HOUSE BILL No. 4963 June 25, 1997, Introduced by Rep. Olshove and referred to the Committee on Mental Health. A bill to amend 1974 PA 258, entitled "Mental health code," (MCL 330.1001 to 330.2106) by adding chapter 10a. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 CHAPTER 10A 2 SEC. 1060. AS USED IN THIS CHAPTER: 3 (A) "AGENCY" MEANS ANY DEPARTMENT OR AGENCY THAT IS AUTHO- 4 RIZED TO DIRECT THE RELEASE OF AN INDIVIDUAL WHO IS SERVING A 5 SENTENCE OR TERM OF CONFINEMENT OR WHO IS RECEIVING TREATMENT. 6 (B) "MENTAL ABNORMALITY" MEANS A CONGENITAL OR ACQUIRED CON- 7 DITION THAT AFFECTS AN INDIVIDUAL'S EMOTIONAL OR VOLITIONAL 8 CAPACITY THAT PREDISPOSES THE INDIVIDUAL TO COMMIT SEXUALLY VIO- 9 LENT OFFENSES TO A DEGREE THAT RENDERS THE INDIVIDUAL A MENACE TO 10 THE HEALTH AND SAFETY OF OTHERS. 00879'97 MGM 2 1 (C) "PREDATORY ACTS" MEANS ACTS DIRECTED TOWARD STRANGERS OR 2 INDIVIDUALS WITH WHOM A RELATIONSHIP HAS BEEN ESTABLISHED OR 3 PROMOTED FOR THE PRIMARY PURPOSE OF VICTIMIZATION. 4 (D) "SEXUALLY VIOLENT OFFENSE" MEANS 1 OR MORE OF THE FOL- 5 LOWING COMMITTED ON, BEFORE, OR AFTER JANUARY 1, 1998: 6 (i) FIRST DEGREE CRIMINAL SEXUAL CONDUCT, AS DESCRIBED IN 7 SECTION 520B OF THE MICHIGAN PENAL CODE, 1931 PA 328, MCL 8 750.520B. 9 (ii) SECOND DEGREE CRIMINAL SEXUAL CONDUCT, AS DESCRIBED IN 10 SECTION 520C OF THE MICHIGAN PENAL CODE, 1931 PA 328, MCL 11 750.520C. 12 (iii) THIRD DEGREE CRIMINAL SEXUAL CONDUCT, AS DESCRIBED IN 13 SECTION 520D OF THE MICHIGAN PENAL CODE, 1931 PA 328, MCL 14 750.520D. 15 (iv) FOURTH DEGREE CRIMINAL SEXUAL CONDUCT, AS DESCRIBED IN 16 SECTION 520E OF THE MICHIGAN PENAL CODE, 1931 PA 328, MCL 17 750.520E. 18 (v) ASSAULT WITH INTENT TO COMMIT CRIMINAL SEXUAL CONDUCT, 19 AS DESCRIBED IN SECTION 520G OF THE MICHIGAN PENAL CODE, 1931 PA 20 328, MCL 750.520G. 21 (vi) A FELONY OFFENSE UNDER FEDERAL LAW OR ANOTHER STATE'S 22 LAW THAT UNDER THE LAWS OF THIS STATE WOULD BE A SEXUALLY VIOLENT 23 OFFENSE AS DEFINED IN THIS SECTION. 24 (vii) ANY OTHER FELONY OFFENSE UNDER THE LAWS OF THIS STATE 25 THAT AT TRIAL HAS BEEN DETERMINED BEYOND ANY REASONABLE DOUBT TO 26 HAVE BEEN SEXUALLY MOTIVATED. 00879'97 3 1 (E) "SEXUALLY VIOLENT PREDATOR" MEANS AN INDIVIDUAL WHO HAS 2 BEEN CONVICTED OF OR CHARGED WITH A SEXUALLY VIOLENT OFFENSE AND 3 WHO SUFFERS FROM A MENTAL ABNORMALITY OR PERSONALITY DISORDER 4 THAT MAKES THE INDIVIDUAL LIKELY TO ENGAGE IN HABITUAL PREDATORY 5 ACTS OF SEXUAL VIOLENCE. 6 SEC. 1061. (1) IF AN AGENCY THAT HAS JURISDICTION OVER AN 7 INDIVIDUAL DESCRIBED IN SECTION 1062 DETERMINES THAT THE INDIVID- 8 UAL MAY BE A SEXUALLY VIOLENT PREDATOR, WITHIN 3 MONTHS BEFORE 9 THE ANTICIPATED DATE OF THE INDIVIDUAL'S RELEASE FROM THE FACILI- 10 TY, THE AGENCY SHALL PROVIDE WRITTEN NOTIFICATION OF THE DATE OF 11 RELEASE TO THE PROSECUTING ATTORNEY OF THE COUNTY IN WHICH THE 12 INDIVIDUAL WAS CHARGED. 13 (2) THE AGENCY AND ITS EMPLOYEES ARE IMMUNE FROM LIABILITY 14 FOR GOOD FAITH ACTS IN COMPLIANCE WITH THIS SECTION. 15 SEC. 1062. THE PROSECUTING ATTORNEY OF THE COUNTY IN WHICH 16 AN INDIVIDUAL WAS CONVICTED OF OR CHARGED WITH A SEXUALLY VIOLENT 17 OFFENSE, OR THE ATTORNEY GENERAL IF REQUESTED BY THE PROSECUTING 18 ATTORNEY, MAY FILE A PETITION ALLEGING THAT AN INDIVIDUAL IS A 19 SEXUALLY VIOLENT PREDATOR AND STATING SUFFICIENT FACTS TO SUPPORT 20 THE ALLEGATION, IF 1 OR MORE OF THE FOLLOWING CIRCUMSTANCES 21 EXIST: 22 (A) THE INDIVIDUAL WAS CONVICTED OF A SEXUALLY VIOLENT 23 OFFENSE AND HIS OR HER SENTENCE IS ABOUT TO EXPIRE, OR HAS 24 EXPIRED, ON OR AFTER JANUARY 1, 1998. 25 (B) THE INDIVIDUAL WAS FOUND TO HAVE COMMITTED A SEXUALLY 26 VIOLENT OFFENSE AS A JUVENILE, AND HIS OR HER TERM OF CONFINEMENT 27 IS ABOUT TO EXPIRE, OR HAS EXPIRED, ON OR AFTER JANUARY 1, 1998. 00879'97 4 1 (C) THE INDIVIDUAL WAS CHARGED WITH A SEXUALLY VIOLENT 2 OFFENSE, HAS BEEN DETERMINED TO BE INCOMPETENT TO STAND TRIAL, 3 AND IS ABOUT TO BE RELEASED, OR HAS BEEN RELEASED, ON OR AFTER 4 JANUARY 1, 1998. 5 (D) THE INDIVIDUAL HAS BEEN FOUND NOT GUILTY BY REASON OF 6 INSANITY OF A SEXUALLY VIOLENT OFFENSE, HE OR SHE IS ABOUT TO BE 7 RELEASED, OR HAS BEEN RELEASED, ON OR AFTER JANUARY 1, 1998, AND 8 IT APPEARS THAT THE INDIVIDUAL MAY BE A SEXUALLY VIOLENT 9 PREDATOR. 10 SEC. 1063. UPON THE FILING OF A PETITION UNDER SECTION 11 1062, THE JUDGE SHALL DETERMINE WHETHER PROBABLE CAUSE EXISTS TO 12 BELIEVE THAT THE INDIVIDUAL NAMED IN THE PETITION IS A SEXUALLY 13 VIOLENT PREDATOR. IF THE DETERMINATION IS MADE THAT PROBABLE 14 CAUSE EXISTS, THE JUDGE SHALL ORDER THAT THE INDIVIDUAL BE TAKEN 15 INTO CUSTODY AND TRANSFERRED TO THE CENTER FOR FORENSIC PSYCHIA- 16 TRY FOR AN EVALUATION AS TO WHETHER THE INDIVIDUAL IS A SEXUALLY 17 VIOLENT PREDATOR. 18 SEC. 1064. (1) NOT MORE THAN 45 DAYS AFTER THE FILING OF A 19 PETITION UNDER SECTION 1062, THE COURT SHALL CONDUCT A TRIAL TO 20 DETERMINE WHETHER THE INDIVIDUAL IS A SEXUALLY VIOLENT PREDATOR. 21 THE INDIVIDUAL, THE PROSECUTING ATTORNEY OR ATTORNEY GENERAL, OR 22 THE JUDGE HAS THE RIGHT TO DEMAND THAT THE TRIAL BE BEFORE A 23 JURY. IF NO JURY DEMAND IS MADE, THE TRIAL SHALL BE BEFORE THE 24 COURT. 25 (2) AT ALL STAGES OF THE PROCEEDINGS UNDER THIS CHAPTER, AN 26 INDIVIDUAL SUBJECT TO THIS CHAPTER IS ENTITLED TO THE ASSISTANCE 00879'97 5 1 OF COUNSEL. IF THE INDIVIDUAL IS INDIGENT, THE COURT SHALL 2 APPOINT COUNSEL TO ASSIST HIM OR HER. 3 (3) IF AN INDIVIDUAL IS SUBJECTED TO AN EXAMINATION UNDER 4 THIS CHAPTER, HE OR SHE MAY RETAIN AN EXPERT OR PROFESSIONAL 5 PERSON OF HIS OR HER CHOICE TO PERFORM AN EXAMINATION ON HIS OR 6 HER BEHALF. THE SELECTED EXPERT OR PROFESSIONAL PERSON SHALL BE 7 PERMITTED TO HAVE REASONABLE ACCESS TO THE INDIVIDUAL FOR THE 8 PURPOSE OF THE EXAMINATION, AND TO ALL RELEVANT MEDICAL AND PSY- 9 CHOLOGICAL RECORDS AND REPORTS. IF THE INDIVIDUAL IS INDIGENT, 10 THE COURT SHALL, UPON THE INDIVIDUAL'S REQUEST, ASSIST THE INDI- 11 VIDUAL IN OBTAINING AN EXPERT OR PROFESSIONAL PERSON TO PERFORM 12 AN EXAMINATION OR PARTICIPATE IN THE TRIAL ON THE INDIVIDUAL'S 13 BEHALF. 14 SEC. 1065. (1) THE COURT OR JURY SHALL DETERMINE WHETHER, 15 BEYOND A REASONABLE DOUBT, THE INDIVIDUAL IS A SEXUALLY VIOLENT 16 PREDATOR. IF THE STATE ALLEGES THAT THE PRIOR SEXUALLY VIOLENT 17 OFFENSE THAT FORMS THE BASIS FOR THE PETITION FOR COMMITMENT WAS 18 AN ACT THAT WAS SEXUALLY MOTIVATED AS PROVIDED IN SECTION 19 1060(D)(vii), THE STATE SHALL PROVE BEYOND A REASONABLE DOUBT 20 THAT THE ALLEGED SEXUALLY VIOLENT ACT WAS SEXUALLY MOTIVATED. 21 (2) IF THE COURT OR JURY DETERMINES THAT THE INDIVIDUAL IS A 22 SEXUALLY VIOLENT PREDATOR, THE INDIVIDUAL SHALL BE COMMITTED TO 23 THE CUSTODY OF THE DEPARTMENT IN A SECURE FACILITY FOR CONTROL, 24 CARE, AND TREATMENT UNTIL SUCH TIME AS THE INDIVIDUAL'S MENTAL 25 ABNORMALITY OR PERSONALITY DISORDER HAS SO CHANGED THAT THE INDI- 26 VIDUAL IS SAFE TO BE AT LARGE. THE CONTROL, CARE, AND TREATMENT 27 SHALL BE PROVIDED AT A FACILITY OPERATED BY THE DEPARTMENT. THE 00879'97 6 1 FACILITY SHALL NOT BE LOCATED ON THE GROUNDS OF A STATE MENTAL 2 FACILITY OR REGIONAL HABILITATION CENTER UNLESS THE DEPARTMENT OF 3 CORRECTIONS CERTIFIES THAT THE FACILITY IS SUFFICIENTLY SECURE 4 FOR THIS POPULATION. THE INVOLUNTARY DETENTION OR COMMITMENT OF 5 INDIVIDUALS UNDER THIS CHAPTER SHALL CONFORM TO CONSTITUTIONAL 6 REQUIREMENTS FOR CARE AND TREATMENT. 7 (3) IF THE COURT OR JURY IS NOT SATISFIED BEYOND A REASON- 8 ABLE DOUBT THAT THE INDIVIDUAL IS A SEXUALLY VIOLENT PREDATOR, 9 THE COURT SHALL ORDER THE INDIVIDUAL'S RELEASE. 10 SEC. 1066. (1) IF THE INDIVIDUAL NAMED IN THE PETITION HAS 11 BEEN FOUND INCOMPETENT TO STAND TRIAL, AND IS ABOUT TO BE OR HAS 12 BEEN RELEASED IN ACCORDANCE WITH SECTION 1044, THE COURT SHALL 13 FIRST HEAR EVIDENCE AND DETERMINE WHETHER THE INDIVIDUAL COMMIT- 14 TED THE ACT OR ACTS CHARGED IF THE COURT DID NOT ENTER A FINDING 15 PRIOR TO DISMISSAL UNDER SECTION 1044 THAT THE INDIVIDUAL COMMIT- 16 TED THE ACT OR ACTS CHARGED. THE HEARING ON THIS ISSUE SHALL 17 COMPLY WITH ALL THE PROCEDURES SPECIFIED IN THIS CHAPTER. THE 18 RULES OF EVIDENCE APPLICABLE IN CRIMINAL CASES APPLY TO A TRIAL 19 UNDER THIS SECTION, AND THE INDIVIDUAL HAS ALL CONSTITUTIONAL 20 RIGHTS AVAILABLE TO DEFENDANTS AT CRIMINAL TRIALS, OTHER THAN THE 21 RIGHT NOT TO BE TRIED WHILE INCOMPETENT. 22 (2) AFTER HEARING EVIDENCE ON THE ISSUE, THE COURT SHALL 23 MAKE SPECIFIC FINDINGS ON WHETHER THE INDIVIDUAL COMMITTED THE 24 ACT OR ACTS CHARGED, THE EXTENT TO WHICH THE INDIVIDUAL'S INCOM- 25 PETENCE OR DEVELOPMENTAL DISABILITY AFFECTED THE OUTCOME OF THE 26 HEARING, INCLUDING ITS EFFECT ON THE INDIVIDUAL'S ABILITY TO 27 CONSULT WITH AND ASSIST COUNSEL AND TO TESTIFY IN HIS OR HER OWN 00879'97 7 1 BEHALF, THE EXTENT TO WHICH THE EVIDENCE COULD BE RECONSTRUCTED 2 WITHOUT THE ASSISTANCE OF THE INDIVIDUAL, AND THE STRENGTH OF THE 3 PROSECUTION'S CASE. IF, AFTER THE CONCLUSION OF THE HEARING ON 4 THIS ISSUE, THE COURT FINDS, BEYOND A REASONABLE DOUBT, THAT THE 5 INDIVIDUAL COMMITTED THE ACT OR ACTS CHARGED, THE COURT SHALL 6 ENTER A FINAL ORDER, APPEALABLE BY THE INDIVIDUAL, ON THAT ISSUE, 7 AND MAY PROCEED TO CONSIDER WHETHER THE INDIVIDUAL SHOULD BE COM- 8 MITTED UNDER SECTION 1065. 9 SEC. 1067. AN INDIVIDUAL COMMITTED UNDER THIS CHAPTER SHALL 10 BE EXAMINED AT LEAST ONCE EACH YEAR. THE INDIVIDUAL MAY RETAIN 11 OR, IF HE OR SHE IS INDIGENT AND SO REQUESTS, THE COURT MAY 12 APPOINT, A QUALIFIED EXPERT OR OTHER PROFESSIONAL PERSON TO 13 EXAMINE HIM OR HER. THE EXPERT OR PROFESSIONAL PERSON SHALL HAVE 14 ACCESS TO ALL RECORDS CONCERNING THE INDIVIDUAL. THE DEPARTMENT 15 SHALL PROVIDE AN ANNUAL REPORT TO THE COURT THAT COMMITTED THE 16 INDIVIDUAL UNDER THIS CHAPTER. 17 SEC. 1068. (1) IF THE DIRECTOR OF THE DEPARTMENT OR THE 18 DIRECTOR OF THE FACILITY IN WHICH THE INDIVIDUAL HAS BEEN COMMIT- 19 TED DETERMINES THAT THE INDIVIDUAL'S MENTAL ABNORMALITY HAS 20 CHANGED SO THAT THE INDIVIDUAL IS NOT LIKELY TO COMMIT SEXUALLY 21 VIOLENT OFFENSES IF RELEASED, THE DIRECTOR OF THE DEPARTMENT OR 22 THE DIRECTOR OF THE FACILITY SHALL AUTHORIZE THE INDIVIDUAL TO 23 PETITION THE COURT FOR RELEASE. THE PETITION SHALL BE SERVED 24 UPON THE COURT AND THE PROSECUTING ATTORNEY. 25 (2) UPON RECEIPT OF A PETITION FOR RELEASE, THE COURT SHALL 26 ORDER A HEARING TO BE HELD WITHIN 45 DAYS OF THE RECEIPT. THE 27 PROSECUTING ATTORNEY OR THE ATTORNEY GENERAL, IF REQUESTED BY THE 00879'97 8 1 COUNTY, SHALL REPRESENT THE STATE, AND SHALL HAVE THE RIGHT TO 2 HAVE THE PETITIONER EXAMINED BY AN EXPERT OR PROFESSIONAL PERSON 3 OF HIS OR HER CHOICE. 4 (3) THE HEARING SHALL BE BEFORE A JURY IF DEMANDED BY EITHER 5 THE PETITIONER OR THE PROSECUTING ATTORNEY OR ATTORNEY GENERAL. 6 THE ATTORNEY FOR THE STATE HAS THE BURDEN OF PROVING BEYOND A 7 REASONABLE DOUBT THAT THE PETITIONER'S MENTAL ABNORMALITY OR PER- 8 SONALITY DISORDER REMAINS SO THAT THE PETITIONER IS NOT SAFE TO 9 BE AT LARGE AND THAT IF DISCHARGED IS LIKELY TO COMMIT SEXUALLY 10 VIOLENT OFFENSES. 11 SEC. 1069. (1) NOTWITHSTANDING SECTION 1068, AN INDIVIDUAL 12 MAY PETITION THE COURT FOR DISCHARGE WITHOUT THE APPROVAL OF THE 13 DIRECTOR OF THE DEPARTMENT OR THE DIRECTOR OF THE FACILITY. THE 14 DIRECTOR OF THE DEPARTMENT SHALL PROVIDE THE COMMITTED INDIVIDUAL 15 WITH AN ANNUAL WRITTEN NOTICE OF THE INDIVIDUAL'S RIGHT TO PETI- 16 TION THE COURT FOR RELEASE OVER THE DEPARTMENT DIRECTOR'S OR 17 FACILITY DIRECTOR'S OBJECTION. THE NOTICE SHALL CONTAIN A WAIVER 18 OF RIGHTS. THE DIRECTOR OF THE DEPARTMENT SHALL FORWARD THE 19 NOTICE AND WAIVER FORM TO THE COURT WITH THE ANNUAL REPORT 20 REQUIRED UNDER SECTION 1067. 21 (2) IF THE INDIVIDUAL DOES NOT AFFIRMATIVELY WAIVE THE RIGHT 22 TO PETITION, THE COURT SHALL SET A SHOW CAUSE HEARING TO DETER- 23 MINE WHETHER FACTS EXIST THAT WARRANT A HEARING ON WHETHER THE 24 INDIVIDUAL'S CONDITION HAS SO CHANGED THAT HE OR SHE IS SAFE TO 25 BE AT LARGE. THE COMMITTED INDIVIDUAL HAS A RIGHT TO HAVE AN 26 ATTORNEY REPRESENT HIM OR HER AT THE SHOW CAUSE HEARING BUT IS 27 NOT ENTITLED TO BE PRESENT AT THE SHOW CAUSE HEARING. IF THE 00879'97 9 1 COURT AT THE SHOW CAUSE HEARING DETERMINES THAT PROBABLE CAUSE 2 EXISTS TO BELIEVE THAT THE INDIVIDUAL'S MENTAL ABNORMALITY HAS SO 3 CHANGED THAT THE INDIVIDUAL IS SAFE TO BE AT LARGE AND WILL NOT 4 ENGAGE IN SEXUALLY VIOLENT OFFENSES IF DISCHARGED, THEN THE COURT 5 SHALL SET A HEARING ON THE ISSUE. THE COMMITTED INDIVIDUAL IS 6 ENTITLED TO BE PRESENT AT THE HEARING AND TO HAVE THE BENEFIT OF 7 ALL CONSTITUTIONAL PROTECTIONS THAT WERE AFFORDED TO HIM OR HER 8 AT THE INITIAL COMMITMENT PROCEEDING. THE PROSECUTING ATTORNEY 9 OR THE ATTORNEY GENERAL IF REQUESTED BY THE COUNTY SHALL REPRE- 10 SENT THE STATE AND SHALL HAVE A RIGHT TO A JURY TRIAL AND TO HAVE 11 THE COMMITTED INDIVIDUAL EVALUATED BY EXPERTS CHOSEN BY THE 12 STATE. THE COMMITTED INDIVIDUAL ALSO HAS THE RIGHT TO HAVE 13 EXPERTS EVALUATE HIM OR HER ON HIS OR HER BEHALF. THE COURT 14 SHALL APPOINT AN EXPERT IF THE INDIVIDUAL IS INDIGENT AND 15 REQUESTS AN APPOINTMENT. THE ATTORNEY FOR THE STATE HAS THE 16 BURDEN OF PROVING BEYOND A REASONABLE DOUBT THAT THE COMMITTED 17 INDIVIDUAL'S MENTAL ABNORMALITY HAS NOT CHANGED AND THAT THE 18 INDIVIDUAL IS NOT SAFE TO BE AT LARGE AND IF RELEASED WILL ENGAGE 19 IN SEXUALLY VIOLENT OFFENSES. 20 SEC. 1070. NOTHING IN THIS CHAPTER PROHIBITS AN INDIVIDUAL 21 FROM FILING A PETITION FOR DISCHARGE UNDER THIS CHAPTER. IF AN 22 INDIVIDUAL HAS PREVIOUSLY FILED A PETITION FOR DISCHARGE WITHOUT 23 THE DEPARTMENT DIRECTOR'S OR FACILITY DIRECTOR'S APPROVAL AND THE 24 COURT DETERMINED, EITHER UPON REVIEW OF THE PETITION OR FOLLOWING 25 A HEARING, THAT THE PETITIONER'S PETITION WAS FRIVOLOUS OR THAT 26 THE PETITIONER'S CONDITION HAD NOT SO CHANGED THAT HE OR SHE WAS 27 SAFE TO BE AT LARGE, THEN THE COURT SHALL DENY THE SUBSEQUENT 00879'97 10 1 PETITION UNLESS THE PETITION CONTAINS FACTS UPON WHICH A COURT 2 COULD FIND THAT THE CONDITION OF THE PETITIONER HAD SO CHANGED 3 THAT A HEARING WAS WARRANTED. UPON RECEIPT OF A FIRST OR SUBSE- 4 QUENT PETITION FROM A COMMITTED INDIVIDUAL WITHOUT THE DEPARTMENT 5 DIRECTOR'S OR FACILITY DIRECTOR'S APPROVAL, THE COURT SHALL 6 REVIEW THE PETITION AND DETERMINE IF THE PETITION IS BASED UPON 7 FRIVOLOUS GROUNDS AND IF SO SHALL DENY THE PETITION WITHOUT A 8 HEARING. 9 SEC. 1071. THE DEPARTMENT IS RESPONSIBLE FOR ALL COSTS 10 RELATED TO THE EVALUATION AND TREATMENT OF INDIVIDUALS COMMITTED 11 TO ITS CUSTODY UNDER ANY PROVISION OF THIS CHAPTER. THE DEPART- 12 MENT MAY OBTAIN REIMBURSEMENT IN ACCORDANCE WITH CHAPTER 8 FOR 13 THE COST AND CARE OF TREATMENT OF INDIVIDUALS COMMITTED TO ITS 14 CUSTODY. 15 SEC. 1072. IN ADDITION TO ANY OTHER INFORMATION REQUIRED TO 16 BE RELEASED UNDER THIS CHAPTER, THE DEPARTMENT SHALL RELEASE REL- 17 EVANT INFORMATION THAT IS NECESSARY TO PROTECT THE PUBLIC CON- 18 CERNING A SPECIFIC SEXUALLY VIOLENT PREDATOR COMMITTED UNDER THIS 19 CHAPTER. 00879'97 Final page. MGM