TITLE 40.1
Behavioral Healthcare, Developmental Disabilities and Hospitals

CHAPTER 40.1-5.3
Incompetency to Stand Trial and Persons Adjudged Not Guilty by Reason of Insanity

SECTION 40.1-5.3-4


§ 40.1-5.3-4 Commitment of persons acquitted on ground of insanity.

(a) Definitions. As used in this section:

(1) "Court" means the court in which a defendant was adjudged not guilty of a criminal offense because he or she was insane at the time of its commission.

(2) "Director" means the director of the state department of mental health, retardation, and hospitals.

(3) "Mental disability" means a mental disorder in which the capacity of a person to exercise self control or judgment in the conduct of his or her affairs and social relations or to care for his or her own personal needs is significantly impaired.

(4) "Likelihood of serious harm" means:

(i) A substantial risk of physical harm to the person him or herself as manifested by behavior evidencing serious threats of or attempts at suicide or by behavior which will result in serious bodily harm; or

(ii) A substantial risk of physical harm to other persons as manifested by behavior or threats evidencing homicidal or other violent behavior.

(b) Examination of person found not guilty. If a person is adjudged not guilty of a criminal offense because he or she was insane at the time of its commission, the court shall commit him or her to the custody of the director for the purpose of observation and examination to determine whether the person is dangerous.

(c) Report of director. (1) Not later than twenty (20) days from the date of the order of commitment, the director shall prepare and file with the court a report, in writing, in which he or she shall state his or her opinion as to whether by reason of mental disability the person's unsupervised presence in the community will create a likelihood of serious harm, together with the medical and other data upon which his or her opinion is based. A copy of the report shall be given to the attorney general and to the person or his or her counsel.

(2) In the event the director is unable to complete the examination of the person in time to render his or her report within the twenty (20) day period, he or she shall report that fact, in writing, to the court with a statement of the reasons why the examination and report could not be completed within the prescribed period. A copy of the director's statement shall be given to the attorney general and to the person or his or her counsel, any of whom may respond in writing, or if the court deems it appropriate, orally, to the director's statement. The court may thereupon enter an order extending for an additional twenty (20) days the time in which the director is to file his or her report.

(d) Hearing. Upon receipt of the report and appropriate notice to the director, the attorney general and the person or his or her counsel, the court shall hold a hearing at which the report shall be introduced, other evidence bearing on the question of the mental condition of the person may be introduced by the parties, and the person may testify, confront witnesses, and present evidence.

(e) Commitment of person. If the court finds that the person is not dangerous it shall order that he or she be discharged at once. If the court finds that the person is dangerous it shall commit him or her to the custody of the director for care and treatment as an inpatient in a public institution. A person committed under this subsection shall not be paroled, furloughed, placed on outpatient status, or released from a locked facility or otherwise released from the institution where he or she is being treated except upon petition to the court by the director, on notice to the attorney general and the person or his or her counsel, and entry of an order by a judge of the court authorizing the release.

(f) Periodic review. The director shall petition the court to review the condition of a person committed pursuant to subsection (e) not later than six (6) months from the date of the order of commitment and every six (6) months thereafter, or when the director no longer believes that the unsupervised presence of the person in the community will create a likelihood of serious harm, whichever occurs first. The director shall attach to the petition a report on the condition of the person. Copies of the report shall be given to the attorney general and to the defendant or his or her counsel.

(g) Person's right to petition. A person committed pursuant to subsection (e) may at any time petition the court to review his or her condition.

(h) Hearing on petition. Upon receipt of a petition pursuant to subsection (f) or (g) and appropriate notice to the director, the attorney general and the person or his or her counsel, the court shall hold a hearing at which the parties may introduce evidence bearing on the mental condition of the person, including any reports of the director, and the person may testify, confront witnesses, and present evidence. If the court finds by clear and convincing evidence that by reason of mental disability the presence of the person in the community will create a likelihood of serious harm, it shall enter an order to that effect and he or she shall remain in the custody of the director. If the court does not so find, it shall enter an order discharging the person from the custody of the director.

(i) Transfer of nonresidents. In the case of a person who has been committed pursuant to subsection (e) and who is a resident of another state, the director, on notice to the attorney general and the person or his or her counsel, may petition the court to transfer the person to the custody of officials of the state in which the person ordinarily resides. The court may, in its discretion, order the transfer of the person if it finds that appropriate officials of the state in which the person ordinarily resides are willing to accept custody of the person and provide care and treatment for him or her on such terms and conditions as the court deems to be necessary and proper to the peace and safety of the public and to the welfare of the person.

History of Section.
(P.L. 1973, ch. 175, § 2; P.L. 1976, ch. 203, § 2; P.L. 1976, ch. 261, § 1; G.L. 1956, § 26-4-4; P.L. 1979, ch. 39, § 1.)