HRS 0704-0406 ANNOTATIONS

Subsection (1) provides that following a determination of the defendant's unfitness to be proceeded against, the defendant shall be committed to the custody of the director of health or placed on conditional release for the duration of the defendant's unfitness.

The commitment or conditional release of the unfit defendant does not terminate until a determination by the court, after a hearing if one is requested, that the defendant is fit to be proceeded against. Upon such a determination, the penal proceedings resume unless the court finds that such resumption would be unjust. This section is designed to allow no hiatus in the procedure.

The Code, in its treatment of a defendant committed because of unfitness to proceed, conforms to the present Hawaii law which insures that a defendant so committed will remain in the custody of the director of health until the defendant has regained fitness.[1] Previous Hawaii law had no provision for conditional release of unfit defendants.

The second sentence of subsection (2) follows the suggestion of the Model Penal Code[2] and permits "the court to dismiss the prosecution if because of lapse of time it would be unjust to continue."[3] Under the prior law the power to dismiss the prosecution was vested in the prosecutor's discretion to enter a nolle prosequi. The Code accepts the position that

there is value... in vesting such a power in the Court, to be exercised either where because of the lapse of time a defendant is unable to produce certain witnesses or other evidence once available which is essential to his defense, or where because of the length of the intervening period which he has spent in a mental institution subsequent to the alleged wrongful conduct it seems unjust to subject him to trial and punishment.[4]

Act 314, Session Laws 1986, added subsection (3), which implements the holding in State v. Raitz, 63 Haw. 64 (1980). In Raitz, the court held that when a defendant is unlikely to become fit to proceed, due process requires that: (1) following commitment, there should be a timely determination of the likelihood of the defendant regaining fitness; and (2) if the court determines that the defendant will probably remain unfit, the defendant should be released or civilly committed. Conference Committee Report No. 51-86.

Act 87, Session Laws 1993, amended this section to require the court to appoint a panel of three qualified examiners to report on whether a defendant who has been conditionally released presents a substantial likelihood of becoming fit to proceed in the future. If the court determines that the defendant probably will remain unfit to proceed, it may dismiss the charge against the defendant or subject the defendant to involuntary civil commitment procedures. In addition, this act allows the court, following the commitment of a defendant, to appoint a panel of three qualified examiners to report on the defendant's likelihood of becoming fit to proceed in the future. House Standing Committee Report No. 185, Senate Standing Committee Report Nos. 1061 and 1263.

Act 306, Session Laws 1997, amended subsections (3) and (4) to allow mental health examinations to be conducted by one rather than three examiners in nonfelony cases, and to require three examiners in felony cases. The amendment streamlines the process for committing and releasing mentally incompetent defendants. Conference Committee Report No. 64.

Comments and Questions About Mental Health Law in Hawaii. 13 HBJ No. 4 Winter 1978, pg. 14.

Risky Business: Assessing Dangerousness in Hawai`i. 24 UH L. Rev. 63.

Where defendant is unfit to proceed, a motion for judgment of acquittal by reason of mental irresponsibility under §704-408 will be deferred. 61 H. 313, 602 P.2d 944.

The phrase authorizing commitment "for so long as...unfitness shall endure" is qualified by subsection (2); statute not constitutionally infirm. 63 H. 64, 621 P.2d 352.

Does not apply to postacquittal proceedings. 71 H. 198, 787 P.2d 221.

A court order authorizing the involuntary administration of antipsychotic drugs is included within the authority vested by this section. 91 H. 319, 984 P.2d 78.

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1. H.R.S. §334-76.

2. M.P.C. §4.06.

3. M.P.C. Tentative Draft No. 4, comments at 197 (1955).

4. Id. at 197-98.