Oklahoma 2023 Regular Session

Oklahoma House Bill HB1621 Compare Versions

Version 1 (Old)

Version 2 (New)

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3		-	HB1621 HFLR Page 1
4		-	BOLD FACE denotes Committee Amendments. 1
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31	28		STATE OF OKLAHOMA
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33	30		1st Session of the 59th Legislature (2023)
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35	32		COMMITTEE SUBSTITUTE
36	33		FOR
37	34		HOUSE BILL NO. 1621 By: Worthen
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43	40		COMMITTEE SUBSTITUTE
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45	42		An Act relating to criminal procedure; amending 22
46	43		O.S. 2021, Section 1161, which relates to insanity of
47	44		accused; modifying memberships of the Forensic Review
48	45		Board; and providing an effect ive date.
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53	50		BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
54	51		SECTION 1. AMENDATORY 22 O.S. 2021, Section 116 1, is
55	52		amended to read as follows:
56	53		Section 1161. A. 1. An act committed by a person in a state
57	54		of mental illness or mental defect shall be adjudicated as guil ty
58	55		with mental defect or as not guilty by reason of mental illness.
59	56		2. If a person is found gui lty with mental defect or enters a
60	57		plea of guilty with mental defect which is accepted by the court,
61	58		the court at the time of sentencing shall impose any senten ce that
62	59		could be imposed by law upon a person who is convicted of the same
63	60		offense, and the pers on shall serve the sentence in custody of a
64	61		county jail or the Oklahoma Department of Corrections.
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66		-	HB1621 HFLR Page 2
67		-	BOLD FACE denotes Committee Amendments. 1
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92	88		3. If a person who is found guilty with mental defect is pla ced
93	89		on probation under the jurisdiction of the sentencing court as
94	90		provided by law, the court sh all immediately issue an order for the
95	91		person to be examined by the Department of Mental Health and
96	92		Substance Abuse Services. The time and place of such examin ation
97	93		shall be determined by the Department. Within forty -five (45) days,
98	94		the Department shall provide to the court a recommendation of
99	95		treatment for the person, which shall be made a condition of
100	96		probation. Reports as specified by the trial judge shall be filed
101	97		with the probation officer and the sentencing court. Failure to
102	98		continue treatment, ex cept by agreement with the treating agency and
103	99		the sentencing court, is grounds for revocation of probation.
104	100		Treatment shall be provided by an agency of the De partment or, with
105	101		the approval of the sentencing court and at the expense of the
106	102		person, by private agencies, private physicians or other mental
107	103		health personnel. A psychiatric report shall be filed with the
108	104		probation officer and the sentencing court ever y six (6) months
109	105		during the period of probation.
110	106		4. When in any criminal action by indictment o r information,
111	107		the defense of mental illness is raised, but the defendant is not
112	108		acquitted on the ground that the defendant was mentally ill at the
113	109		time of the commission of the crime charged, an issue concerning
114	110		such defense may be raised on appeal. If t he appellate court finds
115	111		relief is required, the appellate court shall not have authority to
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117		-	HB1621 HFLR Page 3
118		-	BOLD FACE denotes Committee Amendments. 1
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143	138		modify the judgment or sentence, but will only have the authority t o
144	139		order a new trial or order resentencing without recommendations to
145	140		sentencing.
146	141		5. When in any criminal action by indictment or information the
147	142		defense of mental illness is interposed either singly or in
148	143		conjunction with some other defense, the jury shal l state in the
149	144		verdict, if it is one of acquittal, whether or not the defendant is
150	145		acquitted on the ground of mental illness. When the defendant is
151	146		acquitted on the ground that the defendant was mentally ill at the
152	147		time of the commission of the crime char ged, the person shall not be
153	148		discharged from custody until the court has made a determination
154	149		that the person is not dangerous to the public peace and safety and
155	150		is a person requiring treatment.
156	151		B. 1. To assist the court in its determination, the court
157	152		shall immediately issue an order for the person to be examined by
158	153		the Department of Mental Health and Substance Abuse Services at a
159	154		facility the Department has designated to examine and treat forensic
160	155		individuals. Upon the issuance of the order, the sherif f shall
161	156		deliver the person to the designated facility.
162	157		2. Within forty-five (45) days of the co urt entering such an
163	158		order, a hearing shall be conducted by the court to ascertain
164	159		whether the person is dangerous to the public peace or safety
165	160		because the person is a person requiring treatment or, if not, is in
166	161		need of continued supervision as a result of unresolved symptoms of
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168		-	HB1621 HFLR Page 4
169		-	BOLD FACE denotes Committee Amendments. 1
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194	188		mental illness or a history of treatment noncompliance. During the
195	189		required period of hospitalization the Department of Mental Health
196	190		and Substance Abuse Services shall have the person examined by two
197	191		qualified psychiatrists or o ne such psychiatrist and one qualified
198	192		clinical psychologist whose training and experience enable the
199	193		professional to form expert opinions regarding mental illn ess,
200	194		competency, dangerousness and criminal responsibility.
201	195		C. 1. Each examiner shall, within thirty-five (35) days of
202	196		hospitalization, individually prepare and submit to the court, the
203	197		district attorney and the trial counsel of the person a report of
204	198		the psychiatric examination findings of the person and an evaluation
205	199		concerning whether the person is dangerous to the public peace or
206	200		safety.
207	201		2. If the court is dissatisfied with the reports or if a
208	202		disagreement on the issue of mental illness and dangerous ness exists
209	203		between the two examiners, the court may designate one or more
210	204		additional examiners and have them submit their findings and
211	205		evaluations as specified in paragraph 1 of this subsection.
212	206		3. a. Within ten (10) days after the reports are filed, the
213	207		court must conduct a hearing to determine the present
214	208		condition of the person as to the issue of whether:
215	209		(1) the person is dangerous to the public peace or
216	210		safety because the person is a person requiring
217	211		treatment, or
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219		-	HB1621 HFLR Page 5
220		-	BOLD FACE denotes Committee Amendments. 1
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245	238		(2) if not believed to be dangerous t o the public
246	239		peace or safety, the person is in need of
247	240		continued supervision as a result of unre solved
248	241		symptoms of mental illness or a history of
249	242		treatment noncompliance.
250	243		b. The district attorney must establish the foregoing by
251	244		a preponderance of the evide nce. At this hearing the
252	245		person shall have the assistance of counsel and may
253	246		present independent evidence.
254	247		D. 1. If the court finds that the person is not dangerous to
255	248		the public peace or safety because the person is a person requiring
256	249		treatment and is not in need of continued supervision as a result of
257	250		unresolved symptoms of mental illness or a h istory of treatment
258	251		noncompliance, it shall immediately discharge the person from
259	252		hospitalization.
260	253		2. If the court finds that the person is dangerous to the
261	254		public peace and safety, it shall commit the person to the custody
262	255		of the Department of Mental Hea lth and Substance Abuse Services.
263	256		The person shall then be subject to discharge pursuant to the
264	257		procedure set forth in this section.
265	258		a. During the period of ho spitalization, the Department
266	259		of Mental Health and Substance Abuse Services may
267	260		administer or cause to be administered to the person
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269		-	HB1621 HFLR Page 6
270		-	BOLD FACE denotes Committee Amendments. 1
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295	287		such psychiatric, medical or other therapeutic
296	288		treatment as in its judgment should be administered.
297	289		b. The person shall be subject to discharge or
298	290		conditional release pursuant to the procedures set
299	291		forth in this section .
300	292		E. If at any time the court finds the person is not dangerous
301	293		to the public peace or safety because the person is a person
302	294		requiring treatment, but is in nee d of continued supervision as a
303	295		result of unresolved symptoms of mental illness or a history of
304	296		treatment noncompliance, the court may:
305	297		1. Discharge the person pursuant to the procedure set forth in
306	298		this section;
307	299		2. Discharge the person, and upon the mot ion of the court or
308	300		the district attorney commence civil involuntary commitment
309	301		proceedings against the person pursuant to the provisions of Title
310	302		43A of the Oklahoma Statutes; or
311	303		3. Order conditional release, as set forth in subsection F of
312	304		this section.
313	305		F. There is hereby created a Forensic Review Board to be
314	306		composed of seven (7) members appoint ed by the Governor with the
315	307		advice and consent of the Senate. The Board members shall serve for
316	308		a term of five (5) years except that for members first appointe d to
317	309		the Board: one shall serve for a term ending December 31, 2008, two
318	310		shall serve for a term ending December 31, 2009, two shall serve a
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320		-	HB1621 HFLR Page 7
321		-	BOLD FACE denotes Committee Amendments. 1
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346	337		term ending December 31, 2010, and two shall serve for a term ending
347	338		December 31, 2011.
348	339		1. The Board shall be comp osed of:
349	340		a. four licensed mental health professionals with
350	341		experience in treating mental illness , at least one of
351	342		whom is licensed as a Doctor of Medicine, a Doctor of
352	343		Osteopathy, or a licensed clinical psychologist and
353	344		who shall be appointed from a list of se ven names
354	345		submitted to the Governor by the Department of Mental
355	346		Health and Substance Abuse S ervices,
356	347		b. one member who shall be an attorney licensed to
357	348		practice in this state and shall be appointed from a
358	349		list of not less than three names submitted to the
359	350		Governor by the Board of Governors of the Oklahoma Bar
360	351		Association,
361	352		c. one member who shall be a retired judge licensed to
362	353		practice in this state and shall be appointed from a
363	354		list of not less than three names submitted to the
364	355		Governor by the Judicial Nomi nating Committee, and
365	356		d. one
366	357		b. three at-large member members.
367	358		The attorney and retired judg e members of the Board shall be
368	359		prohibited from representing in the courts of this state persons
369	360		charged with felony offenses while serving on the Board.
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371		-	HB1621 HFLR Page 8
372		-	BOLD FACE denotes Committee Amendments. 1
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397	387		2. The Board shall meet as necessary to deter mine which
398	388		individuals confined with the Department of M ental Health and
399	389		Substance Abuse Servic es are eligible for therapeutic visits,
400	390		conditional release or discharge and whether the Board wishes to
401	391		make such a recommen dation to the court of the county wh ere the
402	392		individual was found not guilty by reason of ins anity or not guilty
403	393		by reason of mental illness for those persons adjudicated as such
404	394		upon or after November 1, 2016.
405	395		a. Forensic Review Board meetings shall not be considered
406	396		subject to the Oklahoma Open Meeting Act and are not
407	397		open to the public. Other than the Forensic Review
408	398		Board members, only the following individuals shall be
409	399		permitted to attend Board meetings:
410	400		(1) the individual the Board is considering for
411	401		therapeutic visits, conditional rele ase or
412	402		discharge, his or her treatment advocate, and
413	403		members of his or her treatment team,
414	404		(2) the Commissioner of Mental Health and Substance
415	405		Abuse Services or designee,
416	406		(3) the Advocate General for the Department of Me ntal
417	407		Health and Substance Abuse Serv ices or designee,
418	408		(4) the General Counsel for the Depart ment of Mental
419	409		Health and Substance Abu se Services or designee,
420	410		and
421	411
422		-	HB1621 HFLR Page 9
423		-	BOLD FACE denotes Committee Amendments. 1
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448	437		(5) any other persons the Board and Commissioner of
449	438		Mental Health and Substance Abuse Services w ish
450	439		to be present.
451	440		b. The Department of Mental Health and Substance Abuse
452	441		Services shall provide administrative staff to the
453	442		Board to take minutes of meetings and prepare
454	443		necessary documents and correspondence for the Board
455	444		to comply with its duties as set forth in this
456	445		section. The Departm ent of Mental Health and
457	446		Substance Abuse Services shall also transport the
458	447		individuals being re viewed to and from the Board
459	448		meeting site.
460	449		c. The Board shall promulgate rules concerning the
461	450		granting and structure of thera peutic visits,
462	451		conditional releases and discharge.
463	452		d. For purposes of this subsection, "therapeutic visit"
464	453		means a scheduled time p eriod off campus which
465	454		provides for progressive tests of the ability of the
466	455		consumer to maintain and demonstrate coping skill s.
467	456		3. The Forensic Review Board sha ll submit any recommendation
468	457		for therapeutic visit, cond itional release or discharge to the cou rt
469	458		and district attorney of the county where the person was found not
470	459		guilty by reason of mental illness, the trial counsel o f the person,
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472		-	HB1621 HFLR Page 10
473		-	BOLD FACE denotes Committee Amendments. 1
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498	486		the Department of Ment al Health and Substance Abuse Services and the
499	487		person at least fourteen (14) days prior to the scheduled visit.
500	488		a. The district attorney may file an objection to a
501	489		recommendation for a therapeutic visit within ten (10)
502	490		days of receipt of the notice.
503	491		b. If an objection is filed, the therapeutic visit is
504	492		stayed until a hearing is held. The court shal l hold
505	493		a hearing not less than ten (10) days following an
506	494		objection to determine whether the therapeutic visit
507	495		is necessary for treatment, and if necessary, the
508	496		nature and extent of the visit.
509	497		4. During the period of hospitalization the Department of
510	498		Mental Health and Substance Abuse Services shall submit an annual
511	499		report on the status of the person to the court, the district
512	500		attorney and the patient advocate gen eral of the Department of
513	501		Mental Health and Substance Ab use Services.
514	502		G. Upon motion by the di strict attorney or upon a
515	503		recommendation for conditional release or discharge by the Forensic
516	504		Review Board, the court shall c onduct a hearing to ascertain if the
517	505		person is dangerous and a person requiring treatment. This hearing
518	506		shall be conducted under t he same procedure as the first hearing and
519	507		must occur not less than ten (10) days following the motion or
520	508		request by the Forensic Review Board.
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522		-	HB1621 HFLR Page 11
523		-	BOLD FACE denotes Committee Amendments. 1
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548	535		1. If the court determines that the person continues to be
549	536		dangerous to the public peace and safety because the person is a
550	537		person requiring treatment, it shall order the return of the person
551	538		to the hospital for additional treatment.
552	539		2. If the court determines that the p erson is not dangerous but
553	540		subject to certain conditions , the court may conditionally release
554	541		the person subject to the following:
555	542		a. the Forensic Review Board has made a recommendation
556	543		for conditional release, including a written plan for
557	544		outpatient treatment and a list of recommendations for
558	545		the court to place as conditions on the release,
559	546		b. in its order of conditional release, the court shall
560	547		specify conditions of release and shall direct the
561	548		appropriate agencies or p ersons to submit annual
562	549		reports regarding the compliance of the person with
563	550		the conditions of release and progress in treatment,
564	551		c. the person must agree, in writing, that during the
565	552		period the person is granted conditional release and
566	553		is subject to the pr ovisions thereof, there shall be
567	554		free transmission of all pertinent information,
568	555		including clinical information regarding the person,
569	556		among the Department of Mental Health and Substance
570	557		Abuse Services, the appropriate community mental
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572		-	HB1621 HFLR Page 12
573		-	BOLD FACE denotes Committee Amendments. 1
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598	584		health centers and th e appropriate district attorneys,
599	585		law enforcement and court personnel,
600	586		d. the order of the court placing the person on
601	587		conditional release shall include notice that the
602	588		conditional release of the person may be revoked upon
603	589		good cause. The person placed on conditional release
604	590		shall remain under the supervision of the Department
605	591		of Mental Health and Substance Abuse Services until
606	592		the committing court enters a final discharge order.
607	593		The Department of Mental Health and Substance Abuse
608	594		Services shall assess th e person placed on conditional
609	595		release annually and shall have the authority to
610	596		recommend discharge of the person to the Board, and
611	597		e. any agency or individual involved in providing
612	598		treatment with regard to the conditional release plan
613	599		of the person may pr epare and file an affidavit under
614	600		oath if the agency or individual believes that the
615	601		person has failed to comply with the condition s of
616	602		release or that such person has progressed to the
617	603		point that inpatient care is appropriate.
618	604		(1) Any peace officer who re ceives such an affidavit
619	605		shall take the person into protective custody and
620	606		return the person to the forensic unit of the
621	607		state hospital.
622	608
623		-	HB1621 HFLR Page 13
624		-	BOLD FACE denotes Committee Amendments. 1
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632	617		9
633	618		10
634	619		11
635	620		12
636	621		13
637	622		14
638	623		15
639	624		16
640	625		17
641	626		18
642	627		19
643	628		20
644	629		21
645	630		22
646	631		23
647	632		24
648	633
649	634		(2) A hearing shall be conducted within three (3)
650	635		days, excluding holidays and weekends, after the
651	636		person is returned t o the forensic unit of the
652	637		state hospital to determine if the person has
653	638		violated the conditions of release, or if full-
654	639		time hospitalization is the least restrictive
655	640		alternative consistent with the needs of the
656	641		person and the need for public safety. Notic e of
657	642		the hearing shall be issued, at least twenty-four
658	643		(24) hours before the hearing, to the hospital
659	644		superintendent, the person, t rial counsel for the
660	645		person, and the patient advocate general of the
661	646		Department of Mental Health and Substance Abuse
662	647		Services. If the person requires hospitaliz ation
663	648		because of a violation of the conditions of
664	649		release or because of progression to the poin t
665	650		that inpatient care is appropriate, the court may
666	651		then modify the conditions of release.
667	652		3. If the court determines that t he person is not dangerous to
668	653		the public peace or safety because the person is not a person
669	654		requiring treatment, it shall order tha t the person be discharged
670	655		from the custody of the Department of Mental Health and Substance
671	656		Abuse Services.
672	657		H. As used in this section:
673	658
674		-	HB1621 HFLR Page 14
675		-	BOLD FACE denotes Committee Amendments. 1
	659	+	Req. No. 7855 Page 14 1
676	660		2
677	661		3
678	662		4
679	663		5
680	664		6
681	665		7
682	666		8
683	667		9
684	668		10
685	669		11
686	670		12
687	671		13
688	672		14
689	673		15
690	674		16
691	675		17
692	676		18
693	677		19
694	678		20
695	679		21
696	680		22
697	681		23
698	682		24
699	683
700	684		1. "Antisocial personality disorder" means antisocial
701	685		personality disorder as defined by the Diagnostic and Statistic al
702	686		Manual of Mental Disorders, 5th Edition (DSM -5), or subsequent
703	687		editions;
704	688		2. "Court" or "sentencing court" means the court sitting in the
705	689		county where the per son has been found to be not guilty by reason of
706	690		mental illness or guilty with mental defect;
707	691		3. "Dangerous" means a person who because of mental illness
708	692		poses a substantial risk of physical harm in the near future to
709	693		another person or persons. Dangerous ness shall be determined by
710	694		such factors as whether the person has placed another person or
711	695		persons in a reasonable fear of violent behavior, and medication and
712	696		treatment compliance;
713	697		4. "Guilty with mental defect " means the person committed the
714	698		act and was either unable to understand the nature and consequence s
715	699		of his or her actions or was unable t o differentiate right from
716	700		wrong, and has been diagnosed with antisocial personality disorder
717	701		which substantially contributed to the act for which the person has
718	702		been charged;
719	703		5. "Mental defect" means the person has been diagnosed with
720	704		antisocial personality disorder which substantially contributed to
721	705		the act for which the person has been charged;
722	706		6. "Mental illness" means a substantial disorder of thought,
723	707		mood, perception, psychological orientation or memory that
724	708
725		-	HB1621 HFLR Page 15
726		-	BOLD FACE denotes Committee Amendments. 1
	709	+	Req. No. 7855 Page 15 1
727	710		2
728	711		3
729	712		4
730	713		5
731	714		6
732	715		7
733	716		8
734	717		9
735	718		10
736	719		11
737	720		12
738	721		13
739	722		14
740	723		15
741	724		16
742	725		17
743	726		18
744	727		19
745	728		20
746	729		21
747	730		22
748	731		23
749	732		24
750	733
751	734		significantly impairs judgment, behavior , capacity to recognize
752	735		reality or ability to meet the ordinary demands of life;
753	736		7. "Not guilty by reason of mental illness " means the person
754	737		committed the act while mentally ill and was either unable to
755	738		understand the nature and consequences of his or he r actions or was
756	739		unable to differentiate right from wrong, and has not been diagnosed
757	740		with antisocial personality disorder wh ich substantially contributed
758	741		to the act for which the person has been charged; and
759	742		8. a. "Person requiring treatment" means a person who
760	743		because of mental illness:
761	744		(1) poses a substantial risk of physical harm to self
762	745		as manifested by evidence or serious threats of
763	746		or attempts at suicide or other significant self -
764	747		inflicted bodily harm,
765	748		(2) poses a substantial risk of physical harm to
766	749		another person or persons as manifested by
767	750		evidence of violent behavior directed toward
768	751		another person or persons,
769	752		(3) has placed another person or persons in
770	753		reasonable fear of serious physical harm or
771	754		violent behavior directed toward such person or
772	755		persons as manifested by serious and immediate
773	756		threats,
774	757
775		-	HB1621 HFLR Page 16
776		-	BOLD FACE denotes Committee Amendments. 1
	758	+	Req. No. 7855 Page 16 1
777	759		2
778	760		3
779	761		4
780	762		5
781	763		6
782	764		7
783	765		8
784	766		9
785	767		10
786	768		11
787	769		12
788	770		13
789	771		14
790	772		15
791	773		16
792	774		17
793	775		18
794	776		19
795	777		20
796	778		21
797	779		22
798	780		23
799	781		24
800	782
801	783		(4) is in a condition of severe deterioration such
802	784		that, without immediat e intervention, there
803	785		exists a substantial risk that severe impairment
804	786		or injury will result to the person, or
805	787		(5) poses a substantial risk of serious physical
806	788		injury to self or death as manifested by evidence
807	789		that the person is unable to provide for and i s
808	790		not providing for his or her basic physical
809	791		needs.
810	792		b. The mental health or substance abuse history of the
811	793		person may be used as p art of the evidence to
812	794		determine whether the person is a person requiring
813	795		treatment. The mental health or substance abuse
814	796		history of the person shall not be the sole basis for
815	797		this determination.
816	798		c. Unless a person also meets the criteria established in
817	799		subparagraph a of this paragraph, "person requiring
818	800		treatment" shall not mean:
819	801		(1) a person whose mental processes have been
820	802		weakened or impaired by reason of adv anced years,
821	803		dementia or Alzheimer 's disease,
822	804		(2) a person with intellectual or developmental
823	805		disability as defined in Title 10 of the Oklahoma
824	806		Statutes,
825	807
826		-	HB1621 HFLR Page 17
827		-	BOLD FACE denotes Committee Amendments. 1
	808	+	Req. No. 7855 Page 17 1
828	809		2
829	810		3
830	811		4
831	812		5
832	813		6
833	814		7
834	815		8
835	816		9
836	817		10
837	818		11
838	819		12
839	820		13
840	821		14
841	822		15
842	823		16
843	824		17
844	825		18
845	826		19
846	827		20
847	828		21
848	829		22
849	830		23
850	831		24
851	832
852	833		(3) a person with seizure disorder, or
853	834		(4) a person with a traumat ic brain injury.
854	835		I. Proceedings hereunder may be held in conformance with the
855	836		provisions of Section 3006 of Title 20 of the Oklaho ma Statutes for
856	837		allowable use of videoconferencing.
857	838		SECTION 2. This act shall become effective November 1, 2023.
858	839
859		-	COMMITTEE REPORT BY: COMMITTEE ON JUDICIARY - CRIMINAL, dated
860		-	03/01/2023 - DO PASS, As Amended.
	840	+	59-1-7855 GRS 03/01/23
	841	+
	842	+