in this
state who has, in addition, completed three years of graduate training
in psychiatry in a program approved by the American medical association
or the American osteopathic association and is certified or eligible to
be certified by the American board of psychiatry and neurology or the
American osteopathic board of neurology and psychiatry;
(b) A psychologist licensed as a psychologist pursuant to chapter
18.83 RCW; or
(c) A social worker with a master's or further advanced degree from
an accredited school of social work or a degree deemed equivalent under
rules adopted by the secretary.
(((18))) (17) "Registration records" include all the records of the
department, regional support networks, treatment facilities, and other
persons providing services to the department, county departments, or
facilities which identify persons who are receiving or who at any time
have received services for mental illness.
(((19))) (18) "Release" means legal termination of the court-ordered commitment under the provisions of this chapter.
(((20))) (19) "Secretary" means the secretary of the department of
social and health services or his or her designee.
(((21))) (20) "Treatment" means any currently standardized medical
or mental health procedure including medication.
(((22))) (21) "Treatment records" include registration and all
other records concerning persons who are receiving or who at any time
have received services for mental illness, which are maintained by the
department, by regional support networks and their staffs, and by
treatment facilities. Treatment records do not include notes or
records maintained for personal use by a person providing treatment
services for the department, regional support networks, or a treatment
facility if the notes or records are not available to others.
(((23) "Violent act" means behavior that: (a)(i) Resulted in; (ii)
if completed as intended would have resulted in; or (iii) was
threatened to be carried out by a person who had the intent and
opportunity to carry out the threat and would have resulted in,
homicide, nonfatal injuries, or substantial damage to property; or (b)
recklessly creates an immediate risk of serious physical injury to
another person. As used in this subsection, "nonfatal injuries" means
physical pain or injury, illness, or an impairment of physical
condition. "Nonfatal injuries" shall be construed to be consistent
with the definition of "bodily injury," as defined in RCW 9A.04.110.))
Sec. 202 RCW 10.77.092 and 2004 c 157 s 3 are each amended to
read as follows:
(1) For purposes of determining whether a court may authorize
involuntary medication for the purpose of competency restoration
pursuant to RCW ((10.77.090)) 10.77.084, a pending charge involving any
one or more of the following crimes is a serious offense per se in the
context of competency restoration:
(a) Any violent offense, sex offense, serious traffic offense, and
most serious offense, as those terms are defined in RCW 9.94A.030;
(b) Any offense, except nonfelony counterfeiting offenses, included
in crimes against persons in RCW 9.94A.411;
(c) Any offense contained in chapter 9.41 RCW (firearms and
dangerous weapons);
(d) Any offense listed as domestic violence in RCW 10.99.020;
(e) Any offense listed as a harassment offense in chapter 9A.46
RCW;
(f) Any violation of chapter 69.50 RCW that is a class B felony; or
(g) Any city or county ordinance or statute that is equivalent to
an offense referenced in this subsection.
(2)(a) In a particular case, a court may determine that a pending
charge not otherwise defined as serious by state or federal law or by
a city or county ordinance is, nevertheless, a serious offense within
the context of competency restoration treatment when the conduct in the
charged offense falls within the standards established in (b) of this
subsection.
(b) To determine that the particular case is a serious offense
within the context of competency restoration, the court must consider
the following factors and determine that one or more of the following
factors creates a situation in which the offense is serious:
(i) The charge includes an allegation that the defendant actually
inflicted bodily or emotional harm on another person or that the
defendant created a reasonable apprehension of bodily or emotional harm
to another;
(ii) The extent of the impact of the alleged offense on the basic
human need for security of the citizens within the jurisdiction;
(iii) The number and nature of related charges pending against the
defendant;
(iv) The length of potential confinement if the defendant is
convicted; and
(v) The number of potential and actual victims or persons impacted
by the defendant's alleged acts.
Sec. 203 RCW 10.77.097 and 2000 c 74 s 4 are each amended to read
as follows:
A copy of relevant records and reports as defined by the
department, in consultation with the department of corrections, made
pursuant to this chapter, and including relevant information necessary
to meet the requirements of RCW 10.77.065(1) and ((10.77.090))
10.77.084, shall accompany the defendant upon transfer to a mental
health facility or a correctional institution or facility.
Sec. 204 RCW 10.77.163 and 1994 c 129 s 4 are each amended to
read as follows:
(1) Before a person committed under this chapter is permitted
temporarily to leave a treatment facility for any period of time
without constant accompaniment by facility staff, the superintendent,
professional person in charge of a treatment facility, or his or her
professional designee shall in writing notify the prosecuting attorney
of any county to which the person is released and the prosecuting
attorney of the county in which the criminal charges against the
committed person were dismissed, of the decision conditionally to
release the person. The notice shall be provided at least forty-five
days before the anticipated release and shall describe the conditions
under which the release is to occur.
(2) In addition to the notice required by subsection (1) of this
section, the superintendent of each state institution designated for
the custody, care, and treatment of persons committed under this
chapter shall notify appropriate law enforcement agencies through the
state patrol communications network of the furloughs of persons
committed under RCW ((10.77.090)) 10.77.084 or 10.77.110. Notification
shall be made at least thirty days 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.
(3) Upon receiving notice that a person committed under this
chapter is being temporarily released under subsection (1) of this
section, the prosecuting attorney may seek a temporary restraining
order to prevent the release of the person on the grounds that the
person is dangerous to self or others.
(4) The notice requirements contained in this section shall not
apply to emergency medical furloughs.
(5) The existence of the notice requirements contained in this
section shall not require any extension of the release date in the
event the release plan changes after notification.
(6) The notice provisions of this section are in addition to those
provided in RCW 10.77.205.
Sec. 205 RCW 71.05.235 and 2005 c 504 s 708 are each amended to
read as follows:
(1) If an individual is referred to a designated mental health
professional under RCW ((10.77.090(1)(d)(iii)(A)))
10.77.084(1)(c)(iii), the designated mental health professional shall
examine the individual within forty-eight hours. If the designated
mental health professional determines it is not appropriate to detain
the individual or petition for a ninety-day less restrictive
alternative under RCW 71.05.230(4), that decision shall be immediately
presented to the superior court for hearing. The court shall hold a
hearing to consider the decision of the designated mental health
professional not later than the next judicial day. At the hearing the
superior court shall review the determination of the designated mental
health professional and determine whether an order should be entered
requiring the person to be evaluated at an evaluation and treatment
facility. No person referred to an evaluation and treatment facility
may be held at the facility longer than seventy-two hours.
(2) If an individual is placed in an evaluation and treatment
facility under RCW ((10.77.090(1)(d)(iii)(B))) 10.77.084(1)(c)(ii), a
professional person shall evaluate the individual for purposes of
determining whether to file a ninety-day inpatient or outpatient
petition under chapter 71.05 RCW. Before expiration of the seventy-two
hour evaluation period authorized under RCW ((10.77.090(1)(d)(iii)(B)))
10.77.084(1)(c)(ii), the professional person shall file a petition or,
if the recommendation of the professional person is to release the
individual, present his or her recommendation to the superior court of
the county in which the criminal charge was dismissed. The superior
court shall review the recommendation not later than forty-eight hours,
excluding Saturdays, Sundays, and holidays, after the recommendation is
presented. If the court rejects the recommendation to unconditionally
release the individual, the court may order the individual detained at
a designated evaluation and treatment facility for not more than a
seventy-two hour evaluation and treatment period and direct the
individual to appear at a surety hearing before that court within
seventy-two hours, or the court may release the individual but direct
the individual to appear at a surety hearing set before that court
within eleven days, at which time the prosecutor may file a petition
under this chapter for ninety-day inpatient or outpatient treatment.
If a petition is filed by the prosecutor, the court may order that the
person named in the petition be detained at the evaluation and
treatment facility that performed the evaluation under this subsection
or order the respondent to be in outpatient treatment. If a petition
is filed but the individual fails to appear in court for the surety
hearing, the court shall order that a mental health professional or
peace officer shall take such person or cause such person to be taken
into custody and placed in an evaluation and treatment facility to be
brought before the court the next judicial day after detention. Upon
the individual's first appearance in court after a petition has been
filed, proceedings under RCW 71.05.310 and 71.05.320 shall commence.
For an individual subject to this subsection, the prosecutor or
professional person may directly file a petition for ninety-day
inpatient or outpatient treatment and no petition for initial detention
or fourteen-day detention is required before such a petition may be
filed.
The court shall conduct the hearing on the petition filed under
this subsection within five judicial days of the date the petition is
filed. The court may continue the hearing upon the written request of
the person named in the petition or the person's attorney, for good
cause shown, which continuance shall not exceed five additional
judicial days. If the person named in the petition requests a jury
trial, the trial shall commence within ten judicial days of the date of
the filing of the petition. The burden of proof shall be by clear,
cogent, and convincing evidence and shall be upon the petitioner. The
person shall be present at such proceeding, which shall in all respects
accord with the constitutional guarantees of due process of law and the
rules of evidence pursuant to RCW 71.05.360 (8) and (9).
During the proceeding the person named in the petition shall
continue to be detained and treated until released by order of the
court. If no order has been made within thirty days after the filing
of the petition, not including any extensions of time requested by the
detained person or his or her attorney, the detained person shall be
released.
(3) If a designated mental health professional or the professional
person and prosecuting attorney for the county in which the criminal
charge was dismissed or attorney general, as appropriate, stipulate
that the individual does not present a likelihood of serious harm or is
not gravely disabled, the hearing under this section is not required
and the individual, if in custody, shall be released.
(4) The individual shall have the rights specified in RCW 71.05.360
(8) and (9).
Sec. 206 RCW 71.05.280 and 1998 c 297 s 15 are each amended to
read as follows:
At the expiration of the fourteen-day period of intensive
treatment, a person may be confined for further treatment pursuant to
RCW 71.05.320 if:
(1) Such person after having been taken into custody for evaluation
and treatment has threatened, attempted, or inflicted: (a) Physical
harm upon the person of another or himself or herself, or substantial
damage upon the property of another, and (b) as a result of mental
disorder presents a likelihood of serious harm; or
(2) Such person was taken into custody as a result of conduct in
which he or she attempted or inflicted physical harm upon the person of
another or himself or herself, or substantial damage upon the property
of others, and continues to present, as a result of mental disorder, a
likelihood of serious harm; or
(3) Such person has been determined to be incompetent and criminal
charges have been dismissed pursuant to RCW ((10.77.090(4)))
10.77.084(1)(c), and has committed acts constituting a felony, and as
a result of a mental disorder, presents a substantial likelihood of
repeating similar acts. In any proceeding pursuant to this subsection
it shall not be necessary to show intent, willfulness, or state of mind
as an element of the crime; or
(4) Such person is gravely disabled.
Sec. 207 RCW 71.05.290 and 1998 c 297 s 16 are each amended to
read as follows:
(1) At any time during a person's fourteen day intensive treatment
period, the professional person in charge of a treatment facility or
his or her professional designee or the ((county)) designated mental
health professional may petition the superior court for an order
requiring such person to undergo an additional period of treatment.
Such petition must be based on one or more of the grounds set forth in
RCW 71.05.280.
(2) The petition shall summarize the facts which support the need
for further confinement and shall be supported by affidavits signed by
two examining physicians, or by one examining physician and examining
mental health professional. The affidavits shall describe in detail
the behavior of the detained person which supports the petition and
shall explain what, if any, less restrictive treatments which are
alternatives to detention are available to such person, and shall state
the willingness of the affiant to testify to such facts in subsequent
judicial proceedings under this chapter.
(3) If a person has been determined to be incompetent pursuant to
RCW ((10.77.090(4))) 10.77.084(1)(c), then the professional person in
charge of the treatment facility or his or her professional designee or
the ((county)) designated mental health professional may directly file
a petition for one hundred eighty day treatment under RCW 71.05.280(3).
No petition for initial detention or fourteen day detention is required
before such a petition may be filed.
Sec. 208 RCW 71.05.300 and 2006 c 333 s 303 are each amended to
read as follows:
(1) The petition for ninety day treatment shall be filed with the
clerk of the superior court at least three days before expiration of
the fourteen-day period of intensive treatment. At the time of filing
such petition, the clerk shall set a time for the person to come before
the court on the next judicial day after the day of filing unless such
appearance is waived by the person's attorney, and the clerk shall
notify the designated mental health professional. The designated
mental health professional shall immediately notify the person
detained, his or her attorney, if any, and his or her guardian or
conservator, if any, the prosecuting attorney, and the regional support
network administrator, and provide a copy of the petition to such
persons as soon as possible. The regional support network
administrator or designee may review the petition and may appear and
testify at the full hearing on the petition.
(2) At the time set for appearance the detained person shall be
brought before the court, unless such appearance has been waived and
the court shall advise him or her of his or her right to be represented
by an attorney and of his or her right to a jury trial. If the
detained person is not represented by an attorney, or is indigent or is
unwilling to retain an attorney, the court shall immediately appoint an
attorney to represent him or her. The court shall, if requested,
appoint a reasonably available licensed physician, psychologist, or
psychiatrist, designated by the detained person to examine and testify
on behalf of the detained person.
(3) The court may, if requested, also appoint a professional person
as defined in RCW 71.05.020 to seek less restrictive alternative
courses of treatment and to testify on behalf of the detained person.
In the case of a ((developmentally disabled)) person with a
developmental disability who has been determined to be incompetent
pursuant to RCW ((10.77.090(4))) 10.77.084(1)(c), then the appointed
professional person under this section shall be a developmental
disabilities professional.
(4) The court shall also set a date for a full hearing on the
petition as provided in RCW 71.05.310.
Sec. 209 RCW 71.05.320 and 2006 c 333 s 304 are each amended to
read as follows:
(1) If the court or jury finds that grounds set forth in RCW
71.05.280 have been proven and that the best interests of the person or
others will not be served by a less restrictive treatment which is an
alternative to detention, the court shall remand him or her to the
custody of the department or to a facility certified for ninety day
treatment by the department for a further period of intensive treatment
not to exceed ninety days from the date of judgment: PROVIDED, That
(a) If the grounds set forth in RCW 71.05.280(3) are the basis of
commitment, then the period of treatment may be up to but not exceed
one hundred eighty days from the date of judgment in a facility
certified for one hundred eighty day treatment by the department.
(b) If the committed person ((is developmentally disabled)) has a
developmental disability and has been determined incompetent pursuant
to RCW ((10.77.090(4))) 10.77.084(1)(c), and the best interests of the
person or others will not be served by a less-restrictive treatment
which is an alternative to detention, the court shall remand him or her
to the custody of the department or to a facility certified for one
hundred eighty-day treatment by the department. When appropriate and
subject to available funds, treatment and training of such persons must
be provided in a program specifically reserved for the treatment and
training of ((developmentally disabled)) persons with developmental
disabilities. A person so committed shall receive habilitation
services pursuant to an individualized service plan specifically
developed to treat the behavior which was the subject of the criminal
proceedings. The treatment program shall be administered by
developmental disabilities professionals and others trained
specifically in the needs of ((developmentally disabled)) persons with
developmental disabilities. The department may limit admissions to
this specialized program in order to ensure that expenditures for
services do not exceed amounts appropriated by the legislature and
allocated by the department for such services. The department may
establish admission priorities in the event that the number of eligible
persons exceeds the limits set by the department. An order for
treatment less restrictive than involuntary detention may include
conditions, and if such conditions are not adhered to, the designated
mental health professional or developmental disabilities professional
may order the person apprehended under the terms and conditions of RCW
71.05.340.
(2) If the court or jury finds that grounds set forth in RCW
71.05.280 have been proven, but finds that treatment less restrictive
than detention will be in the best interest of the person or others,
then the court shall remand him or her to the custody of the department
or to a facility certified for ninety day treatment by the department
or to a less restrictive alternative for a further period of less
restrictive treatment not to exceed ninety days from the date of
judgment: PROVIDED, That if the grounds set forth in RCW 71.05.280(3)
are the basis of commitment, then the period of treatment may be up to
but not exceed one hundred eighty days from the date of judgment.
(3) The person shall be released from involuntary treatment at the
expiration of the period of commitment imposed under subsection (1) or
(2) of this section unless the superintendent or professional person in
charge of the facility in which he or she is confined, or in the event
of a less restrictive alternative, the designated mental health
professional or developmental disabilities professional, files a new
petition for involuntary treatment on the grounds that the committed
person;
(a) During the current period of court ordered treatment: (i) Has
threatened, attempted, or inflicted physical harm upon the person of
another, or substantial damage upon the property of another, and (ii)
as a result of mental disorder or developmental disability presents a
likelihood of serious harm; or
(b) Was taken into custody as a result of conduct in which he or
she attempted or inflicted serious physical harm upon the person of
another, and continues to present, as a result of mental disorder or
developmental disability a likelihood of serious harm; or
(c) Is in custody pursuant to RCW 71.05.280(3) and as a result of
mental disorder or developmental disability presents a substantial
likelihood of repeating similar acts considering the charged criminal
behavior, life history, progress in treatment, and the public safety;
or
(d) Continues to be gravely disabled.
If the conduct required to be proven in (b) and (c) of this
subsection was found by a judge or jury in a prior trial under this
chapter, it shall not be necessary to reprove that element. Such new
petition for involuntary treatment shall be filed and heard in the
superior court of the county of the facility which is filing the new
petition for involuntary treatment unless good cause is shown for a
change of venue. The cost of the proceedings shall be borne by the
state.
The hearing shall be held as provided in RCW 71.05.310, and if the
court or jury finds that the grounds for additional confinement as set
forth in this subsection are present, the court may order the committed
person returned for an additional period of treatment not to exceed one
hundred eighty days from the date of judgment. At the end of the one
hundred eighty day period of commitment, the committed person shall be
released unless a petition for another one hundred eighty day period of
continued treatment is filed and heard in the same manner as provided
in this subsection. Successive one hundred eighty day commitments are
permissible on the same grounds and pursuant to the same procedures as
the original one hundred eighty day commitment.
(4) No person committed as provided in this section may be detained
unless a valid order of commitment is in effect. No order of
commitment can exceed one hundred eighty days in length.
Sec. 210 RCW 71.05.425 and 2005 c 504 s 710 are each amended to
read as follows:
(1)(a) Except as provided in subsection (2) of this section, at the
earliest possible date, and in no event later than thirty days before
conditional release, final release, authorized leave under RCW
71.05.325(2), or transfer to a facility other than a state mental
hospital, the superintendent shall send written notice of conditional
release, release, authorized leave, or transfer of a person committed
under RCW 71.05.280(3) or 71.05.320(((2))) (3)(c) following dismissal
of a sex, violent, or felony harassment offense pursuant to RCW
((10.77.090(4))) 10.77.084(1)(c) to the following:
(i) The chief of police of the city, if any, in which the person
will reside; and
(ii) The sheriff of the county in which the person will reside.
(b) The same notice as required by (a) of this subsection shall be
sent to the following, if such notice has been requested in writing
about a specific person committed under RCW 71.05.280(3) or
71.05.320(((2))) (3)(c) following dismissal of a sex, violent, or
felony harassment offense pursuant to RCW ((10.77.090(4)))
10.77.084(1)(c):
(i) The victim of the sex, violent, or felony harassment offense
that was dismissed pursuant to RCW ((10.77.090(4))) 10.77.084(1)(c)
preceding commitment under RCW 71.05.280(3) or 71.05.320(((2))) (3)(c)
or the victim's next of kin if the crime was a homicide;
(ii) Any witnesses who testified against the person in any court
proceedings; and
(iii) Any person specified in writing by the prosecuting attorney.
Information regarding victims, next of kin, or witnesses requesting the
notice, information regarding any other person specified in writing by
the prosecuting attorney to receive the notice, and the notice are
confidential and shall not be available to the person committed under
this chapter.
(c) The thirty-day notice requirements contained in this subsection
shall not apply to emergency medical transfers.
(d) The existence of the notice requirements in this subsection
will not require any extension of the release date in the event the
release plan changes after notification.
(2) If a person committed under RCW 71.05.280(3) or
71.05.320(((2))) (3)(c) following dismissal of a sex, violent, or
felony harassment offense pursuant to RCW ((10.77.090(4)))
10.77.084(1)(c) escapes, the superintendent shall immediately notify,
by the most reasonable and expedient means available, the chief of
police of the city and the sheriff of the county in which the person
resided immediately before the person's arrest. If previously
requested, the superintendent shall also notify the witnesses and the
victim of the sex, violent, or felony harassment offense that was
dismissed pursuant to RCW ((10.77.090(4))) 10.77.084(1)(c) preceding
commitment under RCW 71.05.280(3) or 71.05.320(((2))) (3) or the
victim's next of kin if the crime was a homicide. In addition, the
secretary shall also notify appropriate parties pursuant to RCW
71.05.390(18). If the person is recaptured, the superintendent shall
send notice to the persons designated in this subsection as soon as
possible but in no event later than two working days after the
department learns of such recapture.
(3) If the victim, the victim's next of kin, or any witness is
under the age of sixteen, the notice required by this section shall be
sent to the parent or legal guardian of the child.
(4) The superintendent shall send the notices required by this
chapter to the last address provided to the department by the
requesting party. The requesting party shall furnish the department
with a current address.
(5) For purposes of this section the following terms have the
following meanings:
(a) "Violent offense" means a violent offense under RCW 9.94A.030;
(b) "Sex offense" means a sex offense under RCW 9.94A.030;
(c) "Next of kin" means a person's spouse, parents, siblings, and
children;
(d) "Felony harassment offense" means a crime of harassment as
defined in RCW 9A.46.060 that is a felony.
Sec. 211 RCW 71.09.025 and 2001 c 286 s 5 are each amended to
read as follows:
(1)(a) When it appears that a person may meet the criteria of a
sexually violent predator as defined in RCW 71.09.020(((1))) (16), the
agency with jurisdiction shall refer the person in writing to the
prosecuting attorney of the county where that person was charged, three
months prior to:
(i) The anticipated release from total confinement of a person who
has been convicted of a sexually violent offense;
(ii) The anticipated release from total confinement of a person
found to have committed a sexually violent offense as a juvenile;
(iii) Release of a person who has been charged with a sexually
violent offense and who has been determined to be incompetent to stand
trial pursuant to RCW ((10.77.090(4))) 10.77.084(1)(c); or
(iv) Release of a person who has been found not guilty by reason of
insanity of a sexually violent offense pursuant to RCW 10.77.020(3).
(b) The agency shall provide the prosecutor with all relevant
information including but not limited to the following information:
(i) A complete copy of the institutional records compiled by the
department of corrections relating to the person, and any such out-of-state department of corrections' records, if available;
(ii) A complete copy, if applicable, of any file compiled by the
indeterminate sentence review board relating to the person;
(iii) All records relating to the psychological or psychiatric
evaluation and/or treatment of the person;
(iv) A current record of all prior arrests and convictions, and
full police case reports relating to those arrests and convictions; and
(v) A current mental health evaluation or mental health records
review.
(2) This section applies to acts committed before, on, or after
March 26, 1992.
(3) The agency, its employees, and officials shall be immune from
liability for any good-faith conduct under this section.
(4) As used in this section, "agency with jurisdiction" means that
agency with the authority to direct the release of a person serving a
sentence or term of confinement and includes the department of
corrections, the indeterminate sentence review board, and the
department of social and health services.
Sec. 212 RCW 71.09.030 and 1995 c 216 s 3 are each amended to
read as follows:
When it appears that: (1) A person who at any time previously has
been convicted of a sexually violent offense is about to be released
from total confinement on, before, or after July 1, 1990; (2) a person
found to have committed a sexually violent offense as a juvenile is
about to be released from total confinement on, before, or after July
1, 1990; (3) a person who has been charged with a sexually violent
offense and who has been determined to be incompetent to stand trial is
about to be released, or has been released on, before, or after July 1,
1990, pursuant to RCW ((10.77.090(3))) 10.77.084(1)(c); (4) a person
who has been found not guilty by reason of insanity of a sexually
violent offense is about to be released, or has been released on,
before, or after July 1, 1990, pursuant to RCW 10.77.020(3), 10.77.110
(1) or (3), or 10.77.150; or (5) a person who at any time previously
has been convicted of a sexually violent offense and has since been
released from total confinement and has committed a recent overt act;
and it appears that the person may be a sexually violent predator, the
prosecuting attorney of the county where the person was convicted or
charged or the attorney general if requested by the prosecuting
attorney may file a petition alleging that the person is a "sexually
violent predator" and stating sufficient facts to support such
allegation.
Sec. 213 RCW 71.09.060 and 2006 c 303 s 11 are each amended to
read as follows:
(1) The court or jury shall determine whether, beyond a reasonable
doubt, the person is a sexually violent predator. In determining
whether or not the person would be likely to engage in predatory acts
of sexual violence if not confined in a secure facility, the fact
finder may consider only placement conditions and voluntary treatment
options that would exist for the person if unconditionally released
from detention on the sexually violent predator petition. The
community protection program under RCW 71A.12.230 may not be considered
as a placement condition or treatment option available to the person if
unconditionally released from detention on a sexually violent predator
petition. When the determination is made by a jury, the verdict must
be unanimous.
If, on the date that the petition is filed, the person was living
in the community after release from custody, the state must also prove
beyond a reasonable doubt that the person had committed a recent overt
act. If the state alleges that the prior sexually violent offense that
forms the basis for the petition for commitment was an act that was
sexually motivated as provided in RCW 71.09.020(15)(c), the state must
prove beyond a reasonable doubt that the alleged sexually violent act
was sexually motivated as defined in RCW 9.94A.030.
If the court or jury determines that the person is a sexually
violent predator, the person shall be committed to the custody of the
department of social and health services for placement in a secure
facility operated by the department of social and health services for
control, care, and treatment until such time as: (a) The person's
condition has so changed that the person no longer meets the definition
of a sexually violent predator; or (b) conditional release to a less
restrictive alternative as set forth in RCW 71.09.092 is in the best
interest of the person and conditions can be imposed that would
adequately protect the community.
If the court or unanimous jury decides that the state has not met
its burden of proving that the person is a sexually violent predator,
the court shall direct the person's release.
If the jury is unable to reach a unanimous verdict, the court shall
declare a mistrial and set a retrial within forty-five days of the date
of the mistrial unless the prosecuting agency earlier moves to dismiss
the petition. The retrial may be continued upon the request of either
party accompanied by a showing of good cause, or by the court on its
own motion in the due administration of justice provided that the
respondent will not be substantially prejudiced. In no event may the
person be released from confinement prior to retrial or dismissal of
the case.
(2) If the person charged with a sexually violent offense has been
found incompetent to stand trial, and is about to (([be])) be or has
been released pursuant to RCW ((10.77.090(4))) 10.77.084(1)(c), and his
or her commitment is sought pursuant to subsection (1) of this section,
the court shall first hear evidence and determine whether the person
did commit the act or acts charged if the court did not enter a finding
prior to dismissal under RCW ((10.77.090(4))) 10.77.084(1)(c) that the
person committed 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
this section.
(3) The state shall comply with RCW 10.77.220 while confining the
person pursuant to this chapter, except that during all court
proceedings the person shall be detained in a secure facility. The
department shall not place the person, even temporarily, in a facility
on the grounds of any state mental facility or regional habilitation
center because these institutions are insufficiently secure for this
population.
(4) A court has jurisdiction to order a less restrictive
alternative placement only after a hearing ordered pursuant to RCW
71.09.090 following initial commitment under this section and in accord
with the provisions of this chapter.
NEW SECTION. Sec. 214 The following acts or parts of acts are
each repealed:
(1) RCW 10.77.260 (Violent act -- Presumptions) and 2000 c 74 s 5;
and
(2) RCW 10.77.800 (Evaluation of chapter 297, Laws of 1998--Recidivism, competency restoration, information sharing) and 1998 c 297
s 54.
NEW SECTION. Sec. 301 Part headings used in this act are not any
part of the law.