HRS 0704-0411 ANNOTATIONS

This section rejects the concept of mandatory commitment following a qualified acquittal on the basis of a physical or mental disease, disorder, or defect which precluded defendant's responsibility.[1] The Code instead authorizes a flexible mode of disposition of defendants thus acquitted, which depends on (1) the restraint necessary to protect other members of society and the defendant from the consequences of a recurrence of the prohibited conduct, and (2) the conditions necessary to afford the defendant proper care and supervision.

The Code recognizes three types of dispositions: commitment, conditional release, and discharge. The Code utilizes the concept of conditional release, which is presently recognized in the field of civil commitment, but leaves the ultimate determination of the conditions of release with the court, rather than with the medical authority to whom the defendant is entrusted.

Since the defendant has been detained for a substantial period of time for purposes of examination prior to the determination of the defendant's lack of responsibility, the examiners, in an appropriate case, may be able to indicate, at the trial or at a separate hearing, that commitment is not called for. In such a case, mandatory commitment followed by an application for release or discharge would be abusive and wasteful. Furthermore, a disease, disorder, or defect excluding responsibility which is influenced by biological or organic factors may be susceptible to adequate treatment (by means of drugs or otherwise) on an out- patient basis without danger to other members of society or may be such that repetition of the prohibited conduct is foreclosed. In such cases commitment should not be made mandatory.

Proof of penally prohibited conduct at the time of the alleged offense cannot be used as a justification for automatic commitment following an acquittal based on lack of responsibility.[2] A determination by the court will have to be made as to whether the defendant's condition at the time of disposition requires commitment, conditional release, or discharge. While proof of the commission of prohibited conduct and an acquittal predicated on lack of responsibility at the time of the conduct are relevant to and probative of present dangerousness, they are not substitutes for such a finding. Although the evidence at trial will be primarily devoted to a determination of the defendant's physical and mental condition at the time of the alleged offense, in certain cases the examiners may be able to indicate the risks which the defendant presents. In some cases a defendant, seeking to avoid penal liability on the basis of physical or mental disease, disorder, or defect excluding responsibility, may be quite willing to stipulate to the need for commitment or conditional release following acquittal. In such cases, it should not be necessary to require that the court hold a separate hearing for the purpose of determining the defendant's present condition and the risks the defendant presents.

The Code, therefore, provides in subsection (1) that the disposition order may be made on the basis of medical evidence given either at the trial or at a separate hearing. In those instances where the court believes that the evidence at trial is not sufficiently addressed to the risk of danger which the defendant presents to allow a determination of that issue, the court may order a separate hearing. Where either the prosecution or the defense believes that the evidence at the trial (including stipulations) is not dispositive of the issue of present danger, each is free to move for a separate post-acquittal hearing on that issue.

Subsection (3) provides that the procedure to be followed with respect to a separate post-acquittal hearing shall conform to §704-404 to the extent applicable.

Subsection (4) provides that the burden of proof with respect to the issue of present danger is on the government and that proof shall be by a preponderance of the evidence. This section is consistent with the burden the government must bear under §704-415 with respect to applications for discharge, conditional release, or modification of conditions of release.

Previous Hawaii law, which provided "that upon presentment of due proof that... [the defendant] has regained his sanity at the time of acquittal, the judge may release such person without... commital [sic],"[3] fell short of the flexibility and safeguards provided in the Code. By making dangerousness the relevant criterion, the Code provides for possible commitment of a dangerous person even though the person's physical or mental condition at the time of commitment does not preclude penal responsibility. Furthermore, the Code specifically provides that the court, the prosecution, or the defendant may move for a separate post-acquittal hearing directed to the limited issue of present dangerousness. Consistent with the concept of tailoring the disposition of the irresponsible defendant to the condition of the defendant and the protection of others, the Code also recognizes conditional release (in addition to commitment and discharge) and provides for physical as well as mental conditions which preclude responsibility.

Act 54, Session Laws 1974, amended subsection (3) to permit the use of a certified clinical psychologist as a member of the examination panel.

Act 3, Session Laws 1979, amended subsection (3) by modifying the requirements for the composition of examination panels to allow the courts greater flexibility in appointing mental health professionals.

Act 281, Session Laws 1983, amended subsection (1)(a) so that defendants charged with nonviolent crimes who are acquitted pursuant to chapter 704, may be placed in the least restrictive environment which takes into account the defendant's treatment needs and the need to prevent harm to the defendant and others. Also, subsections (1) and (2) were amended to delete a person's "danger to property" as a criteria justifying commitment, based on Suzuki v. Yuen, 617 F.2d 173 (9th Cir. 1980), in which the court found that criteria unconstitutionally broad. House Conference Committee Report No. 27.

Act 314, Session Laws 1986, amended "certified clinical psychologists" to "licensed psychologists". This change was made because psychologists are licensed and not certified and the term "clinical" does not accurately describe psychologists qualified to determine penal responsibility and fitness to proceed. Act 314 also provided an exception to the licensure requirement which recognizes that under §465-3(4), psychologists employed under government certification or civil service rules are exempt from the licensure requirement. Conference Committee Report No. 51-86.

Act 145, Session Laws 1987, permitted the department of health to set minimum standards for participation and appointment of a sanity examiner. The legislature felt this change would allow additional assurances of higher quality testimony by these examiners. Senate Standing Committee Report No. 691, House Standing Committee Report No. 1217.

Act 305, Session Laws 1988, included licensed psychologists among the professionals which may provide offender examination services to the Hawaii criminal justice system. The legislature stated that the present laws, which permit only psychiatric evaluation, are inconsistent with the many and varied uses the court has found for the services of licensed psychologists. Senate Standing Committee Report No. 2153.

Act 88, Session Laws 1992, made technical amendments to the section for purposes of clarity, consistency, and style. Senate Standing Committee Report No. 2579.

Act 306, Session Laws 1997, amended subsection (3) by, inter alia, allowing mental health examinations to be conducted by one rather than three examiners in nonfelony cases; the courts are allowed to appoint either a psychiatrist or a licensed psychologist as the examiner. In felony cases, three examiners are required, including at least one psychiatrist and one psychologist. The Act also limited the time period during which a defendant, if not then confined, may be committed by the court for examination, to not more than thirty days unless the court determines it necessary upon written findings. The amendment streamlines the process for committing and releasing mentally incompetent defendants. Conference Committee Report No. 64.

Unfair Punishment of the Mentally Disabled? The Constitutionality of Treating Extremely Dangerous and Mentally Ill Insanity Acquittees in Prison Facilities. 23 UH L. Rev. 623.

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

Prosecutor's comment that defendant, whose defense was insanity, would "walk the streets" if acquitted was improper. 58 H. 623, 574 P.2d 895.

Liability for subsequent harm done by criminal defendant placed on conditional release. 61 H. 253, 602 P.2d 532.

The difference in the burden of proof required for commitment under this section and under §334-60(b)(4)(I) does not render this section violative of due process or equal protection. 63 H. 186, 623 P.2d 881.

Commitment. 80-2 HLR 800999; 81-2 HLR 810769.

§704-411 Commentary:

1. M.P.C. §4.08.

2. Bolton v. Harris, 395 F.2d 642 (1968).

3. H.R.S. §711-93.