Kansas 2023-2024 Regular Session

Kansas House Bill HB2692 Compare Versions

Only one version of the bill is available at this time.

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1	1	Session of 2024
2	2	HOUSE BILL No. 2692
3	3	By Committee on Judiciary
4	4	Requested by Keri Strahler on behalf of Shawnee County Mercy Advocates
5	5	2-5
6	6	AN ACT concerning crimes, punishment and criminal procedure; relating
7	7	to principles of criminal liability; providing an exception to criminal
8	8	liability when a defendant has a mental disease or defect so as not to
9	9	know the nature of the act or that such act was wrong; amending
10	10	K.S.A. 21-5209, 22-3219, 22-3221, 22-3222 and 22-3428 and repealing
11	11	the existing sections.
12	12	Be it enacted by the Legislature of the State of Kansas:
13	13	Section 1. K.S.A. 21-5209 is hereby amended to read as follows: 21-
14	14	5209. It shall be a defense to a prosecution under any statute that:
15	15	(a) The defendant, as a result of mental disease or defect, lacked the
16	16	culpable mental state required as an element of the crime charged. Mental
17	17	disease or defect is not otherwise a defense; or
18	18	(b) at the time of committing the alleged criminal act, the defendant
19	19	was laboring under such a mental disease or defect as not to know:
20	20	(1) The nature and quality of such act; or
21	21	(2) that such act was wrong.
22	22	Sec. 2. K.S.A. 22-3219 is hereby amended to read as follows: 22-
23	23	3219. (1)(a) Evidence of mental disease or defect excluding criminal
24	24	responsibility is not admissible upon a trial unless the defendant serves
25	25	upon the prosecuting attorney and files with the court a written notice of
26	26	such defendant's intention to assert the defense that the defendant, as a
27	27	result of mental disease or defect lacked the mental state required as an
28	28	element of the offense charged a defense described in K.S.A. 21-5209, and
29	29	amendments thereto. Such notice must be served and filed before trial and
30	30	not more than 30 days after entry of the plea of not guilty to the
31	31	information or indictment. For good cause shown the court may permit
32	32	notice at a later date.
33	33	(2)(b) A defendant who files a notice of intention to assert the defense
34	34	that the defendant, as a result of mental disease or defect lacked the mental
35	35	state required as an element of the offense charged a defense described in
36	36	K.S.A. 21-5209, and amendments thereto, thereby submits and consents to
37	37	abide by such further orders as the court may make requiring the mental
38	38	examination of the defendant and designating the place of examination and
39	39	the physician or licensed psychologist by whom such examination shall be
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75	75	made. No order of the court respecting a mental examination shall
76	76	preclude the defendant from procuring at such defendant's own expense an
77	77	examination by a physician or licensed psychologist of such defendant's
78	78	own choosing. A defendant requesting a mental examination pursuant to
79	79	K.S.A. 22-4508, and amendments thereto, may request a physician or
80	80	licensed psychologist of such defendant's own choosing. The judge shall
81	81	inquire as to the estimated cost for such examination and shall appoint the
82	82	requested physician or licensed psychologist if such physician or licensed
83	83	psychologist agrees to accept compensation in an amount in accordance
84	84	with the compensation standards set by the board of supervisors of panels
85	85	to aid indigent defendants. A report of each mental examination of the
86	86	defendant shall be filed in the court and copies thereof shall be supplied to
87	87	the defendant and the prosecuting attorney.
88	88	Sec. 3. K.S.A. 22-3221 is hereby amended to read as follows: 22-
89	89	3221. (a) In any case in which the defense has offered substantial evidence
90	90	of a mental disease or defect excluding the mental state required as an
91	91	element of the offense charged pursuant to K.S.A. 21-5209(a), and
92	92	amendments thereto, and the jury returns a verdict of "not guilty," the jury
93	93	shall also answer a special question in the following form: "Do you find
94	94	the defendant not guilty solely because the defendant, at the time of the
95	95	alleged crime, was suffering from a mental disease or defect which
96	96	rendered the defendant incapable of possessing the required criminal
97	97	intent?" The provisions of this section shall be in force and take effect on
98	98	and after January 1, 1996.
99	99	(b) In any case in which the defense has offered substantial evidence
100	100	of a mental disease or defect excluding criminal responsibility for the
101	101	offense charged pursuant to K.S.A. 21-5209, and amendments thereto, and
102	102	the jury returns a verdict of "not guilty," the jury shall also answer a
103	103	special question in the following form: "Do you find the defendant not
104	104	guilty solely because the defendant, at the time of the alleged crime, was
105	105	laboring under such a mental disease or defect as not to know: (1) The
106	106	nature and quality of such act; or (2) that such act was wrong?"
107	107	Sec. 4. K.S.A. 22-3222 is hereby amended to read as follows: 22-
108	108	3222. In any case in which the defendant is found not guilty of a charged
109	109	crime, and the special question under K.S.A. 22-3221 is answered the jury
110	110	answers in the affirmative to a special question asked pursuant to K.S.A.
111	111	22-3221, and amendments thereto, and the defendant is also found guilty
112	112	of a lesser included or otherwise charged offense, the court shall proceed
113	113	in the manner authorized by K.S.A. 22-3429 et seq., and amendments
114	114	thereto. The provisions of this section shall be in force and take effect on
115	115	and after January 1, 1996.
116	116	Sec. 5. K.S.A. 22-3428 is hereby amended to read as follows: 22-
117	117	3428. (a) (1) When a defendant is acquitted and the jury answers in the
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161	161	affirmative to the a special question asked pursuant to K.S.A. 22-3221,
162	162	and amendments thereto, the defendant shall be committed to the state
163	163	security hospital or an appropriate secure facility for safekeeping and
164	164	treatment and the prosecuting attorney shall provide victim notification. A
165	165	finding of not guilty and the jury answering in the affirmative to the a
166	166	special question asked pursuant to K.S.A. 22-3221, and amendments
167	167	thereto, shall be prima facie evidence that the acquitted defendant is
168	168	presently likely to cause harm to self or others.
169	169	(2) Within 90 days of the defendant's admission, the chief medical
170	170	officer of the state security hospital or licensed psychologist at the
171	171	appropriate secure facility shall send to the court a written evaluation
172	172	report. Upon receipt of the report, the court shall set a hearing to determine
173	173	whether or not the defendant is currently a mentally ill person. The hearing
174	174	shall be held within 30 days after the receipt by the court of the chief
175	175	medical officer's report unless the court finds that exceptional
176	176	circumstances warrant delay of the hearing.
177	177	(3) The court shall give notice of the hearing to the chief medical
178	178	officer of the state security hospital or licensed psychologist at the
179	179	appropriate secure facility, the prosecuting attorney, the defendant and the
180	180	defendant's attorney. The prosecuting attorney shall provide victim
181	181	notification. The court shall inform the defendant that such defendant is
182	182	entitled to counsel and that counsel will be appointed to represent the
183	183	defendant if the defendant is not financially able to employ an attorney as
184	184	provided in K.S.A. 22-4503 et seq., and amendments thereto. The
185	185	defendant shall remain at the state security hospital pending the hearing.
186	186	(4) At the hearing, the defendant shall have the right to present
187	187	evidence and cross-examine witnesses. At the conclusion of the hearing, if
188	188	the court finds by clear and convincing evidence that the defendant is not
189	189	currently a mentally ill person, the court shall dismiss the criminal
190	190	proceeding and discharge the defendant, otherwise the court may commit
191	191	the defendant to the state security hospital or an appropriate secure facility
192	192	for treatment or may place the defendant on conditional release pursuant to
193	193	subsection (d). The prosecuting attorney shall provide victim notification
194	194	regarding the outcome of the hearing.
195	195	(b) Subject to the provisions of subsection (c):
196	196	(1) Whenever it appears to the chief medical officer of the state
197	197	security hospital or a licensed psychologist at the appropriate secure
198	198	facility that a person committed under subsection (a)(4) is not likely to
199	199	cause harm to other persons in a less restrictive hospital environment, the
200	200	officer may transfer the person to any state hospital, subject to the
201	201	provisions of subsection (c). At any time subsequent thereto during which
202	202	such person is still committed to a state hospital, if the chief medical
203	203	officer of that hospital or the licensed psychologist at the appropriate
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247	247	secure facility finds that the person may be likely to cause harm or has
248	248	caused harm, to others, such officer may transfer the person back to the
249	249	state security hospital.
250	250	(2) Any person committed under subsection (a)(4) may be granted
251	251	conditional release or discharge as an involuntary patient.
252	252	(c) Before transfer of a person from the state security hospital or
253	253	appropriate secure facility pursuant to subsection (b)(1) or conditional
254	254	release or discharge of a person pursuant to subsection (b)(2), the chief
255	255	medical officer of the state security hospital or the state hospital where the
256	256	patient is under commitment or the licensed psychologist at the
257	257	appropriate secure facility shall give notice to the district court of the
258	258	county from which the person was committed that transfer of the patient is
259	259	proposed or that the patient is ready for proposed conditional release or
260	260	discharge. Such notice shall include, but not be limited to: (1)
261	261	Identification of the patient; (2) the course of treatment; (3) a current
262	262	assessment of the defendant's mental illness; (4) recommendations for
263	263	future treatment, if any; and (5) recommendations regarding conditional
264	264	release or discharge, if any. Upon receiving notice, the district court shall
265	265	order that a hearing be held on the proposed transfer, conditional release or
266	266	discharge. The court shall give notice of the hearing to the appropriate
267	267	secure facility, state hospital or state security hospital where the patient is
268	268	under commitment, to the prosecuting attorney of the county from which
269	269	the person was originally ordered committed. The prosecuting attorney
270	270	shall provide victim notification regarding the hearing. The court shall
271	271	order the involuntary patient to undergo a mental evaluation by a person
272	272	designated by the court. A copy of all orders of the court shall be sent to
273	273	the involuntary patient and the patient's attorney. The report of the court
274	274	ordered mental evaluation shall be given to the prosecuting attorney, the
275	275	involuntary patient and the patient's attorney at least seven days prior to
276	276	the hearing. The hearing shall be held within 30 days after the receipt by
277	277	the court of the chief medical officer's notice unless the court finds that
278	278	exceptional circumstances warrant delay of the hearing. The involuntary
279	279	patient shall remain in the appropriate secure facility, state hospital or state
280	280	security hospital where the patient is under commitment until the hearing
281	281	on the proposed transfer, conditional release or discharge is to be held. At
282	282	the hearing, the court shall receive all relevant evidence, including the
283	283	written findings and recommendations of the chief medical officer of the
284	284	state security hospital or the state hospital or the licensed psychologist of
285	285	the appropriate secure facility where the patient is under commitment, and
286	286	shall determine whether the patient shall be transferred to a less restrictive
287	287	hospital environment or whether the patient shall be conditionally released
288	288	or discharged. The patient shall have the right to present evidence at such
289	289	hearing and to cross-examine any witnesses called by the prosecuting
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333	333	attorney. At the conclusion of the hearing, if the court finds by clear and
334	334	convincing evidence that the patient will not be likely to cause harm to self
335	335	or others if transferred to a less restrictive hospital environment, the court
336	336	shall order the patient transferred. If the court finds by clear and
337	337	convincing evidence that the patient is not currently a mentally ill person,
338	338	the court shall order the patient discharged or conditionally released;
339	339	otherwise, the court shall order the patient to remain in the state security
340	340	hospital or state hospital where the patient is under commitment. If the
341	341	court orders the conditional release of the patient in accordance with
342	342	subsection (d), the court may order as an additional condition to the release
343	343	that the patient continue to take prescribed medication and report as
344	344	directed to a person licensed to practice medicine and surgery to determine
345	345	whether or not the patient is taking the medication or that the patient
346	346	continue to receive periodic psychiatric or psychological treatment. The
347	347	prosecuting attorney shall notify any victims of the outcome of the
348	348	hearing.
349	349	(d) In order to ensure the safety and welfare of a patient who is to be
350	350	conditionally released and the citizenry of the state, the court may allow
351	351	the patient to remain in custody at a facility under the supervision of the
352	352	secretary for aging and disability services or the head of the appropriate
353	353	secure facility for a period of time not to exceed 45 days in order to permit
354	354	sufficient time for the secretary to prepare recommendations to the court
355	355	for a suitable reentry program for the patient and allow adequate time for
356	356	the prosecuting attorney to provide victim notification. The reentry
357	357	program shall be specifically designed to facilitate the return of the patient
358	358	to the community as a functioning, self-supporting citizen, and may
359	359	include appropriate supportive provisions for assistance in establishing
360	360	residency, securing gainful employment, undergoing needed vocational
361	361	rehabilitation, receiving marital and family counseling, and such other
362	362	outpatient services that appear beneficial. If a patient who is to be
363	363	conditionally released will be residing in a county other than the county
364	364	where the district court that ordered the conditional release is located, the
365	365	court shall transfer venue of the case to the district court of the other
366	366	county and send a copy of all of the court's records of the proceedings to
367	367	the other court. In all cases of conditional release the court shall:
368	368	(1) Order that the patient be placed under the temporary supervision
369	369	of district court probation and parole services, community treatment
370	370	facility or any appropriate private agency; and
371	371	(2) require as a condition precedent to the release that the patient
372	372	agree in writing to waive extradition in the event a warrant is issued
373	373	pursuant to K.S.A. 22-3428b, and amendments thereto.
374	374	(e) At any time during the conditional release period, a conditionally
375	375	released patient, through the patient's attorney, or the prosecuting attorney
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419	419	of the county where the district court having venue is located may file a
420	420	motion for modification of the conditions of release, and the court shall
421	421	hold an evidentiary hearing on the motion within 14 days of its filing. The
422	422	court shall give notice of the time for the hearing to the patient and the
423	423	prosecuting attorney. If the court finds from the evidence at the hearing
424	424	that the conditional provisions of release should be modified or vacated, it
425	425	shall so order. If at any time during the transitional period the designated
426	426	medical officer or supervisory personnel or the treatment facility informs
427	427	the court that the patient is not satisfactorily complying with the provisions
428	428	of the conditional release, the court, after a hearing for which notice has
429	429	been given to the prosecuting attorney and the patient, may make orders:
430	430	(1) For additional conditions of release designed to effect the ends of the
431	431	reentry program; (2) requiring the prosecuting attorney to file a petition to
432	432	determine whether the patient is a mentally ill person as provided in
433	433	K.S.A. 59-2957, and amendments thereto; or (3) requiring that the patient
434	434	be committed to the appropriate secure facility, state security hospital or
435	435	any state hospital. In cases where a petition is ordered to be filed, the court
436	436	shall proceed to hear and determine the petition pursuant to the care and
437	437	treatment act for mentally ill persons and that act shall apply to all
438	438	subsequent proceedings. If a patient is committed to any state hospital
439	439	pursuant to this act the prosecuting attorney shall provide victim
440	440	notification. The costs of all proceedings, the mental evaluation and the
441	441	reentry program authorized by this section shall be paid by the county
442	442	from which the person was committed.
443	443	(f) In any case in which the a defense that the defendant lacked the
444	444	required mental state pursuant to described in K.S.A. 21-5209, and
445	445	amendments thereto, is relied on, the court shall instruct the jury on the
446	446	substance of this section.
447	447	(g) As used in this section and K.S.A. 22-3428a, and amendments
448	448	thereto:
449	449	(1) "Likely to cause harm to self or others" means that the person is
450	450	likely, in the reasonably foreseeable future, to cause substantial physical
451	451	injury or physical abuse to self or others or substantial damage to another's
452	452	property, or evidenced by behavior causing, attempting or threatening such
453	453	injury, abuse or neglect.
454	454	(2) "Mentally ill person" means any person who:
455	455	(A) Who is suffering from a severe mental disorder to the extent that
456	456	such person is in need of treatment; and
457	457	(B) who is likely to cause harm to self or others; and
458	458	(C) whose diagnosis is not solely one of the following mental
459	459	disorders:
460	460	(i) Alcohol or chemical substance abuse;
461	461	(ii) antisocial personality disorder;
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505	505	(iii) intellectual disability;
506	506	(iv) organic personality syndrome; or
507	507	(v) an organic disorder.
508	508	(3) "Treatment facility" means any mental health center or clinic,
509	509	psychiatric unit of a medical care facility, psychologist, physician or other
510	510	institution or individual authorized or licensed by law to provide either
511	511	inpatient or outpatient treatment to any patient.
512	512	Sec. 6. K.S.A. 21-5209, 22-3219, 22-3221, 22-3222 and 22-3428 are
513	513	hereby repealed.
514	514	Sec. 7. This act shall take effect and be in force from and after its
515	515	publication in the statute book.
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