HOUSE OF REPRESENTATIVES
THIRTIETH LEGISLATURE, 2020
STATE OF HAWAII
A BILL FOR AN ACT
relating to penal responsibility.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that the recommendations of the Hawaii Summit on Improving the Governmental Response to Community Mental Illness hosted by the State Justice Institute, National Center for State Courts, Conference of Chief Justices, and the Conference of State Court Administrators on November 6, 2019, as well as studies such as the 2016-2017 Policy Paper by the Conference of State Court Administrators' "Decriminalization of Mental Illness: Fixing a Broken System", demonstrate that jails nationwide have become the default mental health method of treatment for numerous low-level defendants whose needs could be far more effectively addressed by diversion into behavioral health treatment. Moreover, once the issue of a mental health surfaces during a judicial proceeding, the defendant more often than not actually spends far more time being incarcerated without being treated and being denied due process while awaiting mental health evaluations. With the cost of incarceration in Hawaii averaging over $150 per day and the high rate of recidivism shown by these studies because of the lack of treatment, the legislature finds that allowing the parties to opt out of judicial proceedings by entering into collaborative agreements at any stage of the process is more cost-effective with respect to time, money, and community results.
The purpose of this Act is to authorize the courts to enter into collaborative agreements with the parties where there is reason to believe that the defendant has a physical or mental disease, disorder, or defect that will or has become an issue in the criminal case.
SECTION 2. Section 704-407.5, Hawaii Revised Statutes, is amended as follows:
1. By amending subsections (1) and (2) to read:
"(1) Whenever the defendant has filed a notice of intention to rely on the defense of physical or mental disease, disorder, or defect excluding penal responsibility, or there is reason to believe that the physical or mental disease, disorder, or defect of the defendant will or has become an issue in the case, the court may order an examination as to the defendant's physical or mental disease, disorder, or defect at the time of the conduct alleged.
Whenever there is reason to believe that the physical or mental disease, disorder, or defect of the defendant will or has become an issue in the case, the court may enter into a collaborative agreement with the parties at any stage of the proceeding to divert the case into an evaluation of the defendant, treatment of the defendant (including residential or rehabilitation treatment), or any other course or procedure, including diversion into specialized courts. Such collaborative agreements may include in-court clinical evaluations.
The] For those cases not diverted by a collaborative
agreement pursuant to subsection (1), the court shall appoint three
qualified examiners [ in felony cases] for class A and class B
felonies, as well as for class C felonies involving violence or attempted
violence, and one qualified examiner in nonfelony cases and class C
felonies not involving violence or attempted violence, to examine and
report upon the physical or mental disease, disorder, or defect of the
defendant at the time of the conduct. In
[ felony cases,] cases requiring three examiners, the court shall
appoint at least one psychiatrist and at least one licensed psychologist. [ The] When applicable, the third
examiner may be a psychiatrist, licensed psychologist, or qualified physician. One of the three examiners shall be a
psychiatrist or licensed psychologist designated by the director of health from
within the department of health. In
nonfelony [ cases,] cases and class C felonies not involving violence
or attempted violence, the court may appoint as examiners either a
psychiatrist or a licensed psychologist. 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 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
2. By amending subsection (4) to read:
"(4) For defendants charged with felonies, the
examinations for fitness to proceed under section 704-404 and penal
responsibility under this section shall be conducted separately unless a
combined examination has been ordered by the court upon a request by the
defendant or upon a showing of good cause to combine the examinations. When the examinations are separate, the
examination for penal responsibility under this section shall not be ordered
more than [
thirty] fifteen days after a finding of fitness to
proceed. The report of the examination
for fitness to proceed shall be separate from the report of the examination for
penal responsibility unless a combined examination has been ordered. For defendants charged with offenses other
than felonies, a combined examination is permissible when ordered by the court."
SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 5. This Act shall take effect upon its approval.
Penal Responsibility; Mental Health Treatment; Collaborative Agreements
Authorizes the courts to enter into collaborative agreements to divert into residential, rehabilitative, and other treatment those defendants whose physical or mental disease, disorder, or defect is believed to have become or will become an issue in a judicial case.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.