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Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
Regular Session, 2010
SENATE BILL NO. 350
BY SENATOR GUILLORY
CRIMINAL PROCEDURE. Provides for court jurisdiction once a defendant has been
determined incompetent. (8/15/10)
AN ACT1
To enact Code of Criminal Procedure Art. 648(D), relative to mental incapacity; to provide2
for certain procedures relative to an incompetent defendant not capable of standing3
trial; and to provide for related matters.4
Be it enacted by the Legislature of Louisiana:5
Section 1. Code of Criminal Procedure Art. 648 is hereby enacted to read as follows:6
Art. 648. Procedure after determination of mental capacity or incapacity7
* * *8
D. When the superintendent of the institution is of the opinion that a9
person committed pursuant to this Section can be discharged or can be released10
on probation, without danger to others or to himself, he shall recommend the11
discharge or release of the person in a report to a review panel comprised of the12
person's treating physician, the clinical director of the facility to which the13
person is committed, and a physician or a psychologist who served on the sanity14
commission which recommended commitment of the person. If any member of15
the panel is unable to serve, a physician or psychologist engaged in the practice16
of clinical or counseling psychology with at least three years experience in the17 SB NO. 350
SLS 10RS-702 ORIGINAL
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Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
field of mental health shall be appointed by the remaining members. The panel1
shall review all reports received promptly. After review, the panel shall make2
a recommendation to the court by which the person was committed as to the3
person's mental condition and whether he can be discharged conditionally, or4
unconditionally, or placed on probation without being a danger to others or5
himself. If the review panel recommends to the court that the person be6
discharged, conditionally or unconditionally, or placed on probation, the court7
shall conduct a contradictory hearing following notice to the counsel for the8
committed person and the district attorney. A person committed pursuant to9
this Section may make application to the review panel for discharge or for10
release on probation. Such application by a committed person may not be filed11
until the committed person has been confined for a period of at least six months12
after the original commitment. If the recommendation of the review panel or13
the court is adverse, the applicant shall not be permitted to file another14
application until one year has elapsed from the date of determination. The15
superintendent of the institution shall, under Subsection A and B of this Section,16
transmit a copy of this report and recommendation to the person committed,17
his attorney, and to the district attorney of the parish from which the person18
was committed. Upon receipt of the superintendent's report filed in conformity19
with this Subsection, the review panel may examine the committed person and20
report, to the court promptly, whether he can be safely discharged,21
conditionally or unconditionally, or be safely released on probation, without22
danger to others or to himself. The committed person or the district attorney23
may also retain a physician or psychologist engaged in the practice of clinical24
or counseling psychology with at least three years experience in the field of25
mental health to examine the committed person for the same purpose. The26
physician's report shall be filed with the court. Upon receipt by the27
superintendent of the facility to which the person has been committed of the28
recommendation of the hospital-based treatment team that the person is29 SB NO. 350
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Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
appropriate for probated outpatient status as set forth in this Section, the1
superintendent shall immediately forward such recommendation to the2
administrator of the conditional release program, together with the proposed3
aftercare plan. The administrator shall submit to the review panel a4
recommended plan, if appropriate, for outpatient supervision and monitoring.5
The plan shall set forth any additional terms and conditions to be followed6
during outpatient status. After considering the report or reports filed pursuant7
to this Subsection, the court may continue the commitment or hold a8
contradictory hearing to determine whether the committed person is no longer9
a mentally ill person as defined by R.S.28:2(14) and can be discharged, or10
released, without being dangerous to others as defined by R.S. 28:2(3) or11
dangerous to self as defined by R.S. 28:2(4). At the hearing the burden shall be12
upon the state to seek continuance of the confinement by proving by clear and13
convincing evidence that the committed person is currently both mentally ill14
and dangerous. After the hearing, and upon filing written findings of fact and15
conclusions of law, the court may order the committed person discharged,16
released on probation, subject to specified conditions for a fixed or an17
indeterminate period, or recommitted to the state mental institution. A copy of18
the judgment and order containing the written findings of fact and conclusions19
or law shall be forwarded to the administrator of the forensic facility. Notice20
to the counsel for the committed person and the district attorney for the21
contradictory hearing shall be given at least thirty days prior to the hearing.22
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Michael Bell.
DIGEST
Proposed law provides for the superintendent of the institution to recommend the discharge
or release of the person in a report to a review panel comprised of the person's treating
physician, the clinical director of the facility to which the person is committed, and a
physician or a psychologist who served on the sanity commission which recommended
commitment of the person.
Proposed law provides for the review panel to make a recommendation to the court by which
the person was committed as to the person's mental condition and whether he can be SB NO. 350
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Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
discharged conditionally, or unconditionally, or placed on probation without being a danger
to others or himself.
Proposed law provides for the court to conduct a contradictory hearing if the panel
recommends to the court that the person be discharged, conditionally or unconditionally, or
placed on probation.
Proposed law provides that the burden of proof is on the state to prove that the committed
person is in need of continued confinement and the proof has to be by clear and convincing
evidence that the person is currently both mentally ill and dangerous.
Proposed law provides for the court to file written findings of fact and conclusions of law
if it orders the committed person discharged, released on probation, subject to specified
conditions for a fixed or an indeterminate period, or recommitted to the state mental
institution.
Effective August 15, 2010.
(Adds C.Cr.P. Art. 648(D))