Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 338 (2024GS)

Sponsor

Rep. Abbott, N.

Final action

Governor Signed 3/13/2024

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• adds specific disorders to a definition of mental illness;
• provides additional requirements for the provision and use of documents and arrest reports for treatment assessments and hearings relating to mentally ill offenders;
• clarifies scheduling requirements for competency evaluations and treatment assessments;
• clarifies when a third party service provider may be used; and
• makes technical corrections.

Every vote on this bill

Bill text

MENTALLY ILL OFFENDERS AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Nelson T. Abbott
Senate Sponsor: 
 Todd D. Weiler
LONG TITLE
General Description:
This bill modifies provisions relating to offenders with a mental condition.
Highlighted Provisions:
This bill:
▸ adds specific disorders to a definition of mental illness;
▸ provides additional requirements for the provision and use of documents and arrest
reports for treatment assessments and hearings relating to mentally ill offenders;
▸ clarifies scheduling requirements for competency evaluations and treatment
assessments;
▸ clarifies when a third party service provider may be used; and
▸ makes technical corrections.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
76-2-305
, as last amended by Laws of Utah 2023, Chapter 184
77-16a-101
, as last amended by Laws of Utah 2023, Chapters 184, 330
77-16a-103
, as repealed and reenacted by Laws of Utah 2023, Chapter 184
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
76-2-305
 is amended to read:
76-2-305.
Mental condition -- Use as a defense -- Influence of alcohol or other
substance voluntarily consumed.
(1) As used in this section:
(a) (i) "Mental condition" means a mental illness or a mental disability that
substantially impairs an individual's mental, emotional, or behavioral functioning.
(ii) "Mental condition" does not include a mental abnormality that is manifested solely
by repeated criminal conduct, anti-social behavior, or a substance use disorder.
(b) "Mental disability" means an intellectual disability or a neurodevelopmental
disorder as those terms are defined in the current edition of the Diagnostic and Statistical
Manual of Mental Disorders published by the American Psychiatric Association.
(c) "Mental illness" means the following mental disorders as described in the most
recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the
American Psychiatric Association:
(i) schizophrenia spectrum and other psychotic disorders; [
or
]
(ii) bipolar I disorder;
(iii) posttraumatic stress disorder; or
[
(ii)
] 
(iv)
 other serious mental health conditions with psychotic features.
(2) (a) It is a defense to a prosecution under any statute or ordinance that the defendant,
as a result of a mental condition, lacked the mental state required as an element of the offense
charged.
(b) A mental condition is not otherwise a defense, but may be evidence in mitigation of
the penalty in a capital felony under Section 
76-3-207
 and may be evidence of special
mitigation reducing the level of a criminal homicide or attempted criminal homicide offense
under Section 
76-5-205.5
.
(3) The defense defined in this section includes the defenses known as "insanity" and
"diminished mental capacity."
(4) A person who asserts a defense of insanity or diminished mental capacity, and who
is under the influence of voluntarily consumed, injected, or ingested alcohol, controlled
substances, or volatile substances at the time of the alleged offense is not excused from
criminal responsibility on the basis of a mental condition if the alcohol or substance caused,
triggered, or substantially contributed to the mental condition.
Section 2. Section 
77-16a-101
 is amended to read:
77-16a-101.
Definitions.
As used in this chapter:
(1) "Board" means the Board of Pardons and Parole established under Section 
77-27-2
.
(2) "Department" means the Department of Health and Human Services.
(3) "Executive director" means the executive director of the Department of Health and
Human Services.
(4) "Forensic evaluator" means a licensed mental health professional who is:
(a) not involved in the defendant's treatment; and
(b) trained and qualified to conduct a guilty with a mental condition evaluation.
(5) "Mental condition" means the same as that term is defined in Section 
76-2-305
.
(6) "Mental disability" means the same as that term is defined in Section 
76-2-305
.
(7) "Mental health facility" means the Utah State Hospital or other facility that
provides mental health services under contract with the division, a local mental health
authority, or organization that contracts with a local mental health authority.
(8) "Mental health supervision" includes regular and periodic activities including:
(a) the review of a defendant's assessment, diagnostic formulation, individual service
plan development, and progress toward completion of care; [
and
]
(b) identification of barriers to a defendant's care, assistance in removing barriers to a
defendant's care, continuation of services to a defendant, authorization of care for a defendant,
and the observation of the delivery of clinical care to a defendant[
.
]
; and
(c) the provision of an update report to a court as required under Subsection
77-16a-103
(5)(g).
(9) "Mental illness" means the same as that term is defined in Section 
76-2-305
.
(10) "Offender with a mental condition" means an individual who has been adjudicated
guilty with a mental condition.
(11) "Secure setting" means a jail, prison, or locked inpatient medical facility approved
by the department.
(12) "UDC" means the Department of Corrections.
Section 3. Section 
77-16a-103
 is amended to read:
77-16a-103.
Plea of guilty with a mental condition-- Procedures -- Sentencing --
Reduction -- Costs.
(1) (a) (i) If a defendant wishes to enter a plea of guilty with a mental condition, the
parties may stipulate as to:
(A) whether the defendant had a mental condition at the time of the commission of the
offense; and
(B) whether the defendant could benefit from supervision or treatment.
(ii) If the parties stipulate as described in Subsection (1)(a)(i), the court shall enter
findings consistent with the parties' stipulation if the stipulation is supported by sufficient
evidence.
(b) If the parties do not stipulate to Subsection (1)(a)(i)[
,
]
:
(i)
 the court shall hold a hearing and determine, by clear and convincing evidence:
[
(i)
] 
(A)
 whether the defendant had a mental condition at the time of the commission of
the offense; and
[
(ii)
] 
(B)
 whether the defendant could benefit from supervision or treatment.
(ii)
(c) After reviewing the stipulation described in Subsection (1)(a)(i) or conducting a
hearing under Subsection (1)(b):
(i) if the court finds that the defendant had a mental condition at the time of the
offense, the court shall accept the defendant's plea of guilty with a mental condition; or
(ii) if the court finds that the defendant did not have a mental condition at the time of
the offense, the court may not accept the defendant's plea of guilty with a mental condition.
(2) (a) If a defendant wishes to enter a plea of guilty with a mental condition for a
felony offense and the parties do not stipulate to Subsection (1)(a)(i), before holding the
hearing described in Subsection (1)(b), the court may order the defendant to submit to an
examination, which may be conducted only by a forensic evaluator appointed by the
department, to determine:
(i) whether the defendant had a mental condition at the time of the commission of the
offense;
(ii) whether the defendant could benefit from supervision or treatment; or
(iii) whether the defendant currently is competent to enter a plea.
(b) (i) If a defendant wishes to enter a plea of guilty with a mental condition for a
misdemeanor offense and the parties do not stipulate to Subsection (1)(a)(i), before holding the
hearing described in Subsection (1)(b), the court may order the defendant to submit to an
examination by a forensic evaluator.
(ii) [
Unless otherwise ordered by the court, the
] 
The
 examination [
described in
Subsection (2)(b)(i)
] shall determine:
(A) whether the defendant had a mental condition at the time of the commission of the
offense;
(B) whether the defendant could benefit from supervision or treatment; or
(C) whether the defendant currently is competent to enter a plea.
(c) Before an examination is conducted pursuant to Subsection (1)(b) or this
Subsection (2):
(i) the petitioner or other party, as directed by the court or requested by the department,
shall provide to the forensic evaluation provider nonmedical information and materials relevant
to a treatment assessment, including the charging document, arrest or incident reports
pertaining to the charged offense, known criminal history information, and known prior mental
health evaluations and treatments; and
(ii) for purposes of a guilty with a mental condition evaluation, a custodian of mental
health records pertaining to the defendant, including the defendant's prior mental health
evaluations or records relating to the defendant's substance use disorder, may provide the
records to:
(A) with the defendant's consent, a forensic evaluation provider or the department on
the department's request; or
(B) pursuant to an order of the court, a forensic evaluation provider.
(3) 
(a)
 If a defendant relies on a private mental health evaluation in support of the
defendant's plea of guilty with a mental condition and the parties do not stipulate to Subsection
(1)(a)(i), upon the request of the prosecutor before the hearing described in Subsection (1)(b),
the court shall order the defendant to submit to an examination by:
[
(a)
] 
(i)
 the department if the offense is a felony; or
[
(b)
] 
(ii)
 the department or a forensic evaluator if the offense is a misdemeanor.
(b) The petitioner or other party, as directed by the court or requested by the
department, shall provide to the private mental health evaluation provider nonmedical
information and materials relevant to a treatment assessment, including the charging document,
arrest or incident reports pertaining to the charged offense, known criminal history information,
and known prior mental health evaluations and treatments.
(c) For purposes of a guilty with a mental condition evaluation, a custodian of mental
health records pertaining to the defendant, including the defendant's prior mental health
evaluations or records relating to the defendant's substance use disorder, may provide the
records to:
(i) with the defendant's consent, a private mental health evaluation provider or the
department on the department's request; or
(ii) pursuant to an order of the court, a private mental health evaluation provider.
(4) If a court finds that a defendant was guilty with a mental condition at the time of
the offense in accordance with Subsection [
(1)(c)(i)
] 
(1)(e)(i)
 but would not benefit from
available supervision or treatment, the court shall hold a sentencing hearing within 45 days of
the entry of the defendant's plea of guilty with a mental condition.
(5) (a) If a court finds that a defendant had a mental condition at the time of the
commission of the offense, the defendant could benefit from supervision or treatment, and has
entered a plea of guilty with a mental condition in accordance with Subsection [
(1)(c)(i)
]
(1)(e)(i)
, the court:
(i) shall order:
(A) the department to provide a treatment assessment of the defendant and to submit to
the court treatment recommendations for the defendant; or
(B) the defendant to arrange for a treatment assessment of the defendant with a private
provider and for the private provider to submit to the court treatment recommendations for the
defendant;
(ii) shall schedule a treatment review hearing within 30 days after the day on which the
court entered the plea of guilty with a mental condition; and
(iii) may defer sentencing for up to one year in accordance with Subsection (6), if the
defendant consents to a deferred sentence.
(b) The petitioner or other party, as directed by the court or requested by the
department, shall provide to the treatment assessment provider nonmedical information and
materials relevant to a treatment assessment, including the charging document, arrest or
incident reports pertaining to the charged offense, known criminal history information, and
known prior mental health evaluations and treatments.
(c) For purposes of a guilty with a mental condition treatment assessment, a custodian
of mental health records pertaining to the defendant, including the defendant's prior mental
health evaluations or records relating to the defendant's substance use disorder, may provide the
records to:
(i) with the defendant's consent, a treatment assessment provider or the department on
the department's request; or
(ii) pursuant to an order of the court, a treatment assessment provider.
[
(b)
] 
(d)
 At the treatment review hearing described in Subsection (5)(a)(ii), the court
shall:
(i) consider all available diagnosis, treatment, and supervision recommendations;
(ii) if a party does not agree with treatment recommendations issued by the department
under Subsection (5)(a)(i)(A), hold a hearing on the issue of the department's recommendations
and make appropriate modifications to the recommendations if necessary; and
(iii) order the defendant to comply with all treatment and supervision recommendations
that [
the court finds
] are in the best interest of the defendant and public safety.
[
(c)
] 
(e)
 (i) In determining treatment and supervision recommendations under
Subsection [
(5)(b)
] 
(5)(d)
, the court may order the defendant to be placed in a secure setting as
described in Subsections [
(5)(c)(ii) and (iii)
] 
(5)(e)(ii) and (iii)
 if the court finds that the
placement would be in the best interest of the defendant, a victim of the defendant, or public
safety.
(ii) (A) If the offense is a class C misdemeanor, the court may not place the defendant
in a secure setting for more than 90 days.
(B) If the offense is a class B misdemeanor, the court may not place the defendant in a
secure setting for more than six months.
(C) If the offense is a class A misdemeanor or a felony, the court may place the
defendant in a secure setting for up to one year.
(iii) The court shall, before making a determination as to a secure setting placement,
notify the executive director of the proposed placement and provide the department with an
opportunity to:
(A) evaluate the defendant; and
(B) make a recommendation regarding placement to the court.
[
(d)
] 
(f)
 If the court determines that the defendant is eligible for supervised release as
part of the defendant's treatment and supervision recommendations under Subsection [
(5)(b)
]
(5)(d)
, except as provided in Section 
76-3-406
, the court may order:
(i) if the offense is a felony:
(A) supervision by Adult Probation and Parole
, or a third party that is approved by
Adult Probation and Parole,
 for a period of up to one year in accordance with the applicable
supervision provisions described in Title 64, Chapter 13, Department of Corrections - State
Prison; [
or
] 
and
(B) [
supervision including
] mental health supervision by
:
(I) the department or a local mental health authority; or
(II) if the court determines that it is appropriate,
 a public or private entity that provides
mental or behavioral health services and is approved by the department [
or the court
]; or
(ii) if the offense is a misdemeanor, [
supervision including
] mental health supervision
by:
(A) a local mental health authority; or
(B) 
if the court determines that it is appropriate,
 a public or private entity that provides
mental or behavioral health services and is approved by the department [
or the court
].
[
(e)
] 
(g)
 (i) After the initial review hearing described in Subsection (5)(a), the court
shall hold periodic review hearings approximately every 90 days, the frequency of which may
be modified by the court.
(ii) At a review hearing described in Subsection [
(5)(e)(i)
] 
(5)(g)(i)
:
(A) the department or the department's designee shall report on the progress of the
defendant, provide recommendations for the defendant's future care, treatment, and secure or
unsecure placement, and advise the court on the medical necessity of treatments for the
defendant;
(B) the court shall review the status of the defendant and determine whether any
changes are needed to the defendant's supervision or treatment plan; and
(C) a party may request, if the party has a good faith basis, that the court review or
change the defendant's placement within a secure or non-secure setting.
[
(f)
] 
(h)
 If a defendant is willfully non-compliant with the treatment or supervision
ordered by the court under this Subsection (5), the court shall hold an order to show cause
hearing to determine whether the court should:
(i) proceed with sentencing under Subsection (6);
(ii) change the defendant's placement to a secure setting;
(iii) impose another sanction; or
(iv) take no action.
(6) (a) The court shall defer sentencing for a defendant who has pleaded guilty with a
mental condition as described in Subsection (5) until:
(i) the court determines, after an order to show cause hearing or a review hearing as
described in Subsection (5), that:
(A) the defendant is willfully non-compliant with treatment or supervision and is
unlikely to become compliant with further ordered treatment or supervision; or
(B) the defendant has reached the maximum benefit of treatment and supervision; or
(ii) one year has elapsed after the day on which the court entered the defendant's plea of
guilty with a mental condition.
(b) At the sentencing hearing, the court shall:
(i) consider all treatment and supervision that has occurred before the sentencing
hearing in the defendant's case;
(ii) credit any time the defendant has spent in a mental health facility or other
residential treatment facility or a secure facility against the defendant's sentence;
(iii) consider victim input;
(iv) consider the best interests of the defendant, including which sentence will help
prevent the defendant:
(A) from losing the defendant's ability to control the defendant's state of mental health;
and
(B) from committing additional criminal conduct related to the defendant's mental
condition;
(v) consider the best interest of public safety; and
(vi) consider any other relevant factor or circumstance.
(7) 
(a)
 Except as provided in Subsection [
(7)(c)
] 
(7)(b)
, after a defendant who has been
sentenced under Subsection (6) has completed the defendant's sentence and any probation or
parole:
[
(a)
] 
(i)
 notwithstanding the contrary provisions in Subsection 
76-3-402
(4) or
76-3-406
(1), the court has jurisdiction to enter a judgment of conviction and shall reduce the
judgment of conviction for the offense by two degrees from the original offense; and
[
(b)
] 
(ii)
 notwithstanding the contrary provisions in Subsection 
76-3-402
(4) or
76-3-406
(1), if the prosecuting attorney specifically agrees in writing or on the court record at
any time, the court has jurisdiction to consider and enter a judgment of conviction and may
enter a judgment of conviction for the offense that is reduced by up to three degrees from the
original offense.
[
(c)
] 
(b)
 If a defendant's probation is revoked and any suspended sentence is imposed,
the defendant may not receive a reduction under this Subsection (7).
(8) (a) (i) Except as provided in Subsection (8)(a)(iv), when the offense is a state
offense, expenses of examination, observation, and treatment for the defendant shall be paid by
the department when not paid for by the defendant's insurance.
(ii) Travel expenses shall be paid by the county where prosecution is commenced.
(iii) Expenses of examination for a defendant charged with a violation of a municipal
or county ordinance shall be paid by the municipality or county that commenced the
prosecution.
(iv) The department is not responsible for payment for an evaluation described in
Subsection [
(3)(b)
] 
(3)(a)(ii)
 that is conducted by a forensic evaluator who is privately retained
by a party.
(b) (i) Provisions in this part for the support at public expense of a defendant with a
mental condition do not release an insurer of a defendant with a mental condition from liability
for the care or treatment of the defendant with a mental condition.
(ii) The department is authorized to collect amounts spent on a defendant with a mental
condition from an insurer of the defendant with a mental condition.
(iii) A health insurance company may not deny coverage for court-ordered treatment or
supervision of a defendant with a mental condition solely based on the fact that the treatment or
supervision is ordered by a court if the treatment or supervision is medically necessary and
would otherwise be a covered benefit under the defendant's insurance plan.
(9) A guilty with a mental condition evaluation conducted under this section is also
subject to the procedural requirements of Subsections 
77-15-5
(8) through (11) and
77-15-6
(4)(a).
Section 4. 
Effective date.
This bill takes effect on May 1, 2024.