2001 SESSION

01-2037

04/09

HOUSE BILL 1189

COMMITTEE: Criminal Justice and Public Safety

ANALYSIS

This bill:

I. Changes the plea of "not guilty by reason of insanity" to "guilty but insane."

II. Requires that a defendant who is found guilty but insane shall, upon release from the secure psychiatric unit or upon certification that such person no longer suffers from a mental disease or insanity, be required to serve 25 percent of the time remaining in the sentence, or 25 percent of the time remaining until such person is eligible for parole, in a state prison facility.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

01-2037

04/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand One

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Commitment to Veterans Administration or Other Federal Agency; Plea of Guilty but Insane. Amend RSA 116:3 to read as follows:

116:3 Certification of Available Facilities. Upon receipt of a certificate of the veterans administration or such other agency of the United States, as provided in RSA 116:1, the superintendent of the institution may cause the transfer of such person to the veterans administration or other agency of the United States for care or treatment. Upon effecting any such transfer, the committing court or other committing authority shall be notified thereof by the transferring agency. No person shall be transferred to the veterans administration or other agency of the United States if [he be] such person is confined pursuant to conviction of any felony or misdemeanor or if he or she has been [acquitted of the charge solely on the ground of insanity] found guilty but insane, unless prior to transfer the court or other authority originally committing such person shall enter an order for such transfer after appropriate motion and hearing.

2 Commitment to Hospitals; Competence; Plea of Guilty but Insane. Amend RSA 135:17, I to read as follows:

I. When a person is charged or indicted for any offense, or is bound over by any district [or municipal] court to await the action of the grand jury, the district or superior court before which he or she is to be tried, if a plea of [insanity] guilty but insane is made in court, or said court is notified by either party that there is a question as to the competency or sanity of the person, may make such order for a pre-trial psychiatric examination of such person by a psychiatrist on the staff of any public institution or by a private psychiatrist as the circumstances of the case may require, which order may include, though without limitation, examination at the secure psychiatric unit on an out-patient basis, the utilization of local mental health clinics on an in- or out-patient basis, or the examination of such person, should he or she be incarcerated for any reason, at his or her place of detention by psychiatrists assigned to a state or local mental health facility. Such pre-trial examination shall be completed within 60 days after the date of the order for such examination, unless either party requests an extension of this period.

3 Secure Psychiatric Unit; Rulemaking. Amend RSA 622:44, II to read as follows:

II. The rules shall reflect the general policy that persons committed or transferred to the unit, who may be convicted offenders, persons found [not guilty because of insanity] guilty but insane, pre-trial detainees, or persons civilly committed, shall retain all their individual rights, except where safety or security mandates restriction.

4 Responsibility; Insanity. Amend RSA 628:2, I to read as follows:

I. A person who is insane at the time he or she acts is [not] criminally responsible for his or her conduct and shall be required to serve 25 percent of their sentence, or 25 percent of the time remaining until such person is eligible for parole, in the state prison facility. Any distinction between a statutory and common law defense of insanity is hereby abolished and invocation of such defense waives no right an accused person would otherwise have.

5 Insane Persons; Certificate of Jury; Plea of Guilty but Insane. Amend RSA 651:8 to read as follows:

651:8 Certificate of Jury. Whenever the grand jury shall omit to find an indictment against a person, for the reason of insanity or mental derangement, or a person prosecuted for an offense shall be [acquitted by the petit jury for the same reason] found guilty but insane, such jury shall certify the same to the court.

6 Insane Persons; Plea of Insanity Amended. Amend RSA 651:8-a to read as follows:

651:8-a Plea of [Insanity] Guilty but Insane. Any person prosecuted for an offense may plead that he or she is [not guilty by reason of insanity or mental derangement] guilty but insane. If such a plea is accepted by the state's counsel, such counsel shall certify the same to the court.

7 Insane Persons; Hospitalization; Plea of Guilty but Insane. Amend the RSA 651:8-b to read as follows:

651:8-b Hospitalization; Persons [Acquitted by Reason of Insanity] Found Guilty but Insane.

I. If a person is found [not] guilty [by reason of insanity] but insane at the time of the offense charged, he or she shall be committed to the secure psychiatric unit until such time as he or she is eligible for release pursuant to [paragraph IV] RSA 628:2, I.

II. A hearing shall be conducted not later than 40 days following a verdict of [not] guilty [by reason of insanity] but insane, at which the defendant shall be represented by counsel. The state and the defendant shall be offered the opportunity to present evidence and to cross-examine witnesses who appear at the hearing.

III. Prior to the date of the hearing pursuant to paragraph II, the court shall order that a psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court, with copies provided to the defendant and to the attorney for the state.

IV. If, after the hearing, the court finds by clear and convincing evidence that the [acquitted] person is presently suffering from a mental disease or defect as a result of which his or her [release would create a substantial risk of bodily injury to himself or another, or serious damage to the property of another,] incarceration would be detrimental to the defendant or to other inmates the court shall commit the person pursuant to the provisions of RSA 651:9-a and RSA 651:11-a. The existence of clear and convincing evidence that a person's [release would create a substantial risk of bodily injury to himself or another person or serious damage to the property of another] incarceration would be detrimental to the defendant or to other inmates, shall be presumed, subject to rebuttal by the acquitted person, where the person has been found [not] guilty [by reason of insanity] but insane of committing an offense involving bodily injury or serious damage to property of another, or substantial risk of such injury or damage.

8 Insane Persons; Committal. Amend RSA 651:9-a to read as follows:

651:9-a Committal. In either of the cases aforesaid the court, if it is of the opinion that it will be dangerous that such person [should go at large] be sentenced to a state prison facility, shall commit him to the secure psychiatric unit [for 5 years unless earlier discharged, released or transferred by due course of law] until the person is deemed competent to serve 25 percent of his or her sentence, or 25 percent of the time remaining in his or her sentence until eligibility for parole, in a state prison facility.

9 Insane Persons; Duration of Committal Orders. Amend RSA 651:11-a to read as follows:

651:11-a Duration of Committal Orders.

I. Orders of committal to the secure psychiatric unit made pursuant to this chapter shall be valid for 5 years. For the order to be renewed, another judicial hearing must be held. At the renewal hearing, when the court is satisfied by clear and convincing evidence that the person suffers from a mental disorder and that it would be dangerous for [him] such person to go at large, or to serve a sentence pursuant to RSA 628:2, I, the court shall renew the order of committal.

II. Without otherwise limiting the discretion of the court, a court shall find it would be dangerous for a person to go at large if:

(a) He or she has been found [not] guilty [by reason of insanity] but insane of a crime; and

(b) The physical act or acts constituting the crime of which the person was found [not] guilty [by reason of insanity] but insane caused death or serious bodily injury as defined in RSA 625:11, VI, to [him] such person or another, or created a grave risk of death or serious bodily injury to [him] such person or another; and

(c) The person suffers from the mental disorder or a substantially similar mental condition as existed at the time he or she committed the act or acts which constituted the crime of which he or she was found [not] guilty [by reason of insanity] but insane.

III. Without otherwise limiting the discretion of the court, a court may find that it would be dangerous for a person to go at large or to serve a sentence pursuant to RSA 628:2, I, if:

(a) He or she has been found [not] guilty [by reason of insanity] but insane of a crime; and

(b) The physical act or acts constituting the crime of which the person was found [not] guilty [by reason of insanity] but insane resulted in damage to the property of another, or created a grave risk of damage to the property of another, or caused harm or a risk of harm to [himself] such person or another; and

(c) The person suffers from the mental disorder or a substantially similar mental condition as existed at the time he or she committed the act or acts which constituted the crime of which he or she was found [not] guilty [by reason of insanity] but insane.

IV. The following provisions shall apply after the court renews the order of committal pursuant to paragraph I of this section:

(a) If the court renews the order of committal but finds by clear and convincing evidence that the person's release under certain conditions, including, but not limited to, a prescribed regimen of medical, psychiatric, or psychological care or treatment, would no longer create a substantial risk of bodily injury to [himself] such person or another person or serious damage to property of another, and such person has served a sentence pursuant to RSA 628:2, I, the court may:

(1) Order that he or she be conditionally discharged under conditions the court finds appropriate, including any prescribed regimen of medical, psychiatric, or psychological care or treatment that has been prepared for him or her, which has been certified to the court as appropriate by the commissioner of the department of corrections or [his] designee or by the director of another facility not within the department of corrections in which he or she is committed, and which has been found by the court to be appropriate; and

(2) Order, as an explicit condition of release, that he or she comply with the conditions imposed by the court, including any prescribed regimen of medical, psychiatric, or psychological care or treatment.

(b) The court at any time may, after a hearing employing the same criteria as a hearing pursuant to subparagraph (a), modify or eliminate the conditions imposed, including any prescribed regimen of medical, psychiatric, or psychological care or treatment.

(c) The commissioner of the department of corrections or the director of another program or facility not within the department of corrections responsible for administering a condition or regimen imposed on a person conditionally discharged under subparagraph (a) shall notify the attorney general and the court having jurisdiction over the person of any failure of the person to comply with the condition or regimen, or of any other circumstances which create a reasonable likelihood that it is dangerous for the person to remain conditionally discharged. Upon such notice, or upon other probable cause to believe that the person has failed to comply with the condition or prescribed regimen of medical, psychiatric, or psychological treatment, or that other circumstances exist which create a reasonable likelihood that it is dangerous for the person to remain conditionally discharged, the person may be arrested, and, upon arrest, shall be taken without unnecessary delay before the court having jurisdiction over [him] such person. The court shall, after a hearing, determine whether the person should be remanded to the secure psychiatric unit or to another suitable facility on the basis that in light of his or her failure to comply with the conditions imposed by the court, including any prescribed regimen of medical, psychiatric, or psychological care or treatment, or because of other circumstances, his or her continued release would create a substantial risk of bodily injury to [himself] such person or another person or serious damage to property of another.

10 Effective Date. This act shall take effect January 1, 2003.