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HOUSE OF REPRESENTATIVES |
H.B. NO. |
2628 |
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THIRTY-SECOND LEGISLATURE, 2024 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to rehabilitation.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
PART I
SECTION 1. The legislature finds that other jurisdictions, such as Miami-Dade County, Florida, have implemented successful post-booking jail diversion programs to divert defendants with serious mental illnesses away from the criminal justice system and into community-based treatment and support services. Treatment outcomes improve when participation in post-booking jail diversion programs is based on the defendants' agreement, and successful post-booking programs require coordination and cooperation among stakeholders.
Recently, certain Hawaii stakeholders entered into agreements establishing procedures for post-booking jail diversion programs for district and circuit court in the first judicial circuit that are based on the Miami-Dade model. These agreements were signed by representatives from the judiciary, department of health, office of the public defender, and department of the prosecuting attorney of the city and county of Honolulu. Collectively, the agreements apply to defendants charged with non-violent misdemeanors and promoting a dangerous drug in the third degree, as approved by the prosecution, and other charges the parties agree to on a case-by-case basis. The agreements establish procedures for screening and assessing defendants for serious mental illness, determining whether defendants qualify for involuntary hospitalization, entry of defendants into diversion programs for treatment, dismissal of the charge if the defendant complies with the diversion plan, and regular meetings among stakeholders.
The purpose of this part is to require the judiciary, in consultation with other stakeholders, to submit reports to the legislature to monitor and evaluate the effectiveness of the agreements establishing procedures for post-booking jail diversion programs.
SECTION 2. At least forty days prior to the convening of the regular sessions of 2025, 2026, and 2027 the judiciary, in consultation with the department of health, state public defender, and prosecuting attorney of the city and county of Honolulu, shall submit to the legislature a report on the progress and effectiveness of the agreements establishing procedures for post-booking jail diversion programs in the first circuit described in section 1 of this Act. Each report shall include:
(1) The status of the programs;
(2) The number of persons referred to the programs during the reporting period;
(3) The number of persons accepted into the programs during the reporting period;
(4) A breakdown of program participants by types of qualifying criminal charges;
(5) The number of participants whose criminal charges were dismissed upon completion of the programs;
(6) A quantification and discussion of other relevant program measures, outcomes, and procedures; and
(7) Any other findings and recommendations, including ways to improve the programs and proposed legislation.
The report shall also include the comments and recommendations of the department of health, state public defender, and prosecuting attorney of the city and county of Honolulu.
SECTION 3. Beginning September 1, 2024, the judiciary, in consultation with the department of health, state public defender, and prosecuting attorney of the city and county of Honolulu, state public defender, and department of health, shall submit to the legislature a monthly report on the progress to date of the post-booking jail diversion programs in the first circuit described in section 1 of this Act.
PART II
SECTION 4. The purpose of this part is to enable the examination of defendants through telehealth.
SECTION 5. Chapter 704, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§704- Examination of defendants via telehealth. (1)
The director of health may prescribe by rule the requirements, terms,
conditions, and circumstances under which examinations of defendants conducted
pursuant to this chapter may be administered via telehealth.
(2) With regard to examinations of defendants
conducted via telehealth and pursuant to this chapter:
(a) The director of
health, in the case of any facility under the jurisdiction of the director of
health;
(b) The director of
corrections and rehabilitation, in the case of any facility under the
jurisdiction of the director of corrections and rehabilitation; and
(c) The chief
justice, in the case of any facility under the jurisdiction of the chief
justice,
shall establish procedures regarding the
provision and use of telehealth resources at appropriate facilities. The procedures shall comply with any rules
prescribed by the director of health pursuant to subsection (1) and ensure the
widest availability of telehealth resources feasible at appropriate facilities.
(3) The director of corrections and
rehabilitation shall establish procedures allowing for the transfer of
defendants to a community mental health center for the purposes of receiving
telehealth services in cases where a facility under the jurisdiction of the
director of corrections and rehabilitation lacks appropriate telehealth
resources; provided that these procedures shall comply with any rules
prescribed by the director of health pursuant to subsection (1).
(4) For the purposes of this section, "telehealth" means health care services provided through telecommunications technology by a health care professional who is at a location other than where the defendant is located."
PART III
SECTION 6. The purpose of this part is to provide a mechanism for nonviolent petty misdemeanor defendants whose fitness to proceed in criminal proceedings remains an outstanding issue to be automatically screened for involuntary hospitalization or assisted community treatment.
SECTION 7. Section 704-404, Hawaii Revised Statutes, is amended by amending subsection (2) to read as follows:
"(2) Upon suspension of further proceedings in the prosecution:
(a) In cases where the defendant is charged
with a petty misdemeanor not involving violence or attempted violence, if a
court-based certified examiner is available, the court shall appoint the
court-based certified examiner to examine and provide an expedited report
solely upon the issue of the defendant's capacity to understand the proceedings
against the defendant and defendant's ability to assist in the defendant's own
defense. The court-based certified
examiner shall file the examiner's report with the court within two days of the
appointment of the examiner, or as soon thereafter is practicable. A hearing shall be held to determine if the
defendant is fit to proceed within two days of the filing of the report, or as
soon thereafter as is practicable[;].
This paragraph shall not apply to any case under the jurisdiction of the
family court unless the presiding judge orders otherwise;
(b) In all other nonfelony cases, and where a court-based certified examiner is not available in cases under paragraph (a), the court shall appoint one qualified examiner to examine and report upon the defendant's fitness to proceed. The court may appoint as the examiner either a psychiatrist or a licensed psychologist designated by the director of health from within the department of health; and
(c) In felony cases, the court shall appoint three qualified examiners to examine and report upon the defendant's fitness to proceed. The court shall appoint as examiners psychiatrists, licensed psychologists, or qualified physicians; provided that one of the three examiners shall be a psychiatrist or licensed psychologist designated by the director of health from within the department of health.
All examiners shall be appointed from a list of certified examiners as determined by the department of health. The court, in appropriate circumstances, may appoint an additional examiner or examiners. The examination may be conducted while the defendant is in custody or on release or, in the court's discretion, when necessary the court may order the defendant to be committed to a hospital or other suitable facility for the purpose of the examination for a period not exceeding thirty days, or a longer period as the court determines to be necessary for the purpose. The court may direct that one or more qualified physicians or psychologists retained by the defendant be permitted to witness the examination. As used in this section, the term "licensed psychologist" includes psychologists exempted from licensure by section 465-3(a)(3) and "qualified physician" means a physician qualified by the court for the specific evaluation ordered."
SECTION 8. Section 704-421, Hawaii Revised Statutes, is amended to read as follows:
"[[]§704-421[]] Proceedings
for defendants charged with petty misdemeanors not involving violence or
attempted violence; criminal justice diversion program. (1)
In cases where the defendant is charged with a petty
misdemeanor not involving violence or attempted violence, if, at the hearing
held pursuant to section 704-404(2)(a) or at a further hearing held after the
appointment of an examiner pursuant to section 704-404(2)(b), the court
determines that the defendant is fit to proceed, then the proceedings against
the defendant shall resume. In all other
cases under this section where fitness remains an outstanding issue, the
court shall continue the suspension of the proceedings and either commit
the defendant to the custody of the director of health to be placed in a
hospital or other suitable facility, including an outpatient facility,
for further examination and assessment[.] or, in cases where the
defendant was not subject to an order of commitment to the director of health
for the purpose of the fitness examination under section 704-404(2), the court
may order that the defendant remain released on conditions the court determines
necessary for placement in a group home, residence, or other facility prescribed
by the director of health for further assessment by a clinical team pursuant to
subsection (3).
(2)
[Within seven days from the commitment of the defendant to the
custody of the director of health, or as soon thereafter as is practicable, the
director of health] In cases under this section where the defendant's
fitness to proceed remains an outstanding issue at the hearing held pursuant to
section 704-404(2)(a) or a further hearing held after the appointment of an
examiner pursuant to section 704-404(2)(b), as applicable, the director of
health, within fourteen days of that hearing or as soon thereafter as is
practicable, shall report to the court on the following:
(a) The
defendant's current capacity to understand the proceedings against the defendant
and the defendant's current ability to assist in the defendant's
own defense[.];
(b) Whether, after
assessment of the defendant pursuant to subsection (3)(a) or (b), the
defendant's clinical team believes that the defendant meets the criteria for
involuntary hospitalization under section 334-60.2 or assisted community
treatment under section 334-121; and
(c) The date that
the director of health filed a petition for involuntary hospitalization or
assisted community treatment on behalf of the defendant pursuant to subsection
(3)(a) or (b), as applicable.
If, following the report, the court finds defendant
fit to proceed, the proceedings against defendant shall resume. In all other cases, the court shall dismiss
the charge with or without prejudice in the interest of justice. [The director of health may at any time
proceed under the provisions of section 334-60.2 or 334-121.]
(3) During the defendant's commitment to the
custody of the director of health or release on conditions pursuant to subsection
(1):
(a) If the defendant's clinical team determines that the
defendant meets the criteria for involuntary hospitalization set forth in
section 334-60.2, the director of health, within seven days of the clinical team's
determination, shall file with the family court a petition for involuntary
hospitalization pursuant to section 334‑60.3. If the petition is granted, the
defendant shall remain hospitalized for a period of time as provided by section
334-60.6; or
(b) If the
defendant's clinical team determines that the defendant does not meet the
criteria for involuntary hospitalization, or the court denies the petition for
involuntary hospitalization, the defendant's clinical team shall determine
whether an assisted community treatment plan is appropriate pursuant to part
VIII of chapter 334. If the clinical
team determines that an assisted community treatment plan is appropriate, the
psychiatrist or advanced practice registered nurse from the clinical team shall
prepare the certificate for assisted community treatment specified by section
334-123, including a written treatment plan for the provision of mental health
services to the defendant. The clinical
team shall identify a community mental health outpatient program that agrees to
provide mental health services to the defendant as the designated mental health
program under the assisted community treatment order. The clinical team shall provide the defendant
with a copy of the certificate. Within
ten days of provision of the certificate to the defendant by the clinical team,
the director of health shall file with the family court the assisted community
treatment petition described in section 334-123. When a petition for assisted community
treatment has been filed for a defendant, the defendant committed to the
custody of the director of health shall remain in custody until the family
court issues a decision on the petition.
(4) This section shall not apply to any case
under the jurisdiction of the family court unless the presiding judge orders
otherwise."
SECTION 9. Section 710-1021, Hawaii Revised Statutes, is amended to read as follows:
"§710-1021 Escape in the second degree. (1) A person commits the offense of escape in the second degree if the person intentionally escapes from a correctional or detention facility or from custody.
(2) Escape in the second degree is a class C felony.
(3) Notwithstanding subsection (2), if the
offense was committed by a person under the custody of the director of health
pursuant to section 704-421(1) for a petty misdemeanor not involving violence
or attempted violence, it shall be a petty misdemeanor; provided that if the
person is arrested for a new felony offense in the course of the escape or
during the pendency of the escape, this subsection shall not apply."
PART IV
SECTION 11. Section 706-625, Hawaii Revised Statutes, is amended to read as follows:
"§706-625 Revocation,
modification of probation conditions. (1) The court, on application of a probation
officer, the prosecuting attorney, the defendant, or on its own motion, after a
hearing, may revoke probation except as provided in [subsection] subsections
(6) and (7), reduce or enlarge the conditions of a sentence of probation,
pursuant to the provisions applicable to the initial setting of the conditions
and the provisions of section 706-627.
(2)
The prosecuting attorney, the defendant's probation officer, and the
defendant shall be notified by the movant in writing of the time, place, and
date of any such hearing, and of the grounds upon which action under this
section is proposed. The prosecuting
attorney, the defendant's probation officer, and the defendant may appear in
the hearing to oppose or support the application, and may submit evidence for
the court's consideration. The defendant
shall have the right to be represented by counsel. For purposes of this section the court shall
not be bound by the
(3) The court shall revoke probation if the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the order or has been convicted of a felony. The court may revoke the suspension of sentence or probation if the defendant has been convicted of another crime other than a felony.
(4) The court may modify the requirements imposed on the defendant or impose further requirements, if it finds that such action will assist the defendant in leading a law-abiding life.
(5) When the court revokes probation, it may impose on the defendant any sentence that might have been imposed originally for the crime of which the defendant was convicted.
[(6) As used in this section, "conviction"
means that a judgment has been pronounced upon the verdict.
(7)] (6) The court may require a defendant to undergo
and complete a substance abuse treatment program when the defendant has
committed a violation of the terms and conditions of probation involving
possession or use, not including to distribute or manufacture as defined in
section 712-1240, of any dangerous drug, detrimental drug, harmful drug,
intoxicating compound, marijuana, or marijuana concentrate, as defined in
section 712-1240, unlawful methamphetamine trafficking as provided in section
712-1240.6, or involving possession or use of drug paraphernalia under section
329-43.5. If the defendant fails to
complete the substance abuse treatment program or the court determines that the
defendant cannot benefit from any other suitable substance abuse treatment
program, the defendant shall be subject to revocation of probation and
incarceration. The court may require the
defendant to:
(a) Be assessed by a certified substance abuse counselor for substance abuse dependency or abuse under the applicable Diagnostic and Statistical Manual and Addiction Severity Index;
(b) Present a proposal to receive substance abuse treatment in accordance with the treatment plan prepared by a certified substance abuse counselor through a substance abuse treatment program that includes an identified source of payment for the treatment program;
(c) Contribute to the cost of the substance abuse treatment program; and
(d) Comply with any other terms and conditions of probation.
[As used in this subsection,
"substance abuse treatment program" means drug or substance abuse
treatment services provided outside a correctional facility by a public,
private, or nonprofit entity that specializes in treating persons who are
diagnosed with substance abuse or dependency and preferably employs licensed
professionals or certified substance abuse counselors.
Nothing in this subsection shall
be construed to give rise to a cause of action against the State, a state
employee, or a treatment provider.]
(7) As a condition of continued probation, the
court may require a defendant to undergo a mental health evaluation and
treatment program when the defendant has committed a violation of the terms and
conditions of probation and there is reason to believe that the violation is
associated with a mental disease, disorder, or defect of the defendant. The court may require the defendant to:
(a) Be assessed for
a mental disease, disorder, or defect by a psychiatrist or psychologist, who
shall prepare an appropriate treatment plan;
(b) Present a
proposal to receive treatment in accordance with the plan prepared pursuant to
paragraph (a) through a mental health treatment program that includes an
identified source of payment for the treatment program, as applicable;
(c) Contribute to
the cost of the treatment program, as applicable; and
(d) Comply with any
other terms and conditions of probation.
If the defendant fails to
complete the treatment program or the court determines that the defendant
cannot benefit from any other suitable treatment program, the defendant may be
subject to revocation of probation and incarceration.
(8) For the purposes of this section:
"Conviction" means that
a judgment has been pronounced upon the verdict.
"Mental health treatment
program" means treatment services addressing a mental disease, disorder,
or defect of the defendant, including residential or rehabilitation treatment
or any other course or procedure, including diversion into specialized courts.
"Substance abuse treatment
program" means drug or substance abuse treatment services provided outside
a correctional facility by a public, private, or nonprofit entity that
specializes in treating persons who are diagnosed with having substance abuse
or dependency and preferably employs licensed professionals or certified
substance abuse counselors.
(9) Nothing in subsection (6) or (7) shall be
construed to give rise to a cause of action against the State, a state
employee, or a treatment provider."
PART V
SECTION 12. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
SECTION 13. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 14. This Act shall take effect on July 1, 2024.
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INTRODUCED BY: |
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Report Title:
Post-Booking Jail Diversion Programs; Criminal Justice Diversion Program; Telehealth; Involuntary Hospitalization; Assisted Community Treatment; Probation Violators; Mental Health Treatment
Description:
Requires the Judiciary, in consultation with other stakeholders, to submit monthly and annual reports to the Legislature on the effectiveness of agreements for post-booking jail diversion programs in the first circuit. Amends the criminal justice diversion program to enable examination of defendants via telehealth. Provides a mechanism for the automatic screening of certain nonviolent defendants for involuntary hospitalization or assisted community treatment. Authorizes courts to require certain probation violators to undergo a mental health evaluation and treatment program as a condition of continued probation.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.