Bill Text: OR SB594 | 2011 | Regular Session | Introduced
Bill Title: Relating to persons found guilty except for insanity.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB594 Detail]
Download: Oregon-2011-SB594-Introduced.html
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 1693
Senate Bill 594
Sponsored by Senator ATKINSON
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 as
introduced.
Authorizes county sheriff or municipal police chief to make
community notification when person found guilty except for
insanity of homicide or felony sex offense is conditionally
released from state hospital.
Requires Psychiatric Security Review Board to notify law
enforcement officials having jurisdiction over location where
person will reside, if conditionally released, at least 60 days
prior to conditional release hearing. Allows officials to provide
board report or testimony describing public safety concerns.
A BILL FOR AN ACT
Relating to persons found guilty except for insanity; creating
new provisions; and amending ORS 161.336 and 161.346.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + When a person is conditionally released by the
Psychiatric Security Review Board under the provisions of ORS
161.336 to 161.351, the county sheriff or, if the municipal
police department has jurisdiction over the location where the
person will reside, the municipal chief of police may notify the
community in which the person will reside that the person has
been conditionally released if:
(1) The person has been found guilty except for insanity of a
felony sex crime as defined in ORS 181.594 or of criminal
homicide as defined in ORS 163.005; and
(2) Community notification is in the interests of public
safety. + }
SECTION 2. 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:
(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.
(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) - } { + (4)(a) + } 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 - } { + no later than 60 days before the hearing is
conducted + }. The notice shall include:
{ - (a) - } { + (A) + } The time, place and location of the
hearing.
{ - (b) - } { + (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) - } { + (C) + } A statement of the authority and
jurisdiction under which the hearing is to be held.
{ - (d) - } { + (D) + } A statement of all rights under
subsection (6) of this section.
{ + (b) If the hearing is held upon an application for
conditional release or modification of the conditions of release,
the board shall furnish written notice of the hearing, no later
than 60 days before the hearing is conducted, to:
(A) The district attorney and county sheriff of the county in
which the person will reside if conditionally released; and
(B) If the person will reside within the jurisdiction of a
municipal police department while conditionally released, the
municipal chief of police. + }
(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) - } { + (6)(a) + } At the hearing, the person about
whom the hearing is being held shall have the right:
{ - (a) - } { + (A) + } To appear at all proceedings held
pursuant to this section, except board deliberations.
{ - (b) - } { + (B) + } To cross-examine all witnesses
appearing to testify at the hearing.
{ - (c) - } { + (C) + } To subpoena witnesses and documents
as provided in ORS 161.395.
{ - (d) - } { + (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) - } { + (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.
{ + (b) If the hearing is held upon application for
conditional release or modification of the conditions of release,
the officials described in subsection (4)(b) of this section may
submit a report or provide testimony describing any public safety
concerns relevant to the application. + }
(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 3. ORS 161.336 is amended to read:
161.336. (1) 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, 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) 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 if the person is under 18 years of age. 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. Within 20 days
following the return of the person to the custody of the
authority, 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 continue the person on conditional release or, if it
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 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. 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) 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) When a person is conditionally released under this
section, the board shall ensure that the following information is
entered into the Law Enforcement Data System:
(a) A physical description of the person;
(b) The terms and conditions of the person's release;
(c) A list of any medications prescribed to the person;
(d) The street address where the person will reside on
conditional release; and
(e) Contact information for the person or agency, designated
under subsection (1) of this section, that is responsible for
supervising the conditionally released person. + }
{ - (8) - } { + (9) + } 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) - } { + (10) + } 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) - } { + (11) + } 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.
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