HRS 0704-0412 ANNOTATIONS

This section provides that the continued custody of a person who has been committed following a qualified acquittal shall depend on whether he can be discharged or conditionally released without danger to himself or to the person or property of others. The criterion is not whether continued hospitalization is medically indicated or whether the committed person has been restored to physical or mental health according to laws governing other forms of commitment. The criterion is dangerousness. The necessity of avoiding confusion here is paramount. In the case of the defendant acquitted on the basis of mental disease, it has been pointed out that:

Although his mental disease may have greatly improved, such person may still be dangerous because of factors in his personality and background other than mental disease. Also, such a standard [dangerousness] provides a possible means for control of the occasional defendant who may be quite dangerous but who successfully feigned mental disease to gain an acquittal.[1]

The section also provides for the procedure to be followed in making the application, whether application is made by the director of health or by the committed person. The requirement of notice to the prosecuting attorney and to the defendant (if application is made by the director) and the independent examination provided by §704-414 are designed to protect both the public and the committed person.

Previous Hawaii law provided that a person committed because of lack of criminal responsibility was to be "discharged by a circuit court or judge upon proof of termination of his insanity."[2] The Code focuses on the relevant criterion and specifically provides for procedures which adequately safeguard the interest of the public and the committed person.

Section 412(2) of the Proposed Draft of the Code provided for a "waiting period" of one year from the date of the order of commitment pursuant to §704-411 before the committed person could apply to the court for an order of discharge or conditional release. The Legislature reduced the waiting period to ninety days. The Conference Committee said: "Your Committee, after thorough consideration, finds that a one year period is too long and that the term of this period is not sufficiently related to the psychiatric facts upon which discharge or conditional release turn." Conference Committee Report No. 2 (1972).

§704-412 Commentary:

1. M.P.C., Tentative Draft No. 4, comments at 199 (1955).

2. H.R.S. §711-94.