Bill H.1460

HOUSE DOCKET, NO. 3291 FILED ON: 1/20/2023

HOUSE . . . . . . . . . . . . . . . No. 1460

By Representative Decker of Cambridge, a petition (accompanied by bill, House, No. 1460) of Marjorie C. Decker relative to reforming the competency to stand trial process. The Judiciary.

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Third General Court
(2023-2024)

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An Act relative to reforming the competency to stand trial process.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Chapter 123 of the General Laws is hereby amended by striking out section 15 and inserting in place thereof the following section:-

Section 15: Competence to stand trial or criminal responsibility; examination; period of observation; reports; hearing; commitment; delinquents

(a) Whenever a court of competent jurisdiction doubts whether a defendant in a criminal case is competent to stand trial or is criminally responsible by reason of mental illness or mental defect, it may at any stage of the proceedings after the return of an indictment or the issuance of a criminal complaint against the defendant, order an examination of such defendant to be conducted by 1 or more qualified physicians or 1 or more qualified psychologists. Whenever practicable, examinations shall be conducted at the court house or place of detention where the person is being held. When an examination is ordered, the court shall instruct the examining physician or psychologist in the law for determining mental competence to stand trial and criminal responsibility.

(b) After the examination described in paragraph (a), if the court has reason to believe that observation and further examination are necessary in order to determine whether mental illness or mental defect have so affected a person that the person is not competent to stand trial or not criminally responsibility for the crime or crimes with which the person has been charged, the court may order that the person submit to observation and further examination to make such a determination. The court may order the person to undergo observation and further examination at a community-based program contracted for by the department pursuant to subparagraph (g) of this section to conduct such observation and examination, or in a facility or, if such person is a male and appears to require strict security, at the Bridgewater state hospital. Any observation and further examination must be completed within 20 days of the court’s order. Copies of the complaints or indictments and the physician's or psychologist's report under paragraph (a) shall be delivered to the community-based program contracted for by the department pursuant to subparagraph (g) of this section, or the facility conducting the observation and examination or to Bridgewater state hospital if the person is found by the court to require strict security. If an examining qualified physician or an examining qualified psychologist completes the observation and examination before the expiration of such 20-day period, the examining qualified physician or examining qualified psychologist shall forthwith notify the court as provided in subparagraph (c) and the court shall arrange for the person’s return to court at the earliest possible occasion. If, before the expiration of such 20-day period, an examining qualified physician or an examining qualified psychologist believes that observation and examination for more than 20 days is necessary, that physician or psychologist shall so notify the court and shall request in writing an extension of the 20-day period, specifying the reason or reasons for which such further observation and examination is necessary. Upon the receipt of such request, the court may extend said observation and examination period, but in no event shall the period exceed 40 days from the date of the initial court order for observation and examination; provided, however, a person confined to a facility or the Bridgewater state hospital may request continued care and treatment during the pendency of the criminal proceedings against such person and if the superintendent or medical director agrees to provide such care and treatment, the court may order the further hospitalization of such person at the facility or the Bridgewater state hospital.

(c) At the conclusion of the examination or the observation, the examining physician or psychologist shall forthwith give to the court written signed reports of their findings, including the clinical findings bearing on the issue of competence to stand trial or criminal responsibility. Such reports shall also contain an opinion, supported by clinical findings, as to whether the defendant is in need of treatment and care offered by the department.

(d) If on the basis of such reports the court is satisfied that the defendant is competent to stand trial, the case shall continue according to the usual course of criminal proceedings; otherwise the court shall hold a hearing on whether the defendant is competent to stand trial; provided that at any time before trial any party to the case may request a hearing on whether the defendant is competent to stand trial. A finding of incompetency shall require a preponderance of the evidence. If the defendant is found incompetent to stand trial, trial of the case shall be stayed until such time as the defendant becomes competent to stand trial, unless the case is dismissed.

(e) After a finding of guilty on a criminal charge, and prior to sentencing, the court may order a psychiatric or other clinical examination and, after such examination, it may also order a period of observation to be carried out at a community-based program contracted for by the department pursuant to subparagraph (g) of this section if the individual is released from custody, or in a facility, or at the Bridgewater state hospital if the court determines that strict security is required and if such person is male. The purpose of such observation or examination shall be to aid the court in sentencing. Such period of observation or examination shall not exceed 40 days. During such period of observation, the superintendent or medical director of a facility in which the person is confined may petition the court for commitment of such person. If the observation and examination pursuant to this section has been conducted at a community-based program contracted for by the department pursuant to subparagraph (g) of this section, and the examining qualified physician or an examining qualified psychologist believes that failure to hospitalize such a person would create a likelihood of serious harm by reason of mental illness, the examining qualified physician or an examining qualified psychologist may apply for the person’s commitment to a facility under the provisions of section 12 of this chapter and shall notify the court. The court, after imposing sentence on said person, may hear the petition as provided in section 18, and if the court makes necessary findings as set forth in section 8, it may in its discretion commit the person to a facility or the Bridgewater state hospital. Such order of commitment shall be valid for a period of 6 months. All subsequent proceedings for commitment shall take place under the provisions of said section 18 in the district court which has jurisdiction of the facility or hospital. A person committed to a facility or Bridgewater state hospital pursuant to this section shall have said time credited against the sentence imposed as provided in paragraph (c) of said section 18.

(f) In like manner to the proceedings under paragraphs (a), (b), (c), and (e) of this section, a court may order a psychiatric or psychological examination or a period of observation for an alleged delinquent in the community or in a facility to aid the court in its disposition. Such period shall not exceed 40 days.

(g) The department shall coordinate the establishment of, contract for, fund, and provide oversight to a system of geographically dispersed community-based programs to conduct determinations of competency to stand trial and criminal responsibility. These programs shall be available 7 days per week to conduct such determinations and shall accept all referrals from the court which is located in their area of geographic responsibility. These programs shall offer observation and examination regarding competency to stand trial and criminal responsibility and may offer residential services, but the acceptance of residential services shall not be a condition of obtaining a competency or criminal responsibility determination.

SECTION 2. Chapter 123 of the General Laws is hereby amended by striking out section 16 and inserting in place thereof the following section:-

Section 16: Hospitalization of persons incompetent to stand trial or not guilty by reason of mental illness; examination period; commitment; hearing; restrictions; dismissal of criminal charges

(a) The court having jurisdiction over the criminal proceedings may order that a person who has been found incompetent to stand trial or not guilty by reason of mental illness or mental defect in such proceedings be observed and examined for a period of 40 days at a community-based program or a facility contracted for by the department pursuant to subparagraph (g) of section 15; provided that, if the defendant is a male and if the court determines that the failure to retain him in strict security would create a likelihood of serious harm by reason of mental illness, or other mental defect, it may order such hospitalization at the Bridgewater state hospital; and provided, further, that the combined periods of hospitalization under the provisions of this section and paragraph (b) of section 15 shall not exceed 50 days.

(b) During the period of observation of a person believed to be incompetent to stand trial or within sixty days after a person is found to be incompetent to stand trial or not guilty of any crime by reason of mental illness or other mental defect, the district attorney, the superintendent of a facility or the medical director of the Bridgewater state hospital may petition the court having jurisdiction of the criminal case for the commitment of the person to a facility or to the Bridgewater state hospital. If the observation and examination pursuant to this section has been conducted at a community-based program contracted for by the department pursuant to subparagraph (g) of section 15, and the examining qualified physician or an examining qualified psychologist has reason to believe that failure to hospitalize such person would create a likelihood of serious harm by reason of mental illness, the examining qualified physician or an examining qualified psychologist may apply for the person’s commitment to a facility under the provisions of section 12 of this chapter and shall notify the court. However, the petition for the commitment of an untried defendant shall be heard only if the defendant is found incompetent to stand trial or if the criminal charges are dismissed after commitment. If the court makes the findings required by paragraph (a) of section 8 it shall order the person committed to a facility; if the court makes the findings required by paragraph (b) of section 8, it shall order the commitment of the person to the Bridgewater state hospital; otherwise the petition shall be dismissed and the person discharged. An order of commitment under the provisions of this paragraph shall be valid for 6 months. In the event a period of observation under the provisions of paragraph (a) has expired, or in the event no such period of examination has been ordered, the court may order the temporary detention of such person in a jail, house of correction, facility or the Bridgewater state hospital until such time as the findings required by this paragraph are made or a determination is made that such findings cannot be made.

(c) After the expiration of a commitment under paragraph (b) of this section, a person may be committed for additional 1 year periods under the provisions of sections 7 and 8 of this chapter, but no untried defendant shall be so committed unless in addition to the findings required by sections 7 and 8 the court also finds said defendant is incompetent to stand trial. If the person is not found incompetent, the court shall notify the court with jurisdiction of the criminal charges, which court shall thereupon order the defendant returned to its custody for the resumption of criminal proceedings. All subsequent proceedings for the further commitment of a person committed under this section shall be in the court which has jurisdiction of the facility or hospital.

(d) The district attorney for the district within which the alleged crime or crimes occurred shall be notified of any hearing conducted for a person under the provisions of this section or any subsequent hearing for such person conducted under the provisions of this chapter relative to the commitment of the person with mental illness and shall have the right to be heard at such hearings.

(e) Any person committed to a facility under the provisions of this section may be restricted in movements to the buildings and grounds of the facility at which the person is committed by the court which ordered the commitment. If such restrictions are ordered, they shall not be removed except with the approval of the court. If the superintendent seeks removal or modification of such restriction, the superintendent shall notify the district attorney who has or had jurisdiction of the relevant criminal case. If, after the superintendent communicates the superintendent's intention to remove or modify such restriction in writing to the court and the district attorney who has or had jurisdiction of the relevant criminal case, neither the court nor the district attorney makes written objection to such removal or modification within 14 days of receipt of the notice, such restriction shall be removed by the superintendent. If the superintendent or medical director of the Bridgewater state hospital intends to discharge a person committed under this section or at the end of a period of commitment intends not to petition for their further commitment, they shall notify the court and district attorney which have or had jurisdiction of the criminal case. Within 30 days of the receipt of such notice, the district attorney may petition for commitment under the provisions of paragraph (c). During such 30 day period, the person shall be held at the facility or hospital. This paragraph shall not apply to persons originally committed after a finding of incompetence to stand trial whose criminal charges have been dismissed.

(f) If a person is found incompetent to stand trial, the court shall send notice to the department of correction which shall compute the date of the expiration of the period of time equal to the time of imprisonment which the person would have had to serve prior to becoming eligible for parole if they had been convicted of the most serious crime with which they were charged in court and sentenced to the maximum sentence they could have received, if so convicted. For purposes of the computation of parole eligibility, the minimum sentence shall be regarded as 1 half of the maximum sentence potential sentence. Where applicable, the provisions of sections 129, 129A, 129B, and 129C of chapter 127 shall be applied to reduce such period of time. On the final date of such period, the court shall dismiss the criminal charges against such person, or the court in the interest of justice may dismiss the criminal charges against such person prior to the expiration of such period.

(g) The department shall establish a forensic navigators program to help guide, support, and advocate for persons involved in the criminal court system and who, pursuant to this chapter, have been ordered to undergo observation and evaluation for competency to stand trial or criminal responsibility pursuant to section 15, or ordered to undergo restoration of competency pursuant to this section, or who have been committed to a facility or the Bridgewater state hospital pursuant to subsection (b) of this section. Such forensic navigators shall serve as interim case managers and community liaisons for such persons. A forensic navigator shall be offered to persons who receive court orders for competency evaluations, subject to available department resources. No penalty shall be imposed on persons who decline to accept the services of a forensic navigator. The department shall promulgate regulations to govern the forensic navigator program and the services provided by forensic navigators.

SECTION 3. Special Commission to Collect Data on Competency to Stand Trial and Criminal Responsibility Determinations and to Recommend Reforms to These Processes

Notwithstanding any general or special law to the contrary, there shall be a special commission established to review and develop recommendations and best practices for evaluations of competency to stand trial and criminal responsibility conducted pursuant to sections 15 and 16 of chapter 123, including an analysis of the settings in which such evaluations are conducted. The commission shall be co-chaired by the secretary of the executive office of health and human services, or his or her designee, and the chief justice of the trial court or his or her designee. The commission shall solicit input from the chairs of the joint committee on the judiciary, the chairs of the joint committee on mental health, substance use and recovery, the secretary of public safety and security, the Massachusetts Psychiatric Society, the Massachusetts Psychological Association, the Committee for Public Counsel Services, the Massachusetts Association for Mental Health, the Association for Behavioral Healthcare, the Mental Health Legal Advisors Committee, and the Wildflower Alliance.

The commission shall gather and consider data related to number of persons held for observation and examination conducted pursuant to Section 15(a), 15(b), 16(a) and 16(b) of chapter 123, including, for each of these sections, the number of persons found to be competent to stand trial, incompetent to stand trial, criminally responsible and not criminally responsible, the average and median length of stay for those held pursuant to sections 15(a), 15(b), 16 (a) and 16(b), and the profession of providers conducting evaluations under these sections and outcome of determinations by these provider types; provided further, that data shall be stratified, where available, by age, race, ethnicity, gender identity, sexual orientation, individuals with Autism Spectrum Disorder, intellectual or developmental disabilities and persons experiencing homelessness; provided further, that the commission shall review up to 3 years of records of competency and criminal responsibility determinations and related hospitalizations with variation of factors to allow for data representative of the Commonwealth as a whole; provided further that the commission shall gather and evaluate potential reforms to the processes by which individuals are evaluated for competency to stand trial and criminal responsibility and the processes by which individuals are attempted to be restored to competency and shall make recommendations regarding possible reforms to these processes; provided further, that not later than June 30, 2024, the commission shall submit a report to the house and senate committees on the judiciary and the clerks of the senate and house of representatives with its findings and recommendations.

Name:	District/Address:	Date Added:
Marjorie C. Decker	25th Middlesex	1/19/2023