76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1540
A-Engrossed
House Bill 2701
Ordered by the House April 28
Including House Amendments dated April 28
Introduced and printed pursuant to House Rule 12.00. Presession
filed (at the request of House Interim Committee on Judiciary
for Disability Rights Oregon)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
{ - Modifies process for commitment of persons found guilty
except for insanity or found to be incapacitated. Authorizes
court or Psychiatric Security Review Board to commit person to
custody of Oregon Health Authority. - }
{ - Requires court to conditionally release person found
guilty except for insanity of misdemeanor. - }
{ - Directs Oregon Health Authority to certify psychiatrists
and psychologists for purposes of certain evaluations of persons
found guilty except for insanity or found to be
incapacitated. - }
{ - Requires that certain court-ordered evaluations of
defendant be conducted by certified psychiatrist or
psychologist. - }
{ + Directs superintendent of state hospital to notify
Psychiatric Security Review Board when person committed to
hospital after being found guilty except for insanity no longer
requires hospital care. Requires board to conditionally release
person within 60 days of receipt of notice.
Requires superintendent of state hospital to prepare treatment
plan for, and conduct certain assessments of, persons committed
to hospital after being found guilty except for insanity.
Requires Oregon Health Authority to adopt rules describing
contents of, and timelines applicable to, treatment plan and
assessments.
Modifies manner of calculating initial custody date of person
committed to state hospital as result of lack of fitness to
proceed with criminal trial. + }
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to crime; creating new provisions; amending ORS 161.327,
161.332, 161.336, 161.341, 161.346, 161.370 and 161.390; and
declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1)(a) When a person is committed to a state
hospital under ORS 161.315 to 161.351, the superintendent shall
conduct an initial clinical assessment and an initial risk
assessment of the person in accordance with the rules adopted
under ORS 161.390.
(b) After the initial clinical assessment and the initial risk
assessment described in paragraph (a) of this subsection is
conducted, the superintendent shall update the clinical
assessment and risk assessment of the person in accordance with
the rules adopted under ORS 161.390.
(2) The superintendent shall prepare a treatment plan for the
person in accordance with the rules adopted under ORS 161.390
after the initial clinical assessment and the initial risk
assessment are completed. Following the completion of a
subsequent clinical assessment and risk assessment described in
subsection (1)(b) of this section, the superintendent shall
update the treatment plan to address the person's progress toward
meeting the plan and any changed treatment, conditional release
or discharge needs.
(3) When the superintendent determines that a person committed
to a state hospital under ORS 161.315 to 161.351 has met the
clinical goals set for the person and no longer requires hospital
care, the superintendent shall notify the Psychiatric Security
Review Board and the Oregon Health Authority of that
determination.
(4) If a preconditional release plan or a predischarge plan has
not been completed on the date the superintendent makes the
notification described in subsection (3) of this section, the
authority shall complete the plan within 45 days.
(5) As used in this section, 'superintendent' means the
superintendent of the state hospital to which the person is
committed, or the superintendent's authorized representative. + }
SECTION 2. ORS 161.336 is amended to read:
161.336. (1) { + (a) + } If the Psychiatric Security Review
Board determines that the person presents a substantial danger to
others but can be adequately controlled with supervision and
treatment if conditionally released and that necessary
supervision and treatment are available, the board may order the
person conditionally released { - , - } { + .
(b) When the superintendent, as defined in section 1 of this
2011 Act, notifies the board under section 1 of this 2011 Act
that a person under the jurisdiction of the board has met the
clinical goals set for the person and no longer requires hospital
care, the board shall order the person conditionally released no
later than 60 days after receiving the notice. When a person is
conditionally released under this paragraph:
(A) The board may not require the person to reside in a setting
that is more restrictive than necessary, as determined by the
most recent risk assessment; and
(B) The conditions of release must meet the person's treatment
and support services needs and the person's community placement
preferences.
(c) When a person is conditionally released under this section,
the person is + } subject to those supervisory orders of the
board as are in the best interests of justice, the protection of
society and the welfare of the person. The board may designate
any person or state, county or local agency the board considers
capable of supervising the person upon release, subject to those
conditions as the board directs in the order for conditional
release. Prior to the designation, the board shall notify the
person or agency to whom conditional release is contemplated and
provide the person or agency an opportunity to be heard before
the board. After receiving an order entered under this section,
the person or agency designated shall assume supervision of the
person pursuant to the direction of the board.
(2) Conditions of release contained in orders entered under
this section may be modified from time to time and conditional
releases may be terminated by order of the board as provided in
ORS 161.351.
(3) For purposes of this section, a person affected by a mental
disease or defect in a state of remission is considered to have a
mental disease or defect requiring supervision when the disease
may, with reasonable medical probability, occasionally become
active and, when active, render the person a danger to others.
The person may be continued on conditional release by the board
as provided in this section.
(4)(a) As a condition of release, the board may require the
person to report to any state or local mental health facility for
evaluation. Whenever medical, psychiatric or psychological
treatment is recommended, the board may order the person, as a
condition of release, to cooperate with and accept the treatment
from the facility.
(b) The facility to which the person has been referred for
evaluation shall perform the evaluation and submit a written
report of its findings to the board. If the facility finds that
treatment of the person is appropriate, it shall include its
recommendations for treatment in the report to the board.
(c) Whenever treatment is provided by the facility, it shall
furnish reports to the board on a regular basis concerning the
progress of the person.
(d) Copies of all reports submitted to the board pursuant to
this section shall be furnished to the person and the person's
counsel. The confidentiality of these reports is determined
pursuant to ORS 192.501 to 192.505.
(e) The facility shall comply with any other conditions of
release prescribed by order of the board.
(5) { + (a) + } If at any time while the person is under the
jurisdiction of the board it appears to the board or its
chairperson that the person has violated the terms of the
conditional release or that the mental health of the individual
has changed, the board or its chairperson may order the person
{ - returned for evaluation or treatment to a state hospital
designated by the Oregon Health Authority if the person is at
least 18 years of age, or to a secure intensive community
inpatient facility designated by the authority - } { + placed
in a residential facility or, + } if the person is under 18 years
of age { + , placed in a secure intensive community inpatient
facility, designated by the Oregon Health Authority + }. A
written order of the board, or its chairperson on behalf of the
board, is sufficient warrant for any law enforcement officer to
take into custody such person and transport the person
accordingly. A sheriff, municipal police officer, constable,
parole and probation officer, prison official or other peace
officer shall execute the order, and the person shall be
{ - returned as soon as practicable to the custody of the
authority - } { + transported to the facility designated in the
order as soon as practicable + }.
{ + (b) The community mental health program director, the
director of the facility providing treatment to a person on
conditional release, any peace officer or any person responsible
for the supervision of a person on conditional release may take a
person on conditional release into custody or request that the
person be taken into custody if there is reasonable cause to
believe that the person is a substantial danger to others because
of mental disease or defect and that the person is in need of
immediate care, custody or treatment. Any person taken into
custody pursuant to this paragraph shall be transported as soon
as practicable to a residential facility or, if the person is
under 18 years of age, to a secure intensive community inpatient
facility, designated by the Oregon Health Authority.
(c) When a person is placed in a residential facility or a
secure intensive community inpatient facility under this
subsection, the board shall order an evaluation of the
person. + }
{ + (d) + } Within 20 days following the { - return of the
person to the custody of the authority - } { + placement of the
person in a residential facility or a secure intensive community
inpatient facility + }, the board shall conduct a hearing. Notice
of the time and place of the hearing shall be given to the
person, the attorney representing the person and the Attorney
General. The board { - may - } { + shall + } continue the
person on conditional release { - or, if it - } { + if the
evaluation ordered under paragraph (c) of this subsection
indicates that the person does not require hospital care. If the
evaluation ordered under paragraph (c) of this subsection
indicates that the person requires hospital care and the
board + } finds by a preponderance of the evidence that the
person is affected by mental disease or defect and presents a
substantial danger to others and cannot be adequately controlled
if conditional release is continued, { - it may - } { + the
board shall + }order the person committed to a state hospital
{ - designated by the authority if the person is at least 18
years of age, - } or { + , if the person is under 18 years of
age, + } to a secure intensive community inpatient
facility { + , + } designated by the { + Oregon Health + }
Authority { - if the person is under 18 years of age. - } The
state must prove by a preponderance of the evidence the person's
unfitness for conditional release. A person in custody pursuant
to this subsection has the same rights as any person appearing
before the board pursuant to ORS 161.346.
{ - (6) The community mental health program director, the
director of the facility providing treatment to a person on
conditional release, any peace officer or any person responsible
for the supervision of a person on conditional release may take a
person on conditional release into custody or request that the
person be taken into custody if there is reasonable cause to
believe the person is a substantial danger to others because of
mental disease or defect and that the person is in need of
immediate care, custody or treatment. Any person taken into
custody pursuant to this subsection shall be transported as soon
as practicable to a state hospital designated by the authority if
the person is at least 18 years of age, or to a secure intensive
community inpatient facility designated by the authority if the
person is under 18 years of age. A person taken into custody
under this subsection has the same rights as any person appearing
before the board pursuant to ORS 161.346. - }
{ - (7)(a) - } { + (6)(a) + } Any person conditionally
released under this section may apply to the board for discharge
from or modification of an order of conditional release on the
ground that the person is no longer affected by mental disease or
defect or, if still so affected, no longer presents a substantial
danger to others and no longer requires supervision, medication,
care or treatment. Notice of the hearing on an application for
discharge or modification of an order of conditional release
shall be made to the Attorney General. The applicant, at the
hearing pursuant to this subsection, must prove by a
preponderance of the evidence the applicant's fitness for
discharge or modification of the order of conditional release.
Applications by the person for discharge or modification of
conditional release shall not be filed more often than once every
six months.
(b) Upon application by any person or agency responsible for
supervision or treatment pursuant to an order of conditional
release, the board shall conduct a hearing to determine if the
conditions of release shall be continued, modified or terminated.
The application shall be accompanied by a report setting forth
the facts supporting the application.
{ - (8) - } { + (7) + } The total period of commitment and
conditional release ordered pursuant to this section may not
exceed the maximum sentence provided by statute for the crime for
which the person was found guilty except for insanity.
{ - (9) - } { + (8) + } The board shall maintain and keep
current the medical, social and criminal history of all persons
committed to its jurisdiction. The confidentiality of records
maintained by the board shall be determined pursuant to ORS
192.501 to 192.505.
{ - (10) - } { + (9) + } In determining whether a person
should be committed to a state hospital or to a secure intensive
community inpatient facility, conditionally released or
discharged, the board shall have as its primary concern the
protection of society.
SECTION 3. ORS 161.341 is amended to read:
161.341. (1) If the Psychiatric Security Review Board finds,
upon its initial hearing, that the person presents a substantial
danger to others and is not a proper subject for conditional
release, the board shall order the person committed to, or
retained in, a state hospital designated by the Oregon Health
Authority if the person is at least 18 years of age, or to a
secure intensive community inpatient facility designated by the
authority if the person is under 18 years of age, for custody,
care and treatment. The period of commitment ordered by the board
may not exceed the maximum sentence provided by statute for the
crime for which the person was found guilty except for insanity.
(2) { + (a) + } If at any time after the commitment of a person
to a state hospital, or to a secure intensive community inpatient
facility, designated by the authority under this section, the
superintendent of the hospital or the director of the secure
intensive community inpatient facility is of the opinion that the
person is no longer affected by mental disease or defect, or, if
so affected, no longer presents a substantial danger to others
{ - or that the person continues to be affected by mental
disease or defect and continues to be a danger to others, but
that the person can be controlled with proper care, medication,
supervision and treatment if conditionally released - } , the
superintendent or director shall apply to the board for an order
of discharge { - or conditional release - } . The application
shall be accompanied by a report setting forth the facts
supporting the opinion of the superintendent or director.
{ + (b) If, at any time after the commitment of a person to a
secure intensive community inpatient facility, the director of
the facility is of the opinion that the person continues to be a
danger to others, but that the person can be controlled with
proper care, medication, supervision and treatment if
conditionally released, the director shall apply to the board for
an order of conditional release. + } { - If the application is
for conditional release, - } The application must { - also - }
be accompanied by { + a report setting forth the facts
supporting the opinion of the director and + } a verified
conditional release plan.
{ + (c) + } The board shall hold a hearing on { - the - }
{ + an + } application { + described in this subsection + }
within 60 days of its receipt. Not less than 20 days prior to the
hearing before the board, copies of the report shall be sent to
the Attorney General.
(3) The attorney representing the state may choose a
psychiatrist or licensed psychologist to examine the person prior
to the initial or any later decision by the board on discharge or
conditional release. The results of the examination shall be in
writing and filed with the board, and shall include, but need not
be limited to, an opinion as to the mental condition of the
person, whether the person presents a substantial danger to
others and whether the person could be adequately controlled with
treatment as a condition of release.
(4) Any person who has been committed to a state hospital, or
to a secure intensive community inpatient facility, designated by
the authority for custody, care and treatment or another person
acting on the person's behalf may apply to the board for an order
of discharge or conditional release upon the grounds:
(a) That the person is no longer affected by mental disease or
defect;
(b) If so affected, that the person no longer presents a
substantial danger to others; or
(c) That the person continues to be affected by a mental
disease or defect and would continue to be a danger to others
without treatment, but that the person can be adequately
controlled and given proper care and treatment if placed on
conditional release.
(5) When application is made under subsection (4) of this
section, the board shall require that a report from the
superintendent of the hospital or the director of the secure
intensive community inpatient facility be prepared and
transmitted as provided in subsection (2) of this section. The
applicant must prove by a preponderance of the evidence the
applicant's fitness for discharge or conditional release under
the standards of subsection (4) of this section, unless more than
two years has passed since the state had the burden of proof on
that issue, in which case the state shall have the burden of
proving by a preponderance of the evidence the applicant's lack
of fitness for discharge or conditional release. Applications for
discharge or conditional release under subsection (4) of this
section shall not be filed more often than once every six months
commencing with the date of the initial board hearing.
(6) The board is not required to hold a hearing on a first
application under subsection (4) of this section any sooner than
90 days after the initial hearing. However, hearings resulting
from any subsequent requests shall be held within 60 days of the
filing of the application.
(7)(a) In no case shall any person committed by the court under
ORS 161.327 to a state hospital, or to a secure intensive
community inpatient facility, designated by the authority be held
in the hospital or facility for more than 90 days from the date
of the court's commitment order without an initial hearing before
the board to determine whether the person should be conditionally
released or discharged.
(b) In no case shall a person be held pursuant to this section
for a period of time exceeding two years without a hearing before
the board to determine whether the person should be conditionally
released or discharged.
SECTION 4. ORS 161.346 is amended to read:
161.346. (1) The Psychiatric Security Review Board shall
conduct hearings upon any application for discharge, conditional
release, commitment or modification filed pursuant to ORS
161.336, 161.341 or 161.351 and as otherwise required by ORS
161.336 to 161.351 and shall make findings on the issues before
{ - it which may include - } { + the board. Except as
otherwise provided in ORS 161.336 and subsection (2) of this
section + }:
(a) If the board finds that the person is no longer affected by
mental disease or defect, or, if so affected, no longer presents
a substantial danger to others, the board shall order the person
discharged from commitment or from conditional release.
(b) If the board finds that the person is still affected by a
mental disease or defect and is a substantial danger to others,
but can be controlled adequately if conditionally released with
treatment as a condition of release, the board shall order the
person conditionally released as provided in ORS 161.336.
(c) If the board finds that the person has not recovered from
the mental disease or defect and is a substantial danger to
others and cannot adequately be controlled if conditionally
released on supervision, the board shall order the person
committed to, or retained in, a state hospital designated by the
Oregon Health Authority if the person is at least 18 years of
age, or a secure intensive community inpatient facility
designated by the authority if the person is under 18 years of
age, for care, custody and treatment.
(2) At any time, the board may appoint a psychiatrist or
licensed psychologist to examine the person and to submit a
report to the board. Reports filed with the board pursuant to the
examination shall include, but need not be limited to, an opinion
as to the mental condition of the person and whether the person
presents a substantial danger to others, and whether the person
could be adequately controlled with treatment as a condition of
release. To facilitate the examination of the person, the board
may order the person placed in the temporary custody of { - any
state hospital or other suitable facility. - } { + a
residential facility or a secure intensive community inpatient
facility. When the board places a person in the temporary custody
of a facility under this subsection, the board may not order the
person committed to a state hospital, or if the person is under
18 years of age, to a secure intensive community inpatient
facility, unless the examination indicates that the person
requires hospital care. + }
(3) The board may make the determination regarding discharge or
conditional release based upon the written reports submitted
pursuant to this section. If any member of the board desires
further information from the examining psychiatrist or licensed
psychologist who submitted the report, these persons shall be
summoned by the board to give testimony. The board shall consider
all evidence available to it which is material, relevant and
reliable regarding the issues before the board. Such evidence may
include but is not limited to the record of trial, the
information supplied by the attorney representing the state or by
any other interested party, including the person, and information
concerning the person's mental condition and the entire
psychiatric and criminal history of the person. All evidence of a
type commonly relied upon by reasonably prudent persons in the
conduct of their serious affairs shall be admissible at hearings.
Testimony shall be taken upon oath or affirmation of the witness
from whom received. The officer presiding at the hearing shall
administer oaths or affirmations to witnesses.
(4) The board shall furnish to the person about whom the
hearing is being conducted, the attorney representing the person,
the Attorney General, the district attorney and the court or
department of the county from which the person was committed
written notice of any hearing pending under this section within a
reasonable time prior to the hearing. The notice shall include:
(a) The time, place and location of the hearing.
(b) The nature of the hearing and the specific action for which
a hearing has been requested, the issues to be considered at the
hearing and a reference to the particular sections of the
statutes and rules involved.
(c) A statement of the authority and jurisdiction under which
the hearing is to be held.
(d) A statement of all rights under subsection (6) of this
section.
(5) Prior to the commencement of a hearing, the board or
presiding officer shall serve personally or by mail a written
notice to each party as provided in ORS 183.413 (2).
(6) At the hearing, the person about whom the hearing is being
held shall have the right:
(a) To appear at all proceedings held pursuant to this section,
except board deliberations.
(b) To cross-examine all witnesses appearing to testify at the
hearing.
(c) To subpoena witnesses and documents as provided in ORS
161.395.
(d) To be represented by suitable legal counsel possessing
skills and experience commensurate with the nature and complexity
of the case, to consult with counsel prior to the hearing and, if
financially eligible, to have suitable counsel appointed at state
expense.
(e) To examine all information, documents and reports which the
board considers. If then available to the board, the information,
documents and reports shall be disclosed to the person so as to
allow examination prior to the hearing.
(7) A record shall be kept of all hearings before the board,
except board deliberations.
(8) Upon request of any party before the board, or on its own
motion, the board may continue a hearing for a reasonable period
not to exceed 60 days to obtain additional information or
testimony or for other good cause shown.
(9) Within 15 days following the conclusion of the hearing, the
board shall provide to the person, the attorney representing the
person, the Attorney General or other attorney representing the
state, if any, written notice of the board's decision.
(10) The burden of proof on all issues at hearings of the board
shall be by a preponderance of the evidence.
(11) If the board determines that the person about whom the
hearing is being held is financially eligible, the board shall
appoint suitable counsel to represent the person. Counsel so
appointed shall be an attorney who satisfies the professional
qualifications established by the Public Defense Services
Commission under ORS 151.216. The public defense services
executive director shall determine and allow fair compensation
for counsel appointed under this subsection and the reasonable
expenses of the person in respect to the hearing. Compensation
payable to appointed counsel shall not be less than the
applicable compensation level established under ORS 151.216. The
compensation and expenses so allowed shall be paid by the public
defense services executive director from funds available for the
purpose.
(12) The Attorney General may represent the state at contested
hearings before the board unless the district attorney of the
county from which the person was committed elects to represent
the state. The district attorney of the county from which the
person was committed shall cooperate with the Attorney General in
securing the material necessary for presenting a contested
hearing before the board. If the district attorney elects to
represent the state, the district attorney shall give timely
written notice of such election to the Attorney General, the
board and the attorney representing the person.
SECTION 5. ORS 161.390 is amended to read:
161.390. (1) The Oregon Health Authority shall promulgate rules
for the assignment of persons to state mental hospitals
{ - or - } { + , + } secure intensive community inpatient
facilities { + or residential facilities + } under ORS
{ - 161.341 - } { + 161.315 to 161.351 + }, 161.365 and
161.370 and for establishing standards for evaluation and
treatment of persons committed to a state hospital or a secure
intensive community inpatient facility, designated by the
authority, or ordered to a community mental health program under
ORS 161.315 to 161.351.
(2) Whenever the Psychiatric Security Review Board requires the
preparation of a predischarge or preconditional release plan
before a hearing or as a condition of granting discharge or
conditional release for a person committed under ORS 161.327 or
161.341 to a state hospital or a secure intensive community
inpatient facility for custody, care and treatment, the authority
is responsible for and shall prepare the plan.
(3) In carrying out a conditional release plan prepared under
subsection (2) of this section, the authority may contract with a
community mental health program, other public agency or private
corporation or an individual to provide supervision and treatment
for the conditionally released person.
{ + (4)(a) The Oregon Health Authority shall, after
consulting with the Oregon State Hospital Advisory Board, adopt
rules prescribing:
(A) The contents of the clinical assessments, risk assessments
and treatment plans conducted or prepared under section 1 of this
2011 Act.
(B) The period of time within which the initial clinical
assessment and initial risk assessment described in section 1
(1)(a) of this 2011 Act must be completed following the
commitment of a person to a state hospital under ORS 161.315 to
161.351.
(C) The period of time within which the treatment plan must be
prepared, following the completion of the initial clinical
assessment and initial risk assessment.
(D) The frequency of the subsequent clinical assessments and
risks assessments described in section 1 (1)(b) of this 2011 Act.
(b) The rules adopted under this subsection must represent
appropriate practices for psychiatric hospital settings and must
meet or exceed the assessment and treatment standards of a
psychiatric hospital accrediting organization approved by the
authority.
(c) The superintendent of each state hospital shall regularly
report to the Oregon State Hospital Advisory Board on the
hospital's compliance with the rules adopted under this
section. + }
SECTION 6. ORS 161.332 is amended to read:
161.332. As used in ORS 161.315 to 161.351 and 161.385 to
161.395 { - , - } { + :
(1) + } 'Conditional release' includes, but is not limited to,
the monitoring of mental and physical health treatment.
{ + (2) 'Residential facility' has the meaning given that
term in ORS 443.400. + }
SECTION 7. ORS 161.370 is amended to read:
161.370. (1) When the defendant's fitness to proceed is drawn
in question, the issue shall be determined by the court. If
neither the prosecuting attorney nor counsel for the defendant
contests the finding of the report filed by a psychiatrist or
psychologist under ORS 161.365, the court may make the
determination on the basis of such report. If the finding is
contested, the court shall hold a hearing on the issue. If the
report is received in evidence upon such hearing, the party who
contests the finding thereof shall have the right to summon and
to cross-examine any psychiatrist or psychologist who submitted
the report and to offer evidence upon the issue. Other evidence
regarding the defendant's fitness to proceed may be introduced by
either party.
(2) If the court determines that the defendant lacks fitness to
proceed, the proceeding against the defendant shall be suspended,
except as provided in subsection (12) of this section, and the
court shall commit the defendant to the custody of the
superintendent of a state { - mental - } hospital designated
by the Oregon Health Authority if the defendant is at least 18
years of age, or to the custody of the director of a secure
intensive community inpatient facility designated by the
authority if the defendant is under 18 years of age, or shall
release the defendant on supervision for as long as such
unfitness shall endure. The court may release the defendant on
supervision if it determines that care other than commitment for
incapacity to stand trial would better serve the defendant and
the community. It may place conditions which it deems appropriate
on the release, including the requirement that the defendant
regularly report to the authority or a community mental health
program for examination to determine if the defendant has
regained capacity to stand trial. When the court, on its own
motion or upon the application of the superintendent of the
hospital or director of the secure intensive community inpatient
facility in which the defendant is committed, a person examining
the defendant as a condition of release on supervision, or either
party, determines, after a hearing, if a hearing is requested,
that the defendant has regained fitness to proceed, the
proceeding shall be resumed. If, however, the court is of the
view that so much time has elapsed since the commitment or
release of the defendant on supervision that it would be unjust
to resume the criminal proceeding, the court on motion of either
party may dismiss the charge and may order the defendant to be
discharged or cause a proceeding to be commenced forthwith under
ORS 426.070 to 426.170 or 427.235 to 427.290.
(3) The superintendent of a state hospital or director of a
secure intensive community inpatient facility shall cause the
defendant to be evaluated within 60 days from the defendant's
delivery into the superintendent's or director's custody, for the
purpose of determining whether there is a substantial probability
that, in the foreseeable future, the defendant will have the
capacity to stand trial.
(4) In addition, the superintendent or director shall:
(a) Immediately notify the committing court if the defendant,
at any time, gains or regains the capacity to stand trial or will
never have the capacity to stand trial.
(b) Within 90 days of the defendant's delivery into the
superintendent's or director's custody, notify the committing
court that:
(A) The defendant has the present capacity to stand trial;
(B) There is no substantial probability that, in the
foreseeable future, the defendant will gain or regain the
capacity to stand trial; or
(C) There is a substantial probability that, in the foreseeable
future, the defendant will gain or regain the capacity to stand
trial. If such a probability exists, the superintendent or
director shall give the court an estimate of the time in which
the defendant, with appropriate treatment, is expected to gain or
regain capacity.
(5) If the superintendent or director determines that there is
a substantial probability that, in the foreseeable future, the
defendant will gain or regain the capacity to stand trial, unless
the court otherwise orders, the defendant shall remain in the
superintendent's or director's custody where the defendant shall
receive treatment designed for the purpose of enabling the
defendant to gain or regain capacity. In keeping with the notice
requirement under subsection (4)(b) of this section, the
superintendent or director shall, for the duration of the
defendant's period of commitment, submit a progress report to the
committing court, concerning the defendant's capacity or
incapacity, at least once every 180 days as measured from the
date of the defendant's delivery into the superintendent's or
director's custody.
(6) { + (a) + } A defendant who remains committed under
subsection (5) of this section shall be discharged within a
period of time that is reasonable for making a determination
concerning whether or not, and when, the defendant may gain or
regain capacity. However, regardless of the number of charges
with which the defendant is accused, in no event shall the
defendant be committed for longer than whichever of the
following, measured from the defendant's initial custody date, is
shorter:
{ - (a) - } { + (A) + } Three years; or
{ - (b) - } { + (B) + } A period of time equal to the
maximum sentence the court could have imposed if the defendant
had been convicted.
{ + (b) For purposes of calculating the maximum period of
commitment described in paragraph (a) of this subsection:
(A) The initial custody date is the date on which the defendant
is first committed under this section as a result of any charge
alleged in the accusatory instrument; and
(B) The defendant shall be given credit against each charge
alleged in the accusatory instrument for each day the defendant
is committed under this section, whether the days are consecutive
or are interrupted by a period of time during which the defendant
has regained fitness to proceed. + }
(7) The superintendent or director shall notify the committing
court of the defendant's impending discharge 30 days before the
date on which the superintendent or director is required to
discharge the defendant under subsection (6) of this section.
(8) When the committing court receives a notice from the
superintendent or director under either subsection (4) or (7) of
this section concerning the defendant's progress or lack thereof,
the committing court shall determine after a hearing, if a
hearing is requested, whether the defendant presently has the
capacity to stand trial.
(9) If under subsection (8) of this section the court
determines that the defendant lacks the capacity to stand trial,
the court shall further determine whether there is a substantial
probability that the defendant, in the foreseeable future, will
gain or regain the capacity to stand trial and whether the
defendant is entitled to discharge under subsection (6) of this
section. If the court determines that there is no substantial
probability that the defendant, in the foreseeable future, will
gain or regain the capacity to stand trial or that the defendant
is entitled to discharge under subsection (6) of this section,
the court shall dismiss, without prejudice, all charges against
the defendant and:
(a) Order that the defendant be discharged; or
(b) Initiate commitment proceedings under ORS 426.070 or
427.235 to 427.290.
(10) All notices required under this section shall be filed
with the clerk of the court and delivered to both the district
attorney and the counsel for the defendant.
(11) If the defendant regains fitness to proceed, the term of
any sentence received by the defendant for conviction of the
crime charged shall be reduced by the amount of time the
defendant was committed under this section to the custody of a
state { - mental - } hospital, or to the custody of a secure
intensive community inpatient facility, designated by the Oregon
Health Authority.
(12) The fact that the defendant is unfit to proceed does not
preclude any objection through counsel and without the personal
participation of the defendant on the grounds that the indictment
is insufficient, that the statute of limitations has run, that
double jeopardy principles apply or upon any other ground at the
discretion of the court which the court deems susceptible of fair
determination prior to trial.
SECTION 8. ORS 161.327 is amended to read:
161.327. (1)(a) Following the entry of a judgment pursuant to
ORS 161.319 and the dispositional determination under ORS
161.325, if the court finds that the person would have been
guilty of a felony, or of a misdemeanor during a criminal episode
in the course of which the person caused physical injury or risk
of physical injury to another, the court shall order that a
psychiatric or psychological evaluation be performed and a report
of the evaluation be provided to the court if an evaluation was
not performed or a report was not provided to the court prior to
trial. Upon receipt of the evaluation, the court shall order that
the person be placed under the jurisdiction of the Psychiatric
Security Review Board for care and treatment if the court finds
by a preponderance of the evidence that the person is affected by
mental disease or defect and presents a substantial danger to
others requiring commitment to:
(A) A state hospital designated by the Oregon Health Authority
if the person is at least 18 years of age; or
(B) A secure intensive community inpatient facility designated
by the authority if the person is under 18 years of age.
(b) The period of jurisdiction of the board is equal to the
maximum sentence provided by statute for the crime for which the
person was found guilty except for insanity.
(c) When a court orders a psychiatric or psychological
evaluation of a financially eligible person under this
subsection, the court shall order the public defense services
executive director to pay a reasonable fee for the evaluation
from funds available for the purpose.
(2) The court shall determine whether the person should be
committed to a state hospital, or to a secure intensive community
inpatient facility, designated by the authority or conditionally
released pending any hearing before the board as follows:
(a) If the court finds that the person presents a substantial
danger to others and is not a proper subject for conditional
release, the court shall order the person committed to a state
hospital designated by the authority if the person is at least 18
years of age, or to a secure intensive community inpatient
facility designated by the authority if the person is under 18
years of age, for custody, care and treatment pending hearing
before the board in accordance with ORS { - 161.341 - } { +
161.315 + } to 161.351.
(b) If the court finds that the person presents a substantial
danger to others but that the person can be adequately controlled
with supervision and treatment if conditionally released and that
necessary supervision and treatment are available, the court may
order the person conditionally released, subject to those
supervisory orders of the court as are in the best interests of
justice, the protection of society and the welfare of the person.
The court shall designate a person or state, county or local
agency to supervise the person upon release, subject to those
conditions as the court directs in the order for conditional
release. Prior to the designation, the court shall notify the
person or agency to whom conditional release is contemplated and
provide the person or agency an opportunity to be heard before
the court. After receiving an order entered under this paragraph,
the person or agency designated shall assume supervision of the
person pursuant to the direction of the Psychiatric Security
Review Board. The person or agency designated as supervisor shall
be required to report in writing no less than once per month to
the board concerning the supervised person's compliance with the
conditions of release.
(3) For purposes of this section, a person affected by a mental
disease or defect in a state of remission is considered to have a
mental disease or defect requiring supervision when the disease
may, with reasonable medical probability, occasionally become
active and, when active, render the person a danger to others.
(4) In determining whether a person should be conditionally
released, the court may order evaluations, examinations and
compliance as provided in ORS 161.336 (4) and 161.346 (2).
(5) In determining whether a person should be committed to a
state hospital or to a secure intensive community inpatient
facility or conditionally released, the court shall have as its
primary concern the protection of society.
(6) Upon placing a person on conditional release, the court
shall notify the board in writing of the court's conditional
release order, the supervisor appointed, and all other conditions
of release, and the person shall be on conditional release
pending hearing before the board in accordance with ORS 161.336
to 161.351. Upon compliance with this subsection and subsections
(1) and (2) of this section, the court's jurisdiction over the
person is terminated and the board assumes jurisdiction over the
person.
(7) An order of the court under this section is a final order
appealable by the person found guilty except for insanity in
accordance with ORS 19.205 (5). Notwithstanding ORS 19.255,
notice of an appeal under this section shall be served and filed
within 90 days after the order appealed from is entered in the
register. The person shall be entitled on appeal to suitable
counsel possessing skills and experience commensurate with the
nature and complexity of the case. If the person is financially
eligible, suitable counsel shall be appointed in the manner
provided in ORS 138.500 (1), and the compensation for counsel and
costs and expenses of the person necessary to the appeal shall be
determined and paid as provided in ORS 138.500.
(8) Upon placing a person under the jurisdiction of the board,
the court shall notify the person of the right to appeal and the
right to a hearing before the board in accordance with ORS
161.336 { - (7) - } { + (6) + } and 161.341 (4).
SECTION 9. { + Section 1 of this 2011 Act and ORS 161.327 are
added to and made a part of ORS 161.315 to 161.351. + }
SECTION 10. { + (1) The amendments to ORS 161.327, 161.332,
161.336, 161.341, 161.346 and 161.390 by sections 2 to 6 and 8 of
this 2011 Act apply to persons found guilty except for insanity
of a crime before, on or after the effective date of this 2011
Act.
(2) The amendments to ORS 161.370 by section 7 of this 2011 Act
apply to persons committed by the court under ORS 161.370 before,
on or after the effective date of this 2011 Act. + }
SECTION 11. { + This 2011 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2011 Act takes effect on
its passage. + }
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