Bill Text: NJ A1873 | 2010-2011 | Regular Session | Introduced
Bill Title: Establishes civil commitment procedure for violent predators.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2010-01-25 - Introduced, Referred to Assembly Judiciary Committee [A1873 Detail]
Download: New_Jersey-2010-A1873-Introduced.html
Sponsored by:
Assemblyman GORDON M. JOHNSON
District 37 (Bergen)
SYNOPSIS
Establishes civil commitment procedure for violent predators.
CURRENT VERSION OF TEXT
As introduced.
An Act establishing a civil procedure for the involuntary commitment of violent predators, supplementing Title 30 of the Revised Statutes and amending P.L.1994, c.134.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) This act shall be known and may be cited as the "New Jersey Violent Predator Act."
2. (New section) The Legislature finds and declares that:
a. Certain individuals who commit violent offenses suffer from mental abnormalities or personality disorders which make them likely to engage in repeat acts of predatory violence if not treated for their mental conditions.
b. Under the existing involuntary commitment procedure, persons are subject to commitment if they are mentally ill and dangerous to self, others or property. "Mental illness" is a current, substantial disturbance of thought, mood, perception or orientation which significantly impairs judgment, capacity to control behavior or capacity to recognize reality, which causes the person to be dangerous to self, others or property. The nature of the mental condition from which a violent predator may suffer may not always lend itself to characterization under the existing statutory standard, although civil commitment may nonetheless be warranted due to the danger the person may pose to others as a result of the mental condition.
c. Therefore, it is necessary to modify the involuntary civil commitment process in recognition of the need for commitment of those violent predators who pose a danger to others should they be returned to society.
d. Moreover, because of the nature of the mental conditions from which violent predators suffer and the danger they present, it is necessary to house involuntarily committed violent predators in an environment separate from persons committed under P.L.1987, c.116 (C.30:4-27.1 et seq.) or otherwise confined.
3. (New section) As used in this act:
"Agency with jurisdiction" means the agency which releases upon lawful order or authority a person who is serving a sentence or term of confinement, or is otherwise being detained or maintained in custody. This term includes the Department of Corrections or a county correctional facility, the Juvenile Justice Commission or a county juvenile detention facility, and the Department of Human Services.
"Attorney General" means the Attorney General or a county prosecutor to whom the Attorney General has delegated authority under this act.
"Clinical certificate for a violent predator" means a form prepared by the Division of Mental Health Services in the Department of Human Services and approved by the Administrative Office of the Courts, that is completed by the psychiatrist or other physician who has examined the person who is subject to commitment within three days of presenting the person for admission to a facility for treatment, and which states that the person is a violent predator in need of involuntary commitment. The form shall also state the specific facts upon which the examining physician has based that conclusion and shall be certified in accordance with the Rules Governing the Courts of the State of New Jersey. A clinical certificate for a violent predator may not be executed by an individual who is a relative by blood or marriage to the person who is being examined.
"Likely to engage in acts of violence" means the propensity of a person to commit acts of violence is of such a degree as to pose a threat to the health and safety of others.
"Mental abnormality" means a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of violence.
"Person" means an individual 18 years of age or older who is a potential or actual subject of proceedings under this act.
"Psychiatrist" means a physician who has completed the training requirements of the American Board of Psychiatry and Neurology.
"Violent offense" means:
(a) N.J.S.2C:11-3, murder; N.J.S.2C:11-4, aggravated manslaughter or manslaughter; N.J.S.2C:11-5, vehicular homicide; subsection b. of N.J.S.2C:12-1, aggravated assault; N.J.S.2C:13-1, kidnapping; N.J.S.2C:15-1, robbery; section 1 of P.L.1993, c.221 (C.2C:15-2), carjacking; or paragraph (1) of subsection a. of N.J.S.2C:17-1, aggravated arson; an attempt to commit any of these enumerated offenses; or a criminal offense with substantially the same elements as any offense enumerated above, entered or imposed under the laws of the United States, this State or another state; or
(b) any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the person's offense should be considered a violent offense.
"Violent predator" means a person who has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a violent offense, or has been charged with a violent offense but found to be incompetent to stand trial, and suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of violence if not confined in a secure facility for control, care and treatment.
"Treatment team" means the individuals, agencies or firms which provide treatment, supervision or other services at a facility designated for the custody, care and treatment of violent predators.
4. (New section) a. When it appears that a person may meet the criteria of a violent predator as defined in this act, the agency with jurisdiction shall give written notice to the Attorney General 90 days, or as soon as practicable, prior to:
(1) the anticipated release from total confinement of a person who has been convicted of or adjudicated delinquent for a violent offense;
(2) any commitment status review hearing at which the Department of Human Services intends to recommend discharge or believes that discharge may be likely, for a person who has been civilly committed pursuant to N.J.S.2C:4-8 following acquittal by reason of insanity for a violent offense; or
(3) any hearing at which the Department of Human Services intends to recommend discharge or believes that discharge may be likely, for any person civilly committed based upon a determination that the person lacked mental competence to stand trial pursuant to N.J.S.2C:4-6, if the person had been charged with a violent offense.
b. When such notice is given, the agency with jurisdiction shall provide the Attorney General with all information relevant to a determination of whether the person may be a violent predator, including, without regard to classification as confidential pursuant to regulations of the agency with jurisdiction, any preparole report, psychological and medical records, any statement of the reasons for denial of parole and a statement from the agency with jurisdiction of the reasons for its determination that the person may be a violent predator.
c. All information, documents and records concerning the person's mental condition or which are classified as confidential pursuant to statute or regulations of the agency with jurisdiction that are received or provided pursuant to this section shall be deemed confidential. Unless authorized or required by court order or except as required in the course of judicial proceedings relating to the person's commitment or release, disclosure of such information, documents and records shall be limited to a professional evaluating the person's condition pursuant to this section, the Attorney General and a member of the Attorney General's staff as necessary to the performance of duties imposed pursuant to this section and, if the person is committed, to the staff at the institution providing treatment.
d. Any individual acting in good faith who has provided information relevant to a person's need for involuntary commitment under this act or has taken steps in good faith to assess a person's need of involuntary commitment under this act is immune from civil or criminal liability.
e. The provisions of this section are not jurisdictional, and failure to comply with them in no way prevents the Attorney General from initiating a proceeding against a person otherwise subject to the provisions of this act, nor do the provisions of this act in any way foreclose a proceeding under the provisions of P.L.1987, c.116 (C.30:4-27.1 et seq.) for the involuntary commitment of any person charged with or convicted of a offense.
5. (New section) a. The Attorney General may initiate a court proceeding for involuntary commitment under this act of a person who is currently a patient in a short-term care facility, State or county psychiatric facility or special psychiatric hospital, by submitting to the court a clinical certificate for a violent predator completed by a psychiatrist at the facility at which the person is a patient and the screening certificate which authorized admission of the person to the facility; but both certificates shall not be signed by the same psychiatrist unless the psychiatrist has made a reasonable but unsuccessful attempt to have another psychiatrist conduct the evaluation and execute the certificate.
b. If civil commitment is not initiated pursuant to subsection a. of this section, the Attorney General may initiate a court proceeding for the involuntary commitment of a person by the submission to the court of two clinical certificates for a violent predator, at least one of which is prepared by a psychiatrist. The person shall not be involuntarily committed pursuant to this act before the court issues a temporary court order. When the Attorney General determines that the public safety requires initiation of a proceeding pursuant to this subsection, the Attorney General may apply to the court for an order compelling the psychiatric evaluation of the person. The court shall grant the Attorney General's application if the court finds that there is reasonable cause to believe that the person named in the petition is a violent predator.
c. The Attorney General may initiate a court proceeding for involuntary commitment under this act of an inmate who is scheduled for release upon expiration of a maximum term of incarceration by submission to the court of two clinical certificates for a violent predator, at least one of which is prepared by a psychiatrist.
d. The Attorney General, in exercise of the State's authority as parens patriae, may initiate a court proceeding for the involuntary commitment of any person in accordance with the procedures set forth in this section by filing the required submission with the court in the jurisdiction in which the person whose commitment is sought is located.
e. Any individual who is a relative by blood or marriage of the person being examined who executes a clinical certificate for a violent predator, or any individual who signs such a clinical certificate for any purpose or motive other than for purposes of care, treatment and confinement of a person in need of involuntary commitment, shall be guilty of a crime of the fourth degree.
f. Upon receiving these documents, the court shall immediately review them in order to determine whether there is probable cause to believe that the person is a violent predator.
g. If the court finds that there is probable cause to believe that the person is a violent predator in need of involuntary commitment, it shall issue an order setting a date for a final hearing and authorizing temporary commitment to a secure facility designated for the custody, care and treatment of violent predators pending the final hearing. In no event shall the person be released from confinement prior to the final hearing.
h. In the case of a person committed to a short-term care facility or special psychiatric hospital, after the facility's treatment team conducts a mental and physical examination, administers appropriate treatment and prepares a discharge assessment, the facility shall transfer the person to a secure facility designated for the custody, care and treatment of violent predators pending the final hearing upon providing the person, the person's guardian if any, the person's next-of-kin and the person's attorney 24 hours' advance notice of the pending transfer. Such transfer is to be accomplished in a manner which will give the receiving facility adequate time to examine the person, become familiar with the person's behavior and condition, and prepare for the hearing.
6. (New section) a. A person who is involuntarily committed pursuant to section 5 of this act shall receive a court hearing with respect to the issue of continuing need for involuntary commitment as a violent predator within 20 days from the date of the temporary commitment order.
b. The Attorney General is responsible for presenting the case for the person's involuntary commitment as a violent predator to the court.
c. A person subject to involuntary commitment shall have counsel present at the hearing and shall not be permitted to appear at the hearing without counsel.
7. (New section) a. At least 10 days prior to a court hearing, the Attorney General shall cause notice of the court hearing to be served upon the person, the person's guardian if any, the person's next-of-kin, the person's attorney, the agency with jurisdiction having custody of the person and any other individual specified by the court. The notice shall contain the date, time and location of the court hearing. The person and the person's attorney shall also receive copies of the clinical certificates for a violent predator and supporting documents, the temporary court order and a statement of the person's rights at the court hearing.
b. A psychiatrist on the person's treatment team who has conducted a personal examination of the person as close to the court hearing date as possible, but in no event more than five calendar days prior to the court hearing, shall testify at the hearing to the clinical basis for the need for involuntary commitment as a violent predator. Other members of the person's treatment team and any other witness with relevant information offered by the person or the Attorney General shall also be permitted to testify at the hearing.
c. The person's next-of-kin may attend and, if the court so determines, may testify at the court hearing.
d. The court shall transcribe the court hearing and arrange for the payment of expenses related thereto in the same manner as for other court proceedings.
8. (New section) A person subject to involuntary commitment as a violent predator has the following rights at a court hearing pursuant to section 7 and any subsequent review court hearing:
a. The right to be represented by counsel or, if indigent, by appointed counsel;
b. The right to be present at the court hearing unless the court determines that because of the person's conduct at the court hearing the proceeding cannot reasonably continue while the person is present;
c. The right to present evidence;
d. The right to cross-examine witnesses; and
e. The right to a hearing in camera.
9. (New section) a. If the court finds by clear and convincing evidence that the person needs continued involuntary commitment as a violent predator, it shall issue an order authorizing the involuntary commitment of the person to a facility designated for the custody, care and treatment of violent predators. The court shall also schedule a subsequent court hearing pursuant to section 12 of this act.
b. If the court finds that the person is not a violent predator, the court shall so order. A person who is serving a term of incarceration shall be returned to the appropriate State, county or local authority to complete service of the term of incarceration imposed until released in accordance with law, and any other person shall be discharged by the facility within 48 hours of the court's verbal order or by the end of the next working day, whichever is longer, with a discharge plan prepared pursuant to section 14 of this act.
c. (1) If the Department of Human Services recommends conditional discharge of the person and the court finds that the person will not be likely to engage in acts of violence because the person is amenable to and highly likely to comply with a plan to facilitate the person's adjustment and reintegration into the community so as to render involuntary commitment as a violent predator unnecessary for that person, the court may order that the person be conditionally discharged in accordance with such plan.
(2) Conditions imposed pursuant to this subsection shall include those recommended by the person's treatment team and developed with the participation of the person and shall be approved by the Department of Human Services. Conditions imposed on the person shall be specific and shall be for the purpose of ensuring that the person participates in necessary treatment and that the person does not represent a risk to public safety. If the court imposes conditions for a period exceeding six months, the court shall provide for a review hearing on a date the court deems appropriate but in no event later than six months from the date of the order. The review hearing shall be conducted in the manner provided in this section, and the court may impose any order authorized pursuant to this section.
(3) A designated staff member on the person's treatment team shall notify the court if the person fails to meet the conditions of the discharge plan, and the court shall issue an order directing that the person be taken to a facility designated for the custody, care and treatment of violent predators for an assessment. The court shall determine, in conjunction with the findings of the assessment, if the person needs to be returned to custody and, if so, the person shall be returned to the designated facility for the custody, care and treatment of violent predators. The court shall hold a hearing within 20 days of the day the person was returned to custody to determine if the order of conditional discharge should be vacated.
d. Notwithstanding the provisions of this section, or any provision of section 12, 13 or 14 of this act to the contrary, no person committed while serving a term of incarceration shall be discharged by the court prior to the date on which the person's maximum term would have expired had he not been committed. If the court determines that the person's mental condition has so changed that the person is safe to be at large, the court shall order that the person be returned to the appropriate State, county or local authority to complete service of the term of incarceration imposed until released in accordance with law, and the person shall be given day for day credit for all time during which the person was committed.
e. Notwithstanding the provisions of this section, or any provision of section 12, 13 or 14 of this act to the contrary, no person committed pursuant to N.J.S.2C:4-8 concerning acquittal of a criminal charge by reason of insanity or pursuant to N.J.S.2C:4-6 concerning lack of mental competence to stand trial shall be discharged by the court unless the prosecuting attorney in the case receives prior notice and an opportunity to be heard.
10. (New section) If a person who has been civilly committed based upon a determination that the person lacked mental competence to stand trial pursuant to N.J.S.2C:4-6 is about to be released, and the person's involuntary commitment is sought pursuant to this act, the court shall first hear evidence and determine whether the person did commit the act charged.
a. The rules of evidence applicable in criminal cases shall apply, and all constitutional rights available to a defendant at a criminal trial, other than the right to a trial by jury and the right not to be tried while incompetent, shall apply.
b. After hearing evidence on this issue, the court shall make specific findings on whether the person did commit the act charged, the extent to which the person's lack of mental competence affected the outcome of the hearing, including its effect on the person's ability to consult with and assist counsel and to testify on the person's own behalf, the extent to which the evidence could be reconstructed without the assistance of the person and the strength of the prosecution's case.
c. If, after the conclusion of the hearing on this issue, the court finds beyond a reasonable doubt that the person did commit the act charged, the court shall enter a final order, appealable by the person, on that issue and may proceed to consider whether the person should be committed pursuant to this act.
11. (New section) a. The Department of Corrections shall be responsible for the operation of any facility designated for the custody, care and treatment of violent predators, and shall provide or arrange for custodial care of persons committed pursuant to this act. Except as may be provided pursuant to subsection c. of section 9 of this act, a person committed pursuant to this act shall be kept in a secure facility and shall be housed and managed separately from offenders in the custody of the Department of Corrections and, except for occasional instances of supervised incidental contact, shall be segregated from such offenders.
b. The Division of Mental Health Services in the Department of Human Services shall provide or arrange for treatment for a person committed pursuant to this act. Such treatment shall be appropriately tailored to address the specific needs of violent predators.
c. Appropriate representatives of the Department of Corrections and the Department of Human Services shall participate in an interagency oversight board to facilitate the coordination of the policies and procedures of the facility.
12. (New section) A person committed under this act shall be afforded an annual court review hearing of the need for involuntary commitment as a violent predator. The review hearing shall be conducted in the manner provided in section 7 of this act. If the court determines at a review hearing that involuntary commitment as a violent predator shall be continued, it shall execute a new order. The court shall conduct the first review hearing 12 months from the date of the first hearing, and subsequent review hearings annually thereafter. The court may schedule additional review hearings but, except in extraordinary circumstances, not more often than once every 30 days.
13. (New section) a. At any time during the involuntary commitment of a person under this act, if the person's treatment team determines that the person's mental condition has so changed that the person is not likely to engage in acts of violence if released, the treatment team shall recommend that the Department of Human Services authorize the person to petition the court for discharge from involuntary commitment status. The Department of Human Services shall notify the Attorney General immediately upon providing such authorization. If a discharge plan has not been developed pursuant to section 14 of this act, it shall be developed forthwith.
b. The person shall serve the authorized petition for discharge upon the committing court and the Attorney General. The Attorney General may obtain an independent clinical evaluation of the person, which shall be performed within 15 days of receipt by the Attorney General of the authorized petition for discharge. If, within 15 days of receipt of such authorized petition or upon completion of an independent clinical evaluation, if any, the Attorney General files a request for a hearing on the issue of continuing need for commitment and serves notice of that request, in accordance with the provisions of section 7 of this act, the court shall schedule a hearing on the issue. The hearing shall be conducted in the manner provided in section 9 of this act.
c. If the person committed pursuant to this act had at the time of such commitment been confined pursuant to an order entered under N.J.S.2C:4-8 concerning acquittal of a criminal charge by reason of insanity or under N.J.S.2C:4-6 concerning lack of mental competence to stand trial, the Attorney General shall provide written notice to the prosecutor of the person's authorized petition for discharge from involuntary commitment status. If, within five days of receipt of such notice, the prosecutor files a request for a hearing on the issue of continuing need for commitment and serves notice of that request, in accordance with the provisions of section 7 of this act, the court shall schedule a hearing on the issue. The hearing shall be conducted in the manner provided in section 9 of this act.
d. Nothing in this act shall prohibit a person from filing a petition for discharge from involuntary commitment status without authorization from the Department of Human Services. Upon receipt of such a petition, the court shall review the petition to determine:
(1) whether the petition contains facts upon which the court could find that the condition of the person has so changed from the time of the filing of the person's prior petition that a hearing is warranted, or
(2) whether the petition is supported by a professional expert evaluation or report stating that the person's mental condition has so changed that the person is not likely to engage in acts of violence if released, which evidence had not been provided to the court in its prior annual review.
If the petition fails to satisfy either of these requirements, the court shall deny the petition without a hearing.
14. (New section) A person discharged by the court shall have a discharge plan prepared by the treatment team at the facility designated for the custody, care and treatment of violent predators, pursuant to this section. The treatment team shall give the person an opportunity to participate in the formulation of the discharge plan.
15. (New section) In addition to any other information required to be released under this act, prior to the release of a person committed under this act, the Department of Corrections shall give written notice of the person's release to the Attorney General or the prosecutor of the county in which the person was prosecuted for the violent offense which rendered the person subject to commitment under this act, depending on which office prosecuted the person for the violent offense. Upon receipt of such notice, the county prosecutor or Attorney General, as the case may be, shall notify the Office of Victim and Witness Advocacy of the county in which the person was prosecuted and that office shall use any reasonable means available to it to give notice of the person's release to the victim of the violent offense or the victim's nearest relative if the violent offense resulted in death, which notice shall be in accordance with the provisions of section 6 of P.L.1985, c.404 (C.52:4B-44). The notice required under this section shall be given only if a request for such notification has been made by the victim or the victim's nearest relative, as the case may be, to the county prosecutor or Attorney General, as the case may be, at the time the person was sentenced or committed. Failure to notify shall not be a reason for postponement of release. Nothing in this subsection shall create a cause of action against the State, county or any employee of the State or county acting within the scope of the employee's employment as a result of the failure to notify under this act.
16. Section 4 of P.L.1994, c.134 (C.30:4-82.4) is amended to read as follows:
4. a. In order to ensure that adult and juvenile inmates who are dangerous to themselves or others because of mental illness and who are "in need of involuntary commitment" within the meaning of section 2 of P.L.1987, c.116 (C.30:4-27.2) [or]; who are "sexually violent predators" within the meaning of section 3 of P.L.1998, c.71 (C.30:4-27.26), or who are "violent predators" within the meaning of section 3 of P.L. , c. (C. )(pending before the Legislature as this amendatory and supplementary bill) are not released without appropriate supervision and treatment, the board, the Commissioner of the Department of Corrections, the Attorney General, the Juvenile Justice Commission established pursuant to section 2 of P.L.1995, c.284 (C.52:17B-170) and county prosecutors shall follow the procedures set forth in this section.
b. When an adult or juvenile inmate is scheduled for release due to expiration of the inmate's maximum term, the commissioner or the Juvenile Justice Commission shall notify the Attorney General and the prosecutor of the county from which the person was committed if:
(1) The adult inmate's term includes a sentence imposed for conviction of aggravated sexual assault, sexual assault or aggravated criminal sexual contact and the court imposing sentence found that the offender's conduct was characterized by a pattern of repetitive, compulsive behavior;
(2) The parole board or the superintendent of the facility in which the inmate has been confined has advised the commissioner or the Juvenile Justice Commission that the conduct of the inmate during the period of confinement, the inmate's mental condition or the inmate's past history indicates that the inmate may be "in need of involuntary commitment" within the meaning of section 2 of P.L.1987, c.116 (C.30:4-27.2); [or]
(3) The inmate's term includes a sentence imposed for conviction of a "sexually violent offense" as defined in section 3 of P.L.1998, c.71 (C.30:4-27.26); or
(4) The inmate's term includes a sentence imposed for conviction of a "violent offense" as defined in section 3 of P.L. , c. (C. )(pending before the Legislature as this amendatory and supplementary bill).
c. Notice required by subsection b. shall be given no less than 90 days before the date on which the inmate's maximum term is scheduled to expire.
d. When such notice is given, the board, the Juvenile Justice Commission or the commissioner shall provide the Attorney General and county prosecutor with all information relevant to a determination of whether the inmate may be "in need of involuntary commitment," [or] may be a "sexually violent predator"[,] or may be a "violent predator," including, without regard to classification as confidential pursuant to regulations of the board, of the Department of Corrections or the Juvenile Justice Commission, any preparole report, psychological and medical records, any statement of the reasons for denial of parole and, if applicable, a statement of the reasons for the determination that the inmate may be "in need of involuntary commitment," [or may be] a "sexually violent predator[.]" or a "violent predator."
e. If the Attorney General or county prosecutor determines, on the basis of the information provided pursuant to this section or N.J.S.2C:47-5, that the inmate may be "in need of involuntary commitment," [or may be] a "sexually violent predator"[,] or a "violent predator," the Commissioner of Corrections or the Juvenile Justice Commission, upon request of the Attorney General or county prosecutor shall:
(1) Permit persons qualified to execute clinical certificates necessary for civil commitment to examine the inmate in the institution in which he is confined; or
(2) Pursuant to section 2 of P.L.1986, c.71 (C.30:4-82.2), arrange for persons qualified to execute clinical certificates necessary for civil commitment to examine the inmate.
f. In the interests of the public safety and the well-being of the inmate, the Attorney General or county prosecutor may exercise discretion to obtain an assessment of the inmate's condition by one or more of the means set forth in subsection e. of this section.
g. The Attorney General or county prosecutor shall provide a psychiatrist or physician assessing or examining an inmate pursuant to this section with all information relevant to the inmate's need of involuntary commitment, including information concerning the inmate's condition, history, recent behavior and any recent act or threat. Any person who assesses or examines an inmate pursuant to this section shall provide the Attorney General and county prosecutor with a written report detailing the person's findings and conclusions.
h. (1) All information, documents and records concerning the inmate's mental condition or classified as confidential pursuant to regulations of the board, of the Department of Corrections or the Juvenile Justice Commission that are received or provided pursuant to this section or N.J.S.2C:47-5 shall be deemed confidential.
(2) Unless authorized or required by court order or except as required in the course of judicial proceedings relating to the inmate's commitment or release, disclosure of such information, documents and records shall be limited to professionals evaluating the inmate's condition pursuant to this section, the Attorney General, county prosecutor and members of their respective staffs as necessary to the performance of duties imposed pursuant to this section.
i. Any person acting in good faith who has provided information relevant to an inmate's need of involuntary commitment or as to whether the inmate is a sexually violent predator or a violent predator or has taken good faith steps to assess an inmate's need of involuntary
commitment or whether the inmate is a sexually violent predator or a violent predator is immune from civil and criminal liability.
(cf: P.L.1998, c.71, s.17)
17. This act shall take effect one year after enactment but, prior to the effective date, the Commissioners of the Departments of Corrections and Human Services may take such anticipatory administrative action and the Attorney General may issue guidelines necessary for the implementation of this act.
STATEMENT
This bill, the "New Jersey Violent Predator Act," establishes a civil procedure for the involuntary commitment of violent predators.
Under existing law, persons are subject to involuntary commitment if they suffer from a "mental illness" as defined in section 2 of P.L.1987, c.116 (C.30:4-27.2). However, a violent predator may not always be characterized as mentally ill. Therefore, this bill establishes an involuntary civil commitment procedure for a violent predator, whom the bill defines as a person who: (1) has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a violent offense, or has been charged with a violent offense but found to be incompetent to stand trial; and (2) suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of violence if not confined in a secure facility for control, care and treatment.
The Department of Corrections will be responsible for the operation of any facility designated for the custody, care and treatment of violent predators, and will provide or arrange for custodial care. The Division of Mental Health Services in the Department of Human Services will provide or arrange for treatment tailored to address the specific needs of violent predators.
The bill provides a 90-day time frame within which the Attorney General must be notified of the release or discharge, as appropriate, of a person who was convicted of a violent offense, found to lack mental competence to stand trial pursuant to N.J.S.2C:4-6 or acquitted by reason of insanity of a violent offense.
The bill defines "violent offense" as:
(1) N.J.S.2C:11-3, murder; N.J.S.2C:11-4, aggravated manslaughter or manslaughter; N.J.S.2C:11-5, vehicular homicide; subsection b. of N.J.S.2C:12-1, aggravated assault; N.J.S.2C:13-1, kidnapping; N.J.S.2C:15-1, robbery; section 1 of P.L.1993, c.221 (C.2C:15-2), carjacking; or paragraph (1) of subsection a. of N.J.S.2C:17-1, aggravated arson; or an attempt to commit any of these enumerated offenses;
(2) a criminal offense with substantially the same elements as any offense enumerated in paragraph (1) entered or imposed under the laws of the United States, this State or another state; or
(3) any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the person's offense should be considered a violent offense.
Similar to the provisions of the current civil commitment law applicable to persons suffering from mental illness, section 10 of P.L.1987, c.116 (C.30:4-27.10), the Attorney General may initiate a court proceeding for involuntary commitment under this bill by submitting to the court a clinical certificate for a violent predator, completed by a psychiatrist on the person's treatment team, and the screening certificate which authorized admission of the person to the facility; or two clinical certificates, at least one of which is prepared by a psychiatrist. Also, the Attorney General may apply to the court for an order compelling psychiatric evaluation. In addition, the Attorney General may initiate proceedings for a person scheduled for release upon expiration of a maximum term of incarceration, and in the exercise of the State's authority as parens patriae, may initiate proceedings for any person, by filing required submissions with the court.
Upon receipt of these documents, the court shall immediately review them to determine whether there is probable cause to believe that the person is a violent predator in need of involuntary commitment. If so, the court shall issue an order for a final hearing and temporarily authorize commitment to a secure facility designated for the custody, care and treatment of violent predators.
Similar to the current civil commitment law applicable to persons suffering from mental illness, section 12 of P.L.1987, c.116 (C.30:4-27.12), the person shall receive a court hearing within 20 days from the date of the temporary commitment order. At this hearing, the Attorney General is responsible for presenting the case for commitment, and the person must have counsel present.
At least 10 days prior to the final hearing, the Attorney General must cause notice of the hearing to be served upon the person, the person's guardian if any, the person's next-of-kin, the person's attorney, the agency with jurisdiction having custody of the person and any other individual specified by the court. The person's psychiatrist on the treatment team, who has examined the person no more than five calendar days prior to the court hearing, must testify to the clinical basis for the need for involuntary commitment as a violent predator. Other treatment team members, relevant witnesses or next-of-kin are also permitted to testify and the court must transcribe the hearing and arrange for the payment of these expenses. At this hearing, and any subsequent review court hearing, the person has the following rights:
The right to be represented by counsel or, if indigent, by appointed counsel;
· The right to be present at the court hearing unless the court determines that because of the person's conduct at the court hearing the proceeding cannot reasonably continue while the person is present;
· The right to present evidence;
· The right to cross-examine witnesses; and
· The right to a hearing in camera.
The bill provides that if the court finds by clear and convincing evidence that the person is in need of involuntary commitment, it shall issue an order authorizing the involuntary commitment of the person to a facility designated for custody, care and treatment of violent predators. Also, the court may order that the person be conditionally discharged in accordance with a plan to facilitate the person's adjustment and reintegration into the community, if the court finds that the person will not be likely to engage in acts of violence because the person is amenable to and highly likely to comply with the plan.
The bill permits the court to hold a hearing on whether a person who was found to lack mental competence to stand trial pursuant to N.J.S.2C:4-6 did commit the act charged. The rules of evidence used in a criminal case apply, and if the court finds beyond a reasonable doubt that the person did commit the act charged, the court may proceed to consider commitment of the person under this bill.
Additionally, the bill provides for annual court review hearings of the need for involuntary commitment as a violent predator. The first hearing shall be conducted 12 months from the date of the first hearing, and subsequent hearings annually thereafter. In addition, at any time during involuntary commitment, if the person's treatment team determines that the person's mental condition has so changed that the person is not likely to engage in acts of violence if released, the treatment team shall recommend that the Department of Human Services authorize the person to petition the court for discharge. Also, a person may petition the court for discharge without authorization from the department. In this case, the court shall review the petition to determine whether it is based on facts upon which a court could find that the person's condition had changed, or whether the petition is supported by a professional expert evaluation or report. If the petition fails to satisfy either of these requirements, the court shall deny the petition without a hearing.
Lastly, the bill provides for discharge plans to be prepared by the treatment team and with the participation of the person, and for victim notification of a violent predator's release to be conducted by the Department of Corrections, in conjunction with the Attorney General or county prosecutor and the county Office of Victim and Witness Advocacy.
This bill is modeled on the "New Jersey Sexually Violent Predator Act," P.L.1998, c.71.
