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HOUSE OF REPRESENTATIVES - FLOOR VERSION
STATE OF OKLAHOMA
1st Session of the 59th Legislature (2023)
COMMITTEE SUBSTITUTE
FOR
HOUSE BILL NO. 1621 By: Worthen
COMMITTEE SUBSTITUTE
An Act relating to criminal procedure; amending 22
O.S. 2021, Section 1161, which relates to insanity of
accused; modifying memberships of the Forensic Review
Board; and providing an effect ive date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 22 O.S. 2021, Section 116 1, is
amended to read as follows:
Section 1161. A. 1. An act committed by a person in a state
of mental illness or mental defect shall be adjudicated as guil ty
with mental defect or as not guilty by reason of mental illness.
2. If a person is found gui lty with mental defect or enters a
plea of guilty with mental defect which is accepted by the court,
the court at the time of sentencing shall impose any senten ce that
could be imposed by law upon a person who is convicted of the sam e
offense, and the pers on shall serve the sentence in custody of a
county jail or the Oklahoma Department of Corrections.
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3. If a person who is found guilty with mental defect is pla ced
on probation under the jurisdiction of the sentencing court as
provided by law, the court sh all immediately issue an order for the
person to be examined by the Department of Mental Health and
Substance Abuse Services. The time and place of such examin ation
shall be determined by the Department. Within forty -five (45) days,
the Department shall provide to the court a recommendation of
treatment for the person, which shall be made a condition of
probation. Reports as specified by the trial judge shall be filed
with the probation officer and the sentencing court. Failure to
continue treatment, ex cept by agreement with the treating agency and
the sentencing court, is grounds for revocation of probation.
Treatment shall be provided by an agency of the De partment or, with
the approval of the sentencing court and at the expense of the
person, by private agencies, private physicians or other mental
health personnel. A psychiatric report shall be filed with the
probation officer and the sentencing court ever y six (6) months
during the period of probation.
4. When in any criminal action by indictment o r information,
the defense of mental illness is raised, but the defendant is not
acquitted on the ground that the defendant was mentally ill at the
time of the commission of the crime charged, an issue concerning
such defense may be raised on appeal. If t he appellate court finds
relief is required, the appellate court shall not have authority to
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modify the judgment or sentence, but will only have the authority t o
order a new trial or order resentencing without recommendations to
sentencing.
5. When in any criminal action by indictment or information the
defense of mental illness is interposed either singly or in
conjunction with some other defense, the jury shal l state in the
verdict, if it is one of acquittal, whether or not the def endant is
acquitted on the ground of mental illness. When the defendant is
acquitted on the ground that the defendant was mentally ill at the
time of the commission of the crime char ged, the person shall not be
discharged from custody until the court has made a determination
that the person is not dangerous to the public peace and safety and
is a person requiring treatment.
B. 1. To assist the court in its determination, the court
shall immediately issue an order for the person to be examined by
the Department of Mental Health and Substance Abuse Services at a
facility the Department has designated to examine and treat forensic
individuals. Upon the issuance of the order, the sherif f shall
deliver the person to the designated facility.
2. Within forty-five (45) days of the co urt entering such an
order, a hearing shall be conducted by the court to ascertain
whether the person is dangerous to the public peace or safety
because the person is a person requiring treatment or, if not, is in
need of continued supervision as a result of unresolved symptoms of
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mental illness or a history of treatment noncompliance. During the
required period of hospitalization the Department of Mental Health
and Substance Abuse Services shall have the person examined by two
qualified psychiatrists or o ne such psychiatrist and one qualified
clinical psychologist whose training and experience enable the
professional to form expert opinions regarding mental illn ess,
competency, dangerousness and criminal responsibility.
C. 1. Each examiner shall, within thirty-five (35) days of
hospitalization, individually prepare and submit to the court, the
district attorney and the trial counsel of the person a report of
the psychiatric examination findings of the person and an evaluation
concerning whether the person is dangerous to the public peace or
safety.
2. If the court is dissatisfied with the reports or if a
disagreement on the issue of mental illness and dangerous ness exists
between the two examiners, the court may designate one or mor e
additional examiners and have them submit their findings and
evaluations as specified in paragraph 1 of this subsection.
3. a. Within ten (10) days after the reports are filed, the
court must conduct a hearing to determine the present
condition of the person as to the issue of whether:
(1) the person is dangerous to the public peace or
safety because the person is a person requiring
treatment, or
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(2) if not believed to be dangerous t o the public
peace or safety, the person is in need of
continued supervision as a result of unre solved
symptoms of mental illness or a history of
treatment noncompliance.
b. The district attorney must establish the foregoing by
a preponderance of the evide nce. At this hearing the
person shall have the assistance of counsel and may
present independent evidence.
D. 1. If the court finds that the person is not dangerous to
the public peace or safety because the person is a person requiring
treatment and is not in need of continued supervision as a result of
unresolved symptoms o f mental illness or a h istory of treatment
noncompliance, it shall immediately discharge the person from
hospitalization.
2. If the court finds that the person is dangerous to the
public peace and safety, it shall commit the person to the custody
of the Department of Mental Hea lth and Substance Abuse Services.
The person shall then be subject to discharge pursuant to the
procedure set forth in this section.
a. During the period of ho spitalization, the Department
of Mental Health and Substance Abuse Servic es may
administer or cause to be administered to the person
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such psychiatric, medical or other therapeutic
treatment as in its judgment should be administered.
b. The person shall be subject to discharge or
conditional release pursuant to the procedures se t
forth in this section .
E. If at any time the court finds the person is not dangerous
to the public peace or safety because the person is a person
requiring treatment, but is in nee d of continued supervision as a
result of unresolved symptoms of mental i llness or a history of
treatment noncompliance, the court may:
1. Discharge the person pursuant to the procedure set forth in
this section;
2. Discharge the person, and upon the mot ion of the court or
the district attorney commence civil involuntary comm itment
proceedings against the person pursuant to the provisions of Title
43A of the Oklahoma Statutes; or
3. Order conditional release, as set forth in subsection F of
this section.
F. There is hereby created a Forensic Review Board to be
composed of seven (7) members appoint ed by the Governor with the
advice and consent of the Senate. The Board members shall serve for
a term of five (5) years except that for members first appointe d to
the Board: one shall serve for a term ending December 31, 2008, two
shall serve for a term ending December 31, 2009, two shall serve a
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term ending December 31, 2010, and two shall serve for a term ending
December 31, 2011.
1. The Board shall be comp osed of:
a. four licensed mental health professionals with
experience in treating mental illness , at least one of
whom is licensed as a Doctor of Medicine, a Doctor of
Osteopathy, or a licensed clinical psychologist and
who shall be appointed from a list of se ven names
submitted to the Governor by the Department of Mental
Health and Substance Abuse S ervices,
b. one member who shall be an attorney licensed to
practice in this state and shall be appointed from a
list of not less than three names submitted to the
Governor by the Board of Governors of the Oklahoma Bar
Association,
c. one member who shall be a retired judge licensed to
practice in this state and shall be appointed from a
list of not less than three names submitted to the
Governor by the Judicial Nomi nating Committee, and
d. one
b. three at-large member members.
The attorney and retired judg e members of the Board shall be
prohibited from representing in the courts of this state persons
charged with felony offenses while serving on the Board.
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2. The Board shall meet as necessary to deter mine which
individuals confined w ith the Department of M ental Health and
Substance Abuse Servic es are eligible for therapeutic visits,
conditional release or discharge and whether the Board wishes to
make such a recommen dation to the court of the county wh ere the
individual was found not guilty by reason of ins anity or not guilty
by reason of mental illness for those persons adjudicated as such
upon or after November 1, 2016.
a. Forensic Review Board meetings shall not be considered
subject to the Oklahoma Open Meeting Act and are not
open to the public. Other than the Forensic Review
Board members, only the following individuals shall be
permitted to attend Board meetings:
(1) the individual the Board is considering for
therapeutic visits, conditional rele ase or
discharge, his or her trea tment advocate, and
members of his or her treatment team,
(2) the Commissioner of Mental Health and Substance
Abuse Services or designee,
(3) the Advocate General for the Department of Me ntal
Health and Substance Abuse Serv ices or designee,
(4) the General Counsel for the Depart ment of Mental
Health and Substance Abu se Services or designee,
and
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(5) any other persons the Board and Commissioner of
Mental Health and Substance Abuse Services w ish
to be present.
b. The Department of Mental Health and Substance A buse
Services shall provide administrative staff to the
Board to take minutes of meetings and prepare
necessary documents and correspondence for the Board
to comply with its duties as set forth in this
section. The Departm ent of Mental Health and
Substance Abuse Services shall also transport the
individuals being re viewed to and from the Board
meeting site.
c. The Board shall promulgate rules concerning the
granting and structure of thera peutic visits,
conditional releases and discharge.
d. For purposes of this subsection, "therapeutic visit"
means a scheduled time p eriod off campus which
provides for progressive tests of the ability of the
consumer to maintain and demonstrate coping skill s.
3. The Forensic Review Board sha ll submit any recommendation
for therapeutic visit, cond itional release or discharge to the cou rt
and district attorney of the county where the person was found not
guilty by reason of mental illness, the trial counsel o f the person,
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the Department of Ment al Health and Substance Abuse Ser vices and the
person at least fourteen (14) days prior to the scheduled visit.
a. The district attorney may file an objection to a
recommendation for a therapeutic visit within ten (10)
days of receipt of the notice.
b. If an objection is filed, the therap eutic visit is
stayed until a hearing is held. The court shal l hold
a hearing not less than ten (10) days following an
objection to determine whether the therapeutic visit
is necessary for treatment, and if necessary, the
nature and extent of the visit.
4. During the period of hospitalization the Department of
Mental Health and Substance Abuse Services shall submit an annual
report on the status of the person to the court, the district
attorney and the patient advocate gen eral of the Department of
Mental Health and Substance Ab use Services.
G. Upon motion by the di strict attorney or upon a
recommendation for conditional release or discharge by the Forensic
Review Board, the court shall c onduct a hearing to ascertain if the
person is dangerous and a person requiring treatment. This hearing
shall be conducted under t he same procedure as the first hearing and
must occur not less than ten (10) days following the motion or
request by the Forensic Review Board.
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1. If the court determines that the person contin ues to be
dangerous to the public peace and safety because the person is a
person requiring treatment, it shall order the return of the person
to the hospital for additional treatment.
2. If the court determines that the p erson is not dangerous but
subject to certain conditions , the court may conditionally release
the person subject to the following:
a. the Forensic Review Board has made a recommendation
for conditional release, including a written plan for
outpatient treatment and a list of recommendation s for
the court to place as conditions on the release,
b. in its order of conditional release, the court shall
specify conditions of release and shall direct the
appropriate agencies or p ersons to submit annual
reports regarding the compliance of the perso n with
the conditions of release and progress in treatment,
c. the person must agree, in writing, that during the
period the person is granted conditional release and
is subject to the pr ovisions thereof, there shall be
free transmission of all pertinent i nformation,
including clinical information regarding the person,
among the Department of Mental Health and Substance
Abuse Services, the appropriate community mental
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health centers and th e appropriate district attorneys,
law enforcement and court personnel ,
d. the order of the court placing the person on
conditional release shall include notice that the
conditional release of the person may be revoked upon
good cause. The person placed on conditional release
shall remain under the supervision of the Depart ment
of Mental Health and Substance Abuse Services until
the committing court enters a final discharge order.
The Department of Mental Health and Substance Abuse
Services shall assess th e person placed on conditional
release annually and shall have the au thority to
recommend discharge of the person to the Board, and
e. any agency or individual involved in providing
treatment with regard to the conditional release plan
of the person may pr epare and file an affidavit under
oath if the agency or individual be lieves that the
person has failed to comply with the condition s of
release or that such person has progressed to the
point that inpatient care is appropriate.
(1) Any peace officer who re ceives such an affidavit
shall take the person into protective custod y and
return the person to the forensic unit of the
state hospital.
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(2) A hearing shall be conducted within three (3)
days, excluding holidays and weekends, after the
person is returned t o the forensic unit of the
state hospital to determine if the person has
violated the conditions of release, or if full-
time hospitalization is the least restrictive
alternative consistent with the needs of the
person and the need for public safety. Notic e of
the hearing shall be issued, at least twenty-four
(24) hours before the hearing, to the hospital
superintendent, the person, t rial counsel for the
person, and the patient advocate general of the
Department of Mental Health and Substance Abuse
Services. If the person requires hospitaliz ation
because of a violation of t he conditions of
release or because of progression to the poin t
that inpatient care is appropriate, the court may
then modify the conditions of release.
3. If the court determines that t he person is not dangerous to
the public peace or safety because the person is not a person
requiring treatment, it shall order tha t the person be discharged
from the custody of the Department of Mental Health and Substance
Abuse Services.
H. As used in this section:
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1. "Antisocial personality disorder" means antisocial
personality disorder as defined by the Diagnostic and Statistic al
Manual of Mental Disorders, 5th Edition (DSM -5), or subsequent
editions;
2. "Court" or "sentencing court" means the court sitting in the
county where the per son has been found to be not guil ty by reason of
mental illness or guilty with mental defect;
3. "Dangerous" means a person who because of mental illness
poses a substantial risk of physical harm in the near future to
another person or persons. Dangerous ness shall be determined by
such factors as whether the person has placed another person or
persons in a reasonable fear of violent behavior, and medication and
treatment compliance;
4. "Guilty with mental defect " means the person committed the
act and was either unable to understand the nature and consequence s
of his or her actions or was unable t o differentiate right from
wrong, and has been diagnosed with antisocial personality disorder
which substantially contributed to the act for which the person has
been charged;
5. "Mental defect" means the person has been diagnosed with
antisocial personality disorder which substantially contributed to
the act for which the person has been charged;
6. "Mental illness" means a substantial disorder of thought,
mood, perception, psychological orien tation or memory that
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significantly impairs judgment, behavior , capacity to recognize
reality or ability to meet the ordinary demands of life;
7. "Not guilty by reason of mental illness " means the person
committed the act while mentally ill and was either unable to
understand the nature and consequences of his or he r actions or was
unable to differentiate right from wrong, and has not been diagnosed
with antisocial personality disorder wh ich substantially contributed
to the act for which the person has bee n charged; and
8. a. "Person requiring treatment" means a person who
because of mental illness:
(1) poses a substantial risk of physical harm to self
as manifested by evidence or serious threats of
or attempts at suicide or other significant self -
inflicted bodily harm,
(2) poses a substantial risk of physical harm to
another person or persons as manifested by
evidence of violent behavior directed toward
another person or persons,
(3) has placed another person or persons in
reasonable fear of serious physica l harm or
violent behavior directed toward such person or
persons as manifested by serious and immediate
threats,
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(4) is in a condition of severe deterioration such
that, without immediat e intervention, there
exists a substantial risk that severe impairmen t
or injury will result to the person, or
(5) poses a substantial risk of serious physical
injury to self or death as manifested by evidence
that the person is unable to provide for and i s
not providing for his or her basic physical
needs.
b. The mental health or substance abuse history of the
person may be used as p art of the evidence to
determine whether the person is a person requiring
treatment. The mental health or substance abuse
history of the person shall not be the sole basis for
this determination.
c. Unless a person also meets the criteria established in
subparagraph a of this paragraph, "person requiring
treatment" shall not mean:
(1) a person whose mental processes have been
weakened or impaired by reason of adv anced years,
dementia or Alzheime r's disease,
(2) a person with intellectual or developmental
disability as defined in Title 10 of the Oklahoma
Statutes,
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(3) a person with seizure disorder, or
(4) a person with a traumat ic brain injury.
I. Proceedings hereunder may be held in conformance with the
provisions of Section 3006 of Title 20 of the Oklaho ma Statutes for
allowable use of videoconferencing.
SECTION 2. This act shall become effective November 1, 2023.
COMMITTEE REPORT BY: COMMITTEE ON JUDICIARY - CRIMINAL, dated
03/01/2023 - DO PASS, As Amended.