§704-411 Legal effect of acquittal on the ground of physical or mental disease, disorder, or defect excluding responsibility; commitment; conditional release; discharge; procedure for separate post-acquittal hearing. (1) When a defendant is acquitted on the ground of physical or mental disease, disorder, or defect excluding responsibility, the court, on the basis of the report made pursuant to section 704-404, if uncontested, or the medical or psychological evidence given at the trial or at a separate hearing, shall order that:
(a) The defendant shall be committed to the custody of the director of health to be placed in an appropriate institution for custody, care, and treatment if the court finds that the defendant:
(i) Is affected by a physical or mental disease, disorder, or defect;
(ii) Presents a risk of danger to self or others; and
(iii) Is not a proper subject for conditional release;
provided that the director of health shall place defendants charged with misdemeanors or felonies not involving violence or attempted violence in the least restrictive environment appropriate in light of the defendant's treatment needs and the need to prevent harm to the person confined and others. The county police departments shall provide to the director of health and the defendant copies of all police reports from cases filed against the defendant that have been adjudicated by the acceptance of a plea of guilty or nolo contendere, a finding of guilt, acquittal, acquittal pursuant to section 704-400, or by the entry of a plea of guilty or nolo contendere made pursuant to chapter 853; provided that the disclosure to the director of health and the defendant does not frustrate a legitimate function of the county police departments; provided further that expunged records, records of or pertaining to any adjudication or disposition rendered in the case of a juvenile, or records containing data from the United States National Crime Information Center shall not be provided. The county police departments shall segregate or sanitize from the police reports information that would result in the likelihood or actual identification of individuals who furnished information in connection with the investigation or who were of investigatory interest. Records shall not be re-disclosed except to the extent permitted by law;
(b) The defendant shall be granted conditional release with conditions as the court deems necessary if the court finds that the defendant is affected by physical or mental disease, disorder, or defect and that the defendant presents a danger to self or others, but that the defendant can be controlled adequately and given proper care, supervision, and treatment if the defendant is released on condition; or
(c) The defendant shall be discharged if the court finds that the defendant is no longer affected by physical or mental disease, disorder, or defect or, if so affected, that the defendant no longer presents a danger to self or others and is not in need of care, supervision, or treatment.
(2) The court, upon its own motion or on the motion of the prosecuting attorney or the defendant, shall order a separate post-acquittal hearing for the purpose of taking evidence on the issue of physical or mental disease, disorder, or defect and the risk of danger that the defendant presents to self or others.
(3) When ordering a hearing pursuant to subsection (2):
(a) In nonfelony cases, the court shall appoint a qualified examiner to examine and report upon the physical and mental condition of the defendant. The court may appoint either a psychiatrist or a licensed psychologist. The examiner may be designated by the director of health from within the department of health. The examiner shall be appointed from a list of certified examiners as determined by the department of health. The court, in appropriate circumstances, may appoint an additional examiner or examiners; and
(b) In felony cases, the court shall appoint three qualified examiners to examine and report upon the physical and mental condition of the defendant. In each case, the court shall appoint as examiners psychiatrists, licensed psychologists, or qualified physicians; provided that one of the three shall be a psychiatrist or licensed psychologist designated by the director of health from within the department of health. The three examiners shall be appointed from a list of certified examiners as determined by the department of health.
To facilitate the examination and the proceedings thereon, the court may cause the defendant, if not then confined, to be committed to a hospital or other suitable facility for the purpose of examination for a period not exceeding thirty days or a longer period as the court determines to be necessary for the purpose upon written findings for good cause shown. The court may direct that qualified physicians or psychologists retained by the defendant be permitted to witness the examination. The examination and report and the compensation of persons making or assisting in the examination shall be in accordance with section 704-404(3), (5)(a), (b), (d), and (e), (7), (8), (9), (10), and (11). As used in this section, the term "licensed psychologist" includes psychologists exempted from licensure by section 465-3(a)(3) and "qualified physician" means a physician qualified by the court for the specific evaluation ordered.
(4) Whether the court's order under subsection (1) is made on the basis of the medical or psychological evidence given at the trial, or on the basis of the report made pursuant to section 704-404, or the medical or psychological evidence given at a separate hearing, the burden shall be upon the State to prove, by a preponderance of the evidence, that the defendant is affected by a physical or mental disease, disorder, or defect and may not safely be discharged and that the defendant should be either committed or conditionally released as provided in subsection (1).
(5) In any proceeding governed by this section, the defendant's fitness shall not be an issue. [L 1972, c 9, pt of §1; am L 1974, c 54, §2; am L 1979, c 3, §2; am L 1983, c 281, §1; am L 1986, c 314, §8; am L 1987, c 145, §2; am L 1988, c 305, §7; am L 1992, c 88, §2; gen ch 1992; am L 1997, c 306, §3; am L 2006, c 230, §10; am L 2008, c 99, §3 and c 100, §3; am L 2009, c 127, §2; am L 2011, c 99, §2; am L 2016, c 198, §5 and c 231, §§8, 9; am L 2020, c 26, §4]
COMMENTARY ON §704-411
This section rejects the concept of mandatory commitment following a qualified acquittal on the basis of a physical or mental disease, disorder, or defect which precluded defendant's responsibility.[1] The Code instead authorizes a flexible mode of disposition of defendants thus acquitted, which depends on (1) the restraint necessary to protect other members of society and the defendant from the consequences of a recurrence of the prohibited conduct, and (2) the conditions necessary to afford the defendant proper care and supervision.
The Code recognizes three types of dispositions: commitment, conditional release, and discharge. The Code utilizes the concept of conditional release, which is presently recognized in the field of civil commitment, but leaves the ultimate determination of the conditions of release with the court, rather than with the medical authority to whom the defendant is entrusted.
Since the defendant has been detained for a substantial period of time for purposes of examination prior to the determination of the defendant's lack of responsibility, the examiners, in an appropriate case, may be able to indicate, at the trial or at a separate hearing, that commitment is not called for. In such a case, mandatory commitment followed by an application for release or discharge would be abusive and wasteful. Furthermore, a disease, disorder, or defect excluding responsibility which is influenced by biological or organic factors may be susceptible to adequate treatment (by means of drugs or otherwise) on an out-patient basis without danger to other members of society or may be such that repetition of the prohibited conduct is foreclosed. In such cases commitment should not be made mandatory.
Proof of penally prohibited conduct at the time of the alleged offense cannot be used as a justification for automatic commitment following an acquittal based on lack of responsibility.[2] A determination by the court will have to be made as to whether the defendant's condition at the time of disposition requires commitment, conditional release, or discharge. While proof of the commission of prohibited conduct and an acquittal predicated on lack of responsibility at the time of the conduct are relevant to and probative of present dangerousness, they are not substitutes for such a finding. Although the evidence at trial will be primarily devoted to a determination of the defendant's physical and mental condition at the time of the alleged offense, in certain cases the examiners may be able to indicate the risks which the defendant presents. In some cases a defendant, seeking to avoid penal liability on the basis of physical or mental disease, disorder, or defect excluding responsibility, may be quite willing to stipulate to the need for commitment or conditional release following acquittal. In such cases, it should not be necessary to require that the court hold a separate hearing for the purpose of determining the defendant's present condition and the risks the defendant presents.
The Code, therefore, provides in subsection (1) that the disposition order may be made on the basis of medical evidence given either at the trial or at a separate hearing. In those instances where the court believes that the evidence at trial is not sufficiently addressed to the risk of danger which the defendant presents to allow a determination of that issue, the court may order a separate hearing. Where either the prosecution or the defense believes that the evidence at the trial (including stipulations) is not dispositive of the issue of present danger, each is free to move for a separate post-acquittal hearing on that issue.
Subsection (3) provides that the procedure to be followed with respect to a separate post-acquittal hearing shall conform to §704-404 to the extent applicable.
Subsection (4) provides that the burden of proof with respect to the issue of present danger is on the government and that proof shall be by a preponderance of the evidence. This section is consistent with the burden the government must bear under §704-415 with respect to applications for discharge, conditional release, or modification of conditions of release.
Previous Hawaii law, which provided "that upon presentment of due proof that... [the defendant] has regained his sanity at the time of acquittal, the judge may release such person without... commital [sic],"3 fell short of the flexibility and safeguards provided in the Code. By making dangerousness the relevant criterion, the Code provides for possible commitment of a dangerous person even though the person's physical or mental condition at the time of commitment does not preclude penal responsibility. Furthermore, the Code specifically provides that the court, the prosecution, or the defendant may move for a separate post-acquittal hearing directed to the limited issue of present dangerousness. Consistent with the concept of tailoring the disposition of the irresponsible defendant to the condition of the defendant and the protection of others, the Code also recognizes conditional release (in addition to commitment and discharge) and provides for physical as well as mental conditions which preclude responsibility.
SUPPLEMENTAL COMMENTARY ON §704-411
Act 54, Session Laws 1974, amended subsection (3) to permit the use of a certified clinical psychologist as a member of the examination panel.
Act 3, Session Laws 1979, amended subsection (3) by modifying the requirements for the composition of examination panels to allow the courts greater flexibility in appointing mental health professionals.
Act 281, Session Laws 1983, amended subsection (1)(a) so that defendants charged with nonviolent crimes who are acquitted pursuant to chapter 704, may be placed in the least restrictive environment which takes into account the defendant's treatment needs and the need to prevent harm to the defendant and others. Also, subsections (1) and (2) were amended to delete a person's "danger to property" as a criteria justifying commitment, based on Suzuki v. Yuen, 617 F.2d 173 (9th Cir. 1980), in which the court found that criteria unconstitutionally broad. House Conference Committee Report No. 27.
Act 314, Session Laws 1986, amended "certified clinical psychologists" to "licensed psychologists." This change was made because psychologists are licensed and not certified and the term "clinical" does not accurately describe psychologists qualified to determine penal responsibility and fitness to proceed. Act 314 also provided an exception to the licensure requirement which recognizes that under §465-3(4), psychologists employed under government certification or civil service rules are exempt from the licensure requirement. Conference Committee Report No. 51-86.
Act 145, Session Laws 1987, permitted the department of health to set minimum standards for participation and appointment of a sanity examiner. The legislature felt this change would allow additional assurances of higher quality testimony by these examiners. Senate Standing Committee Report No. 691, House Standing Committee Report No. 1217.
Act 305, Session Laws 1988, included licensed psychologists among the professionals which may provide offender examination services to the Hawaii criminal justice system. The legislature stated that the present laws, which permit only psychiatric evaluation, are inconsistent with the many and varied uses the court has found for the services of licensed psychologists. Senate Standing Committee Report No. 2153.
Act 88, Session Laws 1992, made technical amendments to the section for purposes of clarity, consistency, and style. Senate Standing Committee Report No. 2579.
Act 306, Session Laws 1997, amended subsection (3) by, inter alia, allowing mental health examinations to be conducted by one rather than three examiners in nonfelony cases; the courts are allowed to appoint either a psychiatrist or a licensed psychologist as the examiner. In felony cases, three examiners are required, including at least one psychiatrist and one psychologist. The Act also limited the time period during which a defendant, if not then confined, may be committed by the court for examination, to not more than thirty days unless the court determines it necessary upon written findings. The amendment streamlines the process for committing and releasing mentally incompetent defendants. Conference Committee Report No. 64.
Act 230, Session Laws 2006, amended this section to, among other things, require that in a post-acquittal hearing, a defendant's fitness shall not be an issue for a defendant who has been acquitted on the grounds of physical or mental disease, disorder, or defect. House Standing Committee Report No. 665-06.
Act 99, Session Laws 2008, amended subsection (1) by requiring the county police departments to provide to the director of health and a defendant who is committed to the custody of the director, copies of certain police reports regarding that defendant. Act 99 expedited the records disclosure process for clinical evaluation purposes while protecting a patient's right of privacy. Conference Committee Report No. 161-08.
Act 100, Session Laws 2008, amended this section by authorizing the director of health or a committed person to apply to the court to conduct a hearing to assess any further need for inpatient hospitalization of a person who is acquitted on the ground of physical or mental disease, disorder, or defect excluding responsibility. Act 100 also required the court to complete the hearing process and render a decision within sixty days of the application, provided that for good cause, the court may extend the sixty day time frame upon the request of the director of health or the committed person. Conference Committee Report No. 37-08.
Act 127, Session Laws 2009, amended this section by repealing subsections (5), (6), and (7), which had been interpreted as having established an additional hearing and application procedure for persons committed to the Hawaii state hospital due to an acquittal based on the ground of physical or mental disease, disorder, or defect excluding responsibility. The repeal of the subsections clarified that §704-412 governs the timing and standards for conditional release or discharge from the custody of the director of health. Senate Standing Committee Report No. 533.
Act 99, Session Laws 2011, established a maximum one-year period of post-acquittal conditional release for persons charged with a petty misdemeanor, misdemeanor, or violation to promote the efficient use of criminal justice resources. The legislature found that although persons acquitted of criminal charges by reason of physical or mental disease, disorder, or defect may be released to the community on a post-acquittal conditional release after a court determines that the persons can be adequately controlled and given proper care, supervision, and treatment, there are many instances where people remain on conditional release far longer than the maximum penalty allowed for the offense charged. According to the department of health, ninety per cent of persons on conditional release in Hawaii for a misdemeanor or petty misdemeanor are kept on conditional release longer than they would have spent on maximum jail time or on probation for the same offense, sometimes up to twenty times longer. This increases the burden on staff and financial resources at district courts, probation offices, mental health centers, and hospitals. By establishing a specific time limit on the conditional release of persons charged with lesser offenses, Act 99 increases the availability of resources for more serious offenders. Senate Standing Committee Report No. 1170.
Act 198, Session Laws 2016, amended this section by making conforming amendments. Senate Standing Committee Report No. 2261. Act 198 also amended this section by adding the definition of "qualified physician."
Act 231, Session Laws 2016, amended subsections (1) and (3) to implement recommendations made by the Penal Code Review Committee convened pursuant to House Concurrent Resolution No. 155, S.D. 1 (2015).
Act 26, Session Laws 2020, amended this section to: (1) repeal the requirement that the three qualified examiners appointed to examine and report on the physical and mental condition of the defendant in a felony case include at least one psychiatrist and one licensed psychologist, and instead allow the appointment of any combination of psychiatrists, licensed psychologists, or qualified physicians, so long as one examiner is a psychiatrist or licensed psychologist designated by the director of health from within the department of health; and (2) amend the requisite contents of examination reports. The legislature noted significant increases in the number of individuals with mental illness that were arrested and remained in custody while awaiting a psychiatric evaluation of competency. If determined to be legally unfit to proceed with their cases, these individuals continued to remain in custody until restoration of their legal fitness to proceed. The legislature found that the mental health core steering committee, a collaboration of the department of health and the judiciary, published a Joint Report on January 9, 2020, proposing legislation to divert nonviolent petty misdemeanants living with mental illness from the criminal justice system within days of their arrest, rather than months, to further the goal of crime prevention, ensure appropriate diversion to community treatment, and further the goal of rehabilitation, among other amendments to existing statute. The legislature further found that Act 26 reflected the recommendations of the steering committee to achieve a more efficient and just response in the treatment of individuals with mental disorders within the criminal justice system. Senate Standing Committee Report No. 3757.
Law Journals and Reviews
Unfair Punishment of the Mentally Disabled? The Constitutionality of Treating Extremely Dangerous and Mentally Ill Insanity Acquittees in Prison Facilities. 23 UH L. Rev. 623 (2001).
Risky Business: Assessing Dangerousness in Hawai'i. 24 UH L. Rev. 63 (2001).
Case Notes
Prosecutor's comment that defendant, whose defense was insanity, would "walk the streets" if acquitted was improper. 58 H. 623, 574 P.2d 895 (1978).
Liability for subsequent harm done by criminal defendant placed on conditional release. 61 H. 253, 602 P.2d 532 (1979).
The difference in the burden of proof required for commitment under this section and under §334-60(b)(4)(I) does not render this section violative of due process or equal protection. 63 H. 186, 623 P.2d 881 (1981).
Where defendant failed to follow the procedural mechanisms set forth in this section by failing to request a post-acquittal hearing to address the issue of dangerousness in a proceeding separate from the trial proceedings, supreme court lacked appellate jurisdiction to review trial court's decision. 102 H. 130, 73 P.3d 668 (2003).
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§704-411 Commentary:
1. M.P.C. §4.08.
2. Bolton v. Harris, 395 F.2d 642 (1968).
3. H.R.S. §711-93.