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Regular Session, 2010
SENATE BILL NO. 449
BY SENATOR HEITMEIER
CRIMINAL PROCEDURE. Provides for procedures after a determination of mental
capacity or incapacity. (8/15/10)
AN ACT1
To amend and reenact Code of Criminal Procedure Art. 648(A), (B)(1), and the introductory2
paragraph of Code of Criminal Procedure Art. 648(B)(3) and to enact Code of3
Criminal Art. 648(B)(2), relative to procedures after a determination of mental4
capacity or incapacity; and to provide for related matters.5
Be it enacted by the Legislature of Louisiana:6
Section 1. Code of Criminal Procedure Art. 648(A), (B)(1), and the introductory7
paragraph of Code of Criminal Procedure Art. 648(B)(3) are hereby amended and reenacted8
and Code of Criminal Procedure Art. 648(B)(2) is hereby enacted to read as follows:9
Art. 648. Procedure after determination of mental capacity or incapacity10
A. The criminal prosecution shall be resumed unless the court determines by11
a preponderance of the evidence that the defendant does not have the mental capacity12
to proceed. If the court determines that the defendant lacks mental capacity to13
proceed, the proceedings shall be suspended and one of the following dispositions14
made:15
(1) If the court determines that the defendant's mental capacity is likely to be16
restored within ninety days by outpatient care and treatment at an institution a17 SB NO. 449
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treatment facility as defined by R.S. 28:2(28) while remaining in the custody of the1
criminal authorities, and if the person is not charged with a felony or a misdemeanor2
classified as an offense against the person and is considered by the court to be3
unlikely to commit crimes of violence, then the court may order outpatient care and4
treatment at any institution treatment facility as defined by R.S. 28:2 (28).5
(2)(a) If the person is charged with a felony or a misdemeanor classified as6
an offense against the person and considered by the court to be likely to commit7
crimes of violence crime of violence as defined in R.S. 14:2(B), and if the court8
determines that his mental capacity is likely to be restored within ninety days as a9
result of treatment, the court may order immediate jail-based treatment by the10
Department of Health and Hospitals not to exceed ninety days; otherwise, if his11
capacity cannot be restored within ninety days and inpatient treatment is12
recommended, the court shall commit the defendant to the Feliciana Forensic13
Facility.14
(b) If a defendant committed to the Feliciana Forensic Facility is held in a15
parish jail for one hundred eighty days after the court's determination that he lacks16
the mental capacity to proceed, the court shall order a status conference to be held17
with the defense and the district attorney present, and for good cause shown and on18
motion of the defendant or the district attorney or on the court's own motion, the19
court shall order a contradictory hearing to determine whether there has been a20
change in the defendant's condition or other circumstances sufficient to warrant a21
modification of the previous order and the defendant's mental capacity has not22
been restored, the court shall conduct a contradictory hearing to determine23
whether the defendant is, or will in the foreseeable future be, capable of24
standing trial in accordance with Paragraph B of this Article.25
(c) If a defendant committed to the Feliciana Forensic Facility is held in a26
parish jail for one hundred eighty days after the initial status conference provided in27
Item (b) of this Subparagraph, the court shall order a contradictory hearing to28
determine whether to release the defendant or to order the appropriate authorities to29 SB NO. 449
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institute civil commitment proceedings pursuant to R.S. 28:54. The defendant shall1
remain in custody pending such civil commitment proceedings. If the defendant is2
civilly committed to a treatment facility pursuant to Title 28 of the Louisiana3
Revised Statutes of 1950, the director of the institution designated for the patient's4
treatment shall, in writing, notify the court and the district attorney when the patient5
is to be discharged or conditionally discharged, as long as the charges are pending.6
B.(1) In no instance shall such custody, care, and treatment exceed the time7
of the maximum sentence the defendant could receive if convicted of the crime with8
which he is charged. At any time after commitment and on the recommendation of9
the superintendent of the institution that the defendant will not attain the capacity to10
proceed with his trial in the foreseeable future, or as provided in Subsubparagraph11
(A)(2)(b) of this Article, the court shall, within sixty days and after at least ten days12
notice to the district attorney, defendant's counsel and the Bureau of Legal Services13
of the Department of Health and Hospitals, conduct a contradictory hearing to14
determine whether the mentally defective defendant is, and will in the foreseeable15
future be, incapable of standing trial and whether he is a danger to himself or others.16
(2)(a) If the court determines that the defendant is and will in the17
foreseeable future be incapable of standing trial, and the defendant has been18
charged with a crime of violence as defined in R.S. 14:2(B) or has a history of19
arrests for crimes of violence as defined in R.S. 14:2(B), then the court shall20
additionally determine whether the defendant poses a danger to others or to21
himself.22
(b) If the defendant has not been charged with a crime of violence as23
defined in R.S. 14:2(B) and does not have a history of arrests for crimes of24
violence as defined in R.S. 14:2(B), then the defendant shall be deemed not to25
pose a danger to others or himself.26
(c)(i) If after the contradictory hearing, the court determines that the27
defendant is and will in the foreseeable future be incapable of standing trial,28
and that the defendant has been charged with a crime of violence as defined in29 SB NO. 449
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R.S. 14:2(B) or has a history of arrests for crimes of violence as defined in R.S.1
14:2(B), and the defendant is a danger to others or to himself, then the2
defendant shall be referred for a special risk assessment in the trial court prior3
to release from inpatient treatment or jail.4
(ii) The special risk assessment shall be conducted by a sanity5
commission appointed pursuant to Article 644 and shall be conducted within6
thirty days of referral. The commission shall evaluate whether the defendant7
can be discharged from inpatient treatment or jail, conditionally or8
unconditionally, without posing a risk of danger to others or to himself. Within9
thirty days of receiving the commission's evaluation, the trial court shall hold10
a contradictory hearing to determine whether the defendant poses a substantial11
risk of danger to others or to himself if unconditionally discharged. If after the12
hearing and upon filing written findings of fact and conclusions of law, the court13
finds by a preponderance of the evidence that the defendant poses a substantial14
risk of danger to others or to himself if unconditionally discharged, the court15
shall either continue the commitment or order the defendant released16
conditionally as provided by Article 657.1(C). At any time subsequent to a court17
order continuing the defendant in custody or conditionally releasing the18
defendant, the defendant may move for a contradictory hearing to determine19
whether there has been a change in the defendant's condition or other20
circumstances sufficient to warrant a modification of the previous order.21
(3) If, after the hearing at any time, the court determines that the22
incompetent defendant is unlikely in the foreseeable future to be capable of standing23
trial and is not a danger to himself or others, the court shall order the defendant24
released or remanded to the custody of the Department of Health and Hospitals25
which, within ten days exclusive of weekends and holidays, may institute civil26
commitment proceedings pursuant to Title 28 of the Louisiana Revised Statutes of27
1950, or release the defendant. The defendant shall remain in custody pending such28
civil commitment proceedings. If the defendant is committed to a treatment facility29 SB NO. 449
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pursuant to Title 28 of the Louisiana Revised Statutes of 1950, the director of the1
institution designated for the patient's treatment shall, in writing, notify the court and2
the district attorney when the patient is to be discharged or conditionally discharged,3
as long as the charges are pending. If not dismissed without prejudice at an earlier4
trial, charges against an unrestorable incompetent defendant shall be dismissed on5
the date upon which his sentence would have expired had he been convicted and6
received the maximum sentence for the crime charged, or on the date five years from7
the date of his arrest for such charges, whichever is sooner, except for the following8
charges:9
* * *10
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Thomas L. Tyler.
DIGEST
Present law requires resumption of a criminal prosecution unless a court determines, by
preponderance of evidence, that the defendant lacks the mental capacity to proceed. Provides
for various dispositions of the case if it is determined that a defendant lacks mental capacity
to proceed to trial.
Present law provides that if a court determines that a defendant's mental capacity is likely
to be restored within 90 days by outpatient care or treatment in an institution while in
custody, and if he is not charged with a felony or misdemeanor classified as an offense
against the person and the court considers it unlikely that he will commit a crime of violence,
then the court may order outpatient care and treatment at any institution for mental health
treatment. Proposed law retains these provisions but clarifies that outpatient care and
treatment be at a treatment facility as defined in the mental health law.
Present law provides that one charged with a felony or misdemeanor classified as an offense
against the person and is considered to be likely to commit crimes of violence, then the court
may order immediate jail-based treatment by DHH not to exceed 90 days if it determines
that his mental capacity is likely to be restored within 90 days as a result of treatment.
Provides that if mental capacity cannot be restored within 90 days and inpatient treatment
is recommended, then the court is required to commit the defendant to the Feliciana Forensic
Facility. Proposed law retains these provisions except that the person must be charged with
a crime of violence as defined by law for present law to apply.
Present law provides that if one is committed to the Feliciana Forensic Facility and held in
a parish jail for 180 days after a court determination of lack of mental capacity, then requires
the court to order a status conference with the defense and DA present, and for good cause
shown on motion of the defendant or the DA or on motion of the court, the court is to order
a contradictory hearing to determine if the defendant's condition or circumstances are
sufficient to warrant a modification of its previous order.
Proposed law provides that a defendant committed to the Feliciana Forensic Facility and
held in a parish jail for 180 after a court determination that he lacks the mental capacity to
proceed, and if his mental capacity has not been restored, then requires the court to conduct SB NO. 449
SLS 10RS-737 ORIGINAL
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words in boldface type and underscored are additions.
a contradictory hearing to determine whether the defendant is, or will in the foreseeable
future be, capable of standing trial in accordance with proposed law.
Present law provides that if a defendant is committed to the Feliciana Forensic Facility and
held in a parish jail for 180 days after the initial status conference on his mental capacity,
then requires the court to order a contradictory hearing to determine whether to release the
defendant or to order appropriate authorities to institute civil commitment proceedings.
Requires that the defendant remain in custody pending the civil commitment proceedings.
Provides that if civilly committed to a treatment facility, then requires director of the
institution designated for treatment to notify, in writing, the court and DA when the patient
is to be discharged or conditionally discharged, as long as the charges are pending. Proposed
law removes this provision.
Proposed law provides that a defendant charged with a crime of violence or if he has a
history of arrests for crimes of violence and a court determines that he is, or will in the
foreseeable future be, incapable of standing trial, then the court is to additionally determine
whether the defendant poses a danger to others or to himself. Provides that a defendant not
charged with a crime of violence and who has no history of arrests for crimes of violence,
then he shall be deemed not to pose a danger to others or to himself.
Proposed law provides that if the court determines, after a contradictory hearing, that a
defendant is and will in the foreseeable future be incapable of standing trial and if he has
been charged with a crime of violence or has a history of arrests for crimes of violence and
he is a danger to others or to himself, then requires that he be referred to a special risk
assessment in the trial court prior to release from inpatient treatment or jail.
Proposed law requires that the special risk assessment be conducted by a sanity commission
within 30 days of his referral. Requires that the commission evaluate whether the defendant
can be discharged from inpatient treatment or jail, conditionally or unconditionally, without
posing a risk of danger to others or to himself. Requires the trial court, within 30 days of
receiving the commission's evaluation, to hold a contradictory hearing to determine if the
defendant poses a substantial risk of danger to others or to himself if unconditionally
discharged.
Proposed law provides that if after the hearing and upon filing written findings of fact and
conclusions of law, the court finds by a preponderance of the evidence that the defendant
poses a substantial risk of danger to others or to himself if unconditionally discharged, the
court is to either continue the commitment or order the defendant released conditionally.
Provides that any time after the court order continuing the defendant in custody or
conditionally releasing the defendant, the defendant may move for a contradictory hearing
to determine whether there has been a change in his condition or other circumstances
sufficient to warrant a modification of the previous order.
Effective August 15, 2010.
(Amends C.Cr.P. Art. 648(A), (B)(1), (B)(3)(intro para); adds C.Cr.P. Art. 648(B)(2))