AN ACT CONCERNING ALTERNATIVES TO INCARCERATION FOR PERSONS WITH PSYCHIATRIC DISABILITIES.
AN ACT CONCERNING ALTERNATIVES TO INCARCERATION FOR PERSONS WITH PSYCHIATRIC DISABILITIES.
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General Assembly

Substitute Bill No. 5516

    February Session, 2002

AN ACT CONCERNING ALTERNATIVES TO INCARCERATION FOR PERSONS WITH PSYCHIATRIC DISABILITIES.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Subsection (d) of section 54-56d of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2002):

(d) If the court finds that the request for an examination is justified and that, in accordance with procedures established by the judges of the Superior Court, there is probable cause to believe that the defendant has committed the crime for which he is charged, the court shall order an examination of the defendant as to his competency. The court either may appoint one or more physicians specializing in psychiatry to examine the defendant or it may order the Commissioner of Mental Health and Addiction Services to conduct the examination either by a clinical team consisting of a physician specializing in psychiatry, a clinical psychologist and one of the following: A clinical social worker licensed pursuant to chapter 383b or a psychiatric nurse clinical specialist holding a master's degree in nursing, or by one or more physicians specializing in psychiatry, except that no employee of the Department of Mental Health and Addiction Services who has served as a member of a clinical team in the course of such employment for at least five years prior to October 1, 1995, shall be precluded from being appointed as a member of a clinical team. If the Commissioner of Mental Health and Addiction Services is ordered to conduct the examination, he shall select the members of the clinical team or the physician or physicians. If the examiners determine that the defendant is not competent, they shall then determine whether there is substantial probability that the defendant, if provided with a course of treatment, will regain competency within the maximum period of any placement order under this section, or whether the defendant appears to be eligible for a civil commitment, with monitoring by the Court Support Services Division, pursuant to subdivision (2) of subsection (h) of this section, as amended by this act. The court may authorize a physician specializing in psychiatry, a clinical psychologist, a clinical social worker licensed pursuant to chapter 383b or a psychiatric nurse clinical specialist holding a master's degree in nursing selected by the defendant to observe the examination. Counsel for the defendant may observe the examination. The examination shall be completed within fifteen days from the date it was ordered and the examiner or examiners shall prepare and sign, without notarization, a written report and file it with the court within twenty-one business days of the date of the order. On receipt of the written report, the clerk of the court shall cause copies to be delivered immediately to the state's attorney and to counsel for the defendant.

Sec. 2. Subsection (h) of section 54-56d of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2002):

(h) (1) If, at the hearing, the court finds that there is a substantial probability that the defendant, if provided with a course of treatment, will regain competency within the period of any placement order under this section, the court shall either order placement of the defendant for treatment for the purpose of rendering him competent, or proceed pursuant to subdivision (2) of this subsection.

(2) (A) If, at the hearing, the court finds that there is a substantial probability that the defendant, if provided with a course of treatment, will regain competency within the period of any placement order under this section, the court may, on its own motion, on a motion by the state, or on a motion by the defendant, order placement of the defendant at a treatment facility pending civil commitment proceedings. The placement shall be in the custody of, and the treatment facility shall be determined by, the Commissioner of Mental Health and Addiction Services, the Commissioner of Children and Families or the Commissioner of Mental Retardation. Such order shall: (i) Include an authorization for the Commissioner of Mental Health and Addiction Services, the Commissioner of Children and Families or the Commissioner of Mental Retardation to apply for a civil commitment of such defendant pursuant to sections 17a-75 to 17a-83, inclusive, as amended, 17a-270 to 17a-283, inclusive, or 17a-495 to 17a-538, inclusive; (ii) permit the defendant to agree to participate voluntarily in a treatment plan devised by the Commissioner of Mental Health and Addiction Services, the Commissioner of Mental Retardation or the Commissioner of Children and Families, and monitored by the Court Support Services Division, and require that the defendant comply with such treatment plan; and (iii) provide that if the application for civil commitment is denied or not pursued by the Commissioner of Mental Health and Addiction Services, the Commissioner of Children and Families or the Commissioner of Mental Retardation, or if, in the case of a defendant who is participating voluntarily in a treatment plan, such defendant ceases such voluntary participation, the person in charge of the treatment facility or a designee shall submit a written progress report to the court pursuant to subsection (j) of this section, and the defendant shall be returned to the court for a hearing pursuant to subsection (k) of this section. The period of placement and monitoring under such order shall not exceed the period of the maximum sentence which the defendant could receive on conviction of the charges against such defendant, or eighteen months, whichever is less. The Court Support Services Division shall monitor the defendant's compliance with the court's order. If the defendant has complied, at the end of the period of placement and monitoring, the court shall approve the entry of a nolle prosequi to the charges against the defendant, or shall dismiss such charges.

(B) This subdivision shall not be applicable: (i) To any person charged with a class A felony, a class B felony, except a violation of section 53a-122 that does not involve the use, attempted use or threatened use of physical force against another person, or a violation of section 14-227a, as amended, subdivision (2) of subsection (a) of section 53-21, section 53a-56b, 53a-60d, 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b, (ii) to any person charged with a crime or motor vehicle violation who, as a result of the commission of such crime or motor vehicle violation, causes the death of another person, or (iii) unless good cause is shown, to any person charged with a class C felony.

Sec. 3. Subsection (j) of section 54-56d of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2002):

(j) The person in charge of the treatment facility or his designee shall submit a written progress report to the court (1) at least seven days prior to the date of any hearing on the issue of the defendant's competency; (2) whenever he believes that the defendant has attained competency; [or] (3) whenever he believes that there is not a substantial probability that the defendant will attain competency within the period covered by the placement order; or (4) whenever a defendant has been placed for treatment pursuant to subdivision (2) of subsection (h) of this section, as amended by this act and the application for civil commitment of such defendant is denied or not pursued. The progress report shall contain (A) the clinical findings of the person submitting the report and the facts on which the findings are based; (B) the opinion of the person submitting the report as to whether the defendant has attained competency or as to whether the defendant is making progress, under treatment, toward attaining competency within the period covered by the placement order; and (C) any other information concerning the defendant requested by the court, such as the method of treatment or the type, dosage and effect of any medication the defendant is receiving.

Sec. 4. Subsection (m) of section 54-56d of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2002):

(m) If at any time the court determines that there is not a substantial probability that the defendant will attain competency within the period of treatment allowed by this section, or if at the end of that period the court finds that the defendant is still not competent, the court shall either release the defendant from custody or order the defendant placed in the custody of the Commissioner of Mental Health and Addiction Services, the Commissioner of Children and Families or the Commissioner of Mental Retardation. The commissioner given custody or his designee shall then apply for civil commitment according to sections 17a-75 to 17a-83, inclusive, as amended, 17a-270 to 17a-283, inclusive, as amended, and 17a-495 to 17a-528, inclusive. The court shall hear arguments as to whether the defendant should be released or should be placed in the custody of the Commissioner of Mental Health and Addiction Services, the Commissioner of Children and Families or the Commissioner of Mental Retardation. If the court orders the release or placement in the custody of the Commissioner of Mental Health and Addiction Services, the Commissioner of Children and Families or the Commissioner of Mental Retardation of a defendant charged with the commission of a crime that resulted in the death or serious physical injury, as defined in section 53a-3, as amended, of another person, it may, on its own motion or on motion of the prosecuting authority, order, as a condition of such release, periodic examinations of the defendant as to his competency. Such an examination shall be conducted in accordance with subsection (d) of this section, as amended by this act. Upon receipt of the written report as provided in said subsection (d) the court shall, upon the request of either party filed not later than thirty days after the court receives such report, conduct a hearing as provided in subsection (e) of this section. Such hearing shall be held not later than ninety days after the court receives such report. If the court finds that the defendant has attained competency, he shall be returned to the custody of the Commissioner of Correction or released, if he has met the conditions for release, and the court shall continue with the criminal proceedings. Periodic examinations ordered by the court under this subsection shall continue until the court finds that the defendant has attained competency or until the time within which the defendant may be prosecuted for the crime with which he is charged, as provided in section 54-193 or 54-193a, has expired, whichever occurs first. The court shall dismiss, with or without prejudice, any charges for which a nolle prosequi is not entered when the time within which the defendant may be prosecuted for the crime with which he is charged, as provided in section 54-193 or 54-193a, has expired. Notwithstanding the erasure provisions of section 54-142a, police and court records and records of any state's attorney pertaining to a charge which is nolled or dismissed without prejudice while the defendant is not competent shall not be erased until the time for the prosecution of the defendant expires under section 54-193 or 54-193a. A defendant who is not civilly committed as a result of an application made by the Commissioner of Mental Health and Addiction Services, the Commissioner of Children and Families or the Commissioner of Mental Retardation pursuant to this section shall be released. A defendant who is civilly committed pursuant to such an application shall be treated in the same manner as any other civilly committed person.

Sec. 5. Subsection (n) of section 54-56d of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2002):

(n) The cost of the examination effected by the Commissioner of Mental Health and Addiction Services and of testimony of persons conducting the examination effected by the commissioner shall be paid by the Department of Mental Health and Addiction Services. The cost of the examination and testimony by physicians appointed by the court shall be paid by the Judicial Department. If the defendant is indigent, the fee of the person selected by the defendant to observe the examination and to testify on his behalf shall be paid by the Public Defender Services Commission. The expense of treating a defendant placed in the custody of the Commissioner of Mental Health and Addiction Services, the Commissioner of Children and Families or the Commissioner of Mental Retardation pursuant to subdivision (2) of subsection (h) or subsection (i) of this section shall be computed and paid for in the same manner as is provided for persons committed by a probate court under the provisions of sections 17b-19, 17b-63 to 17b-65, inclusive, 17b-116 to 17b-138, inclusive, as amended, 17b-220 to 17b-250, inclusive, as amended, 17b-256, as amended, 17b-259, as amended, 17b-263, 17b-287, 17b-340 to 17b-350, inclusive, as amended, 17b-689, 17b-689b and 17b-743 to 17b-747, inclusive, as amended.

Sec. 6. (NEW) (Effective October 1, 2002) (a) When used in this section, "eligible defendant" means a person found by the court to have a significant psychiatric disability or a history of treatment for a significant psychiatric disability, and who currently is in need of and would benefit from appropriate and available treatment programs, and "psychiatric disability" means a mental or emotional condition that has substantial adverse effects on the defendant's ability to function and requires the defendant to receive care and treatment, but shall not include an abnormality manifested primarily by repeated criminal or otherwise antisocial conduct.

(b) There shall be a pretrial program for alternative placement of eligible defendants accused of a crime or crimes or a motor vehicle violation or violations for which a sentence to a term of imprisonment may be imposed, which crimes or violations are not of a serious nature. Services pursuant to such program may be provided by the Commissioner of Mental Health and Addiction Services, by the Commissioner of Children and Families or through a private provider agreed upon by the state and the eligible defendant.

(c) The court may, in its discretion, invoke such program on motion of a state's attorney or prosecuting attorney, or on motion of the defendant, with respect to an eligible defendant (1) who agrees to disclose to the court the existence of any records of any prior cases and any pending cases concerning the eligible defendant that came before the courts of probate regarding such eligible defendant's mental health and the disposition of such cases, and (2) who can demonstrate to the satisfaction of the court the benefits to be gained by invoking such program, provided the eligible defendant shall agree thereto and provided notice has been given by the eligible defendant, on a form approved by the office of the Chief Court Administrator, to the victim or victims of such crime or motor vehicle violation, if any, by registered or certified mail and such victim or victims have an opportunity to be heard thereon. In determining whether to grant an application under this section with respect to a person who has been adjudged a youthful offender under the provisions of sections 54-76b to 54-76n of the general statutes, inclusive, as amended, more than five years prior to the date of such application, and notwithstanding the provisions of section 54-76l of the general statutes, the court shall have access to the youthful offender records of such person and may consider the nature and circumstances of the crime with which such person was charged as a youth.

(d) This section shall not be applicable: (1) To any person charged with a class A felony, a class B felony, except a violation of section 53a-122 of the general statutes that does not involve the use, attempted use or threatened use of physical force against another person, or a violation of section 14-227a, as amended, subdivision (2) of subsection (a) of section 53-21 of the general statutes, section 53a-56b, 53a-60d, 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b of the general statutes, (2) to any person charged with a crime or motor vehicle violation who, as a result of the commission of such crime or motor vehicle violation, causes the death of another person, or (3) unless good cause is shown, to any person charged with a class C felony.

(e) (1) Any eligible defendant who enters such program shall agree to the tolling of any statute of limitations with respect to such crime and to a waiver of the right to a speedy trial. Any such eligible defendant shall appear in court and shall, under such conditions as the court shall order, be released to the custody of the Court Support Services Division. If the eligible defendant refuses to accept, or, having accepted, violates such conditions, the eligible defendant's case shall be brought to trial. The period of such probation or supervision, or both, shall not exceed two years.

(2) The court shall order that as a condition of such probation the eligible defendant participate in a treatment plan. The treatment provider shall report every ninety days to the Court Support Services Division regarding the progress of the eligible defendant under the treatment plan, except, in the event of substantial noncompliance with the treatment plan, such report shall be made as soon as reasonably possible. An eligible defendant who participates in such program of alternative placement shall provide written consent for such reports for the duration of such program.

(3) The court may order that as a condition of such probation the defendant participate in the zero-tolerance drug supervision program established pursuant to section 53a-39d of the general statutes.

(4) If the defendant has reached the age of sixteen years but has not reached the age of eighteen years, the court may order that as a condition of such probation the eligible defendant be referred for services to a youth service bureau established pursuant to section 17a-39 of the general statutes, provided the court finds, through an assessment by a youth service bureau or its designee, that the eligible defendant is in need of and likely to benefit from such services.

(5) When determining any conditions of probation to order for a person entering such program who was charged with a misdemeanor that did not involve the use, attempted use or threatened use of physical force against another person or a motor vehicle violation, the court shall consider ordering the person to perform community service in the community in which the offense or violation occurred. If the court determines that community service is appropriate, such community service may be implemented by a community court established in accordance with section 51-181c of the general statutes if the offense or violation occurred within the jurisdiction of a community court established by said section.

(6) If the eligible defendant is charged with a violation of section 46a-58, 53-37a, 53a-181j, 53a-181k or 53a-181l of the general statutes, the court may order that as a condition of such probation the eligible defendant participate in a hate crimes diversion program as provided in subsection (f) of this section.

(f) If the court orders the eligible defendant to participate in a hate crimes diversion program as a condition of probation, the eligible defendant shall pay to the court a participation fee of four hundred twenty-five dollars. No person may be excluded from such program for inability to pay such fee, provided (1) such person files with the court an affidavit of indigency or inability to pay, (2) such indigency or inability to pay is confirmed by the Court Support Services Division, and (3) the court enters a finding thereof. The Judicial Department shall contract with service providers, develop standards and oversee appropriate hate crimes diversion programs to meet the requirements of this section. Any eligible defendant whose employment or residence makes it unreasonable to attend a hate crimes diversion program in this state may attend a program in another state which has standards substantially similar to, or higher than, those of this state, subject to the approval of the court and payment of the application and program fees as provided in this section. The hate crimes diversion program shall consist of an educational program and supervised community service.

(g) If an eligible defendant released to the custody of the Court Support Services Division satisfactorily completes such eligible defendant's period of probation, such eligible defendant may apply for dismissal of the charges against such eligible defendant and the court, on finding such satisfactory completion, shall dismiss such charges. If the eligible defendant does not apply for dismissal of the charges against such eligible defendant after satisfactorily completing such eligible defendant's period of probation, the court, upon receipt of a report submitted by the Court Support Services Division that the eligible defendant satisfactorily completed such eligible defendant's period of probation, may on its own motion make a finding of such satisfactory completion and dismiss such charges. Upon dismissal, all records of such charges shall be erased pursuant to section 54-142a of the general statutes. An order of the court denying a motion to dismiss the charges against an eligible defendant who has completed such eligible defendant's period of probation or supervision or terminating the participation of an eligible defendant in such program shall be a final judgment for purposes of appeal.

Sec. 7. Section 17a-681a of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2002):

Prior to the [arraignment] trial of a person charged [solely] with [the commission of a misdemeanor] a crime other than a class A felony or a class B felony, except a violation of section 53a-122 that does not involve the use, attempted use or threatened use of physical force against another person, the Department of Mental Health and Addiction Services shall, to the maximum extent possible within the limits of available appropriations, with the consent of the arrested person, cause a clinical assessment to be performed of any person who has previously received mental health services or treatment for substance abuse from the department or who would reasonably benefit from such services to determine whether such person should be referred for community-based mental health services. If the person is determined to be in need of such services and is willing to accept the services offered, the court shall be informed of the result of the assessment and the recommended treatment plan for consideration by the court in the disposition of the criminal case.

This act shall take effect as follows:

Section 1

October 1, 2002

Sec. 2

October 1, 2002

Sec. 3

October 1, 2002

Sec. 4

October 1, 2002

Sec. 5

October 1, 2002

Sec. 6

October 1, 2002

Sec. 7

October 1, 2002

JUD

Joint Favorable Subst.

HS

Joint Favorable

PH

Joint Favorable