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SENATE BILL NO. 145
INTRODUCED BY R. WEBB
A BILL FOR AN ACT ENTITLED: "AN ACT GENERALLY REVISING LAWS GOVERNING WHEN CERTAIN INDIVIDUALS MAY BE TRANSFERRED TO A CORRECTIONAL FACILITY; ESTABLISHING A REVIEW AND HEARING PROCESS THAT MUST BE COMPLETED BEFORE A PERSON SENTENCED TO THE CUSTODY OF THE DIRECTOR OF THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES MAY BE TRANSFERRED FROM A MENTAL HEALTH, RESIDENTIAL, OR DEVELOPMENTAL DISABILITIES FACILITY TO A CORRECTIONAL FACILITY; REQUIRING A PUBLIC DEFENDER FOR INDIVIDUALS UNABLE TO AFFORD COUNSEL; ALLOWING A PERSON WHO IS TRANSFERRED TO A CORRECTIONAL FACILITY AFTER A REVIEW AND HEARING PROCESS TO APPEAL THE DECISION TO A DISTRICT COURT JUDGE; REQUIRING THAT CERTAIN MENTAL HEALTH TREATMENT BE PROVIDED TO A PERSON TRANSFERRED TO A CORRECTIONAL FACILITY; REQUIRING THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES TO TRANSFER A PERSON BACK TO A MENTAL HEALTH, RESIDENTIAL, OR DEVELOPMENTAL DISABILITIES FACILITY IF CERTAIN PROFESSIONALS DETERMINE THAT THE PERSON'S PLACEMENT IN A CORRECTIONAL FACILITY IS NOT BEST MEETING THE PERSON'S CUSTODY, CARE, AND TREATMENT NEEDS; AND AMENDING SECTION SECTIONS 46-14-312 AND 47-1-104, MCA."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 46-14-312, MCA, is amended to read:
"46-14-312. Sentence to be imposed. (1) If the court finds that the defendant at the time of the commission of the offense of which the defendant was convicted did not suffer from a mental disease or disorder or developmental disability as described in 46-14-311, the court shall sentence the defendant as provided in Title 46, chapter 18.
(2) If the court finds that the defendant at the time of the commission of the offense suffered from a mental disease or disorder or developmental disability as described in 46-14-311, any mandatory minimum sentence prescribed by law for the offense need not apply. The court shall sentence the defendant to be committed to the custody of the director of the department of public health and human services to be placed, subject to [section 2] and after consideration of the recommendations of the professionals providing treatment to the defendant and recommendations of the professionals who have evaluated the defendant, in an appropriate correctional facility, mental health facility, as defined in 53-21-102, residential facility, as defined in 53-20-102, or developmental disabilities facility, as defined in 53-20-202, for custody, care, and treatment for a definite period of time not to exceed the maximum term of imprisonment that could be imposed under subsection (1). The director may, subject to [section 2] and after considering the recommendations of the professionals providing treatment to the defendant and recommendations of the professionals who have evaluated the defendant, subsequently transfer the defendant to another correctional, mental health, residential, or developmental disabilities facility that will would better serve the defendant's custody, care, and treatment needs. The authority of the court with regard to sentencing is the same as authorized in Title 46, chapter 18, if the treatment of the individual and the protection of the public are provided for.
(3) Either the director or a defendant whose sentence has been imposed under subsection (2) may petition the sentencing court for review of the sentence if the a professional person certifies that:
(a) the defendant no longer suffers from a mental disease or disorder;
(b) the defendant's mental disease or disorder no longer renders the defendant unable to appreciate the criminality of the defendant's conduct or to conform the defendant's conduct to the requirements of law;
(c) the defendant suffers from a mental disease or disorder or developmental disability but is not a danger to the defendant or others; or
(d) the defendant suffers from a mental disease or disorder that makes the defendant a danger to the defendant or others, but:
(i) there is no treatment available for the mental disease or disorder;
(ii) the defendant refuses to cooperate with treatment; or
(iii) the defendant will would no longer benefit from active inpatient treatment for the mental disease or disorder.
(4) Upon an appeal pursuant to [section 2] by a defendant whose sentence has been imposed under subsection (2), the sentencing court shall consider:
(a) whether the department's decision to transfer the defendant to a correctional facility followed the process described in [section 2]; and
(b) whether the defendant's placement in a correctional facility best BETTER serves the defendant's custody, care, and treatment needs.
(4)(5) The sentencing court may make any order not inconsistent with its original sentencing authority, except that the length of confinement or supervision must be equal to that of the original sentence. The A professional person shall review the defendant's status each year."
NEW SECTION. Section 2. Process to transfer person from mental health, residential, or developmental disabilities facility to correctional facility. (1) Except as provided in subsection (4), before transferring a person sentenced to the custody of the director of the department pursuant to 46-14-312(2) to a correctional facility or program as defined in 50-46-302, the department shall:
(a) provide the person with at least 30 days' notice of the date, time, and location of a hearing regarding the proposed transfer and all evidence relied on to establish that a correctional facility would better serve the person's custody, care, and treatment needs;
(b) provide the person with an opportunity to be heard in person, to present testimony of witnesses, and to confront and cross-examine witnesses, unless good cause is shown by the department for prohibiting the presentation, confrontation, or cross-examination;
(c) provide the person with a hearing presided over by an administrative law judge employed by the department to determine whether the department has proven that a correctional facility would better serve the person's custody, care, and treatment needs; AND
(d) if the person is financially unable to furnish legal counsel, make legal counsel available to the person. The counsel may not be an advocate from the board REQUEST THE SENTENCING COURT TO APPOINT A PUBLIC DEFENDER AS PROVIDED IN TITLE 47.
(e) provide the person with a written statement from the independent examiner containing the examiner's recommendation and rationale for the recommendation as well as any evidence relied on to establish the recommendation; and
(f) provide the person with a written statement documenting the department director's acceptance or denial of the independent examiner's recommendation, including the rationale for the director's decision.
(2) If available, the professional person who determined during the sentencing phase of the underlying conviction that the person sentenced to the custody of the director of the department pursuant to 46-14-312(2) suffered from a mental disease or defect or developmental disability as described in 46-14-311 shall testify at the hearing. If the professional person is unavailable, another professional person designated by the department may be substituted provided that the designated professional person is not an employee of the department. A professional person who testifies at the hearing shall meet with the person sentenced to the custody of the director to conduct an in-person evaluation prior to the hearing. THE PROVISIONS OF THIS SUBSECTION DO NOT PREVENT THE DEPARTMENT FROM CALLING ITS OWN EMPLOYEES AS WITNESSES.
(3) A person sentenced to the custody of the director of the department pursuant to 46-14-312(2) may appeal a decision made by the director to transfer the person to a correctional facility pursuant to the appeal procedures currently in place for appeals from hearing decisions by administrative law judges employed by the department.
(4) (a) If exigent circumstances require the immediate transfer of a person sentenced to the custody of the director of the department pursuant to 46-14-312(2) to a correctional facility, the department may transfer the person without first following the process established in subsection (1). The transfer is an interim placement and may not last longer than 20 days.
(b) If a transfer made pursuant to subsection (4)(a) lasts longer than 20 days, the department shall provide the person with a hearing under the provisions of subsection (1) within 30 days after the transfer.
(c) During an interim placement in a correctional facility, professional persons employed by the department shall provide the person with continuity of care, including medications, housing, and a minimum of one in-person interview each week.
NEW SECTION. Section 3. Mental health treatment for person transferred to correctional facility -- procedures for return to mental health, residential, or developmental disabilities facility. (1) (a) Except as provided in subsection (1)(b), if a person sentenced to the custody of the director of the department of public health and human services pursuant to 46-14-312(2) is transferred to a correctional facility under the provisions of [section 2], a professional person employed by the department of public health and human services shall meet with the person every 6 months.
(b) If a person is housed in locked housing or the infirmary of a correctional facility, the professional person shall meet with the person on a monthly basis.
(c) The department of corrections shall inform the professional person of any changes to the person's diagnosis, medications, or housing.
(2) (a) If a THE professional person employed by the department of public health and human services determines that the placement in a correctional facility of a person sentenced to the custody of the director of the department of public health and human services pursuant to 46-14-312(2) is not best meeting the person's custody, care, and treatment needs, the department of public health and human services shall transfer the person back to a mental health, residential, or developmental disabilities facility within 10 days after receiving written notice of the determination THE PROFESSIONAL PERSON SHALL NOTIFY THE DIRECTOR OF THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES. THE DIRECTOR SHALL REVIEW THE REASONS FOR THE RECOMMENDATION BY THE PROFESSIONAL PERSON AND DETERMINE WITHIN 20 DAYS WHETHER A TRANSFER IS WARRANTED.
(b) (i) If a mental health professional employed by the department of corrections or a correctional officer employed by the department of corrections determines that the placement in a correctional facility of a person sentenced to the custody of the director of the department of public health and human services pursuant to 46-14-312(2) is not best meeting the person's custody, care, and treatment needs, the individual shall notify the warden and the superintendent of the MONTANA state hospital. The warden and the superintendent shall review the reasons for the recommendation by the mental health professional or correctional officer and determine within 20 days whether a transfer is warranted.
(ii) The warden and the superintendent shall provide the director of the department of public health and human services and the person sentenced to the director's custody with a written notification of their determination and the reasons for the determination.
(iii) If the warden and the superintendent recommend a transfer from the correctional facility, the department of public health and human services shall transfer the person back to a mental health, residential, or developmental disabilities facility within 10 days after receiving written notice from the warden and the superintendent of the determination.
(3) If exigent circumstances require the immediate transfer of a person sentenced to the custody of the director of the department of public health and human services from a correctional facility to the MONTANA state hospital, the department of corrections may transfer the person without first following the process established in subsection (2)(b). The transfer is an interim placement and may last no longer than 20 days unless the department of public health and human services determines that the person's custody, care, and treatment needs are best served at the state hospital A MENTAL HEALTH, RESIDENTIAL, OR DEVELOPMENTAL DISABILITIES FACILITY.
(4) A person sentenced to the custody of the director of the department of public health and human services pursuant to 46-14-312(2) remains under the authority of the director of the department of public health and human services regardless of the type of facility in which the person is placed.
NEW SECTION. SECTION 4. DEFINITIONS. AS USED IN [SECTIONS 2 THROUGH 4], THE FOLLOWING DEFINITIONS APPLY:
(1) "CORRECTIONAL FACILITY OR PROGRAM" MEANS A FACILITY OR PROGRAM THAT IS DESCRIBED IN 53-1-202 AND TO WHICH AN INDIVIDUAL MAY BE ORDERED BY ANY COURT OF COMPETENT JURISDICTION.
(2) "DEPARTMENT" MEANS THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES PROVIDED FOR IN 2-15-2201.
(3) "DEVELOPMENTAL DISABILITIES FACILITY" HAS THE MEANING PROVIDED IN 53-20-202.
(4) "DIRECTOR" MEANS THE DIRECTOR OF THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES.
(5) "MENTAL HEALTH FACILITY" HAS THE MEANING PROVIDED IN 53-21-102.
(6) "MENTAL HEALTH PROFESSIONAL" HAS THE MEANING PROVIDED IN 53-21-102.
(7) "PROFESSIONAL PERSON" HAS THE MEANING PROVIDED IN 53-21-102.
(8) "RESIDENTIAL FACILITY" HAS THE MEANING PROVIDED IN 53-20-102.
SECTION 5. SECTION 47-1-104, MCA, IS AMENDED TO READ:
"47-1-104. Statewide system -- structure and scope of services -- assignment of counsel at public expense. (1) There is a statewide public defender system, which is required to deliver public defender services in all courts in this state. The system is supervised by the commission and administered by the office.
(2) The commission shall approve a strategic plan for service delivery and divide the state into not more than 11 public defender regions. The commission may establish a regional office to provide public defender services in each region, as provided in 47-1-215, establish a contracted services program to provide services in the region, or utilize other service delivery methods as appropriate and consistent with the purposes described in 47-1-102.
(3) When a court orders the office or the office of appellate defender to assign counsel, the appropriate office shall immediately assign a public defender qualified to provide the required services. The commission shall establish protocols to ensure that the offices make appropriate assignments in a timely manner.
(4) A court may order an office to assign counsel under this chapter in the following cases:
(a) in cases in which a person is entitled to assistance of counsel at public expense because of financial inability to retain private counsel, subject to a determination of indigence pursuant to 47-1-111, as follows:
(i) for a person charged with a felony or charged with a misdemeanor for which there is a possibility of incarceration, as provided in 46-8-101;
(ii) for a party in a proceeding to determine parentage under the Uniform Parentage Act, as provided in 40-6-119;
(iii) for a parent, guardian, or other person with physical or legal custody of a child or youth in any removal, placement, or termination proceeding pursuant to 41-3-422 and as required under the federal Indian Child Welfare Act, as provided in 41-3-425;
(iv) for an applicant for sentence review pursuant to Title 46, chapter 18, part 9;
(v) for a petitioner in a proceeding for postconviction relief, as provided in 46-21-201;
(vi) for a petitioner in a habeas corpus proceeding pursuant to Title 46, chapter 22;
(vii) for a parent or guardian in a proceeding for the involuntary commitment of a developmentally disabled person to a residential facility, as provided in 53-20-112;
(viii) for a respondent in a proceeding for involuntary commitment for a mental disorder, as provided in 53-21-116;
(ix) for a respondent in a proceeding for the involuntary commitment of a person for alcoholism, as provided in 53-24-302; and
(x) for a witness in a criminal grand jury proceeding, as provided in 46-4-304.; and
(xi) for a person entitled to a transfer hearing as provided in [section 2];
(b) in cases in which a person is entitled by law to the assistance of counsel at public expense regardless of the person's financial ability to retain private counsel, as follows:
(i) as provided for in 41-3-425;
(ii) for a youth in a proceeding under the Montana Youth Court Act alleging a youth is delinquent or in need of intervention, as provided in 41-5-1413, and in a prosecution under the Extended Jurisdiction Prosecution Act, as provided in 41-5-1607;
(iii) for a juvenile entitled to assigned counsel in a proceeding under the Interstate Compact on Juveniles, as provided in 41-6-101;
(iv) for a minor who petitions for a waiver of parental consent requirements under the Parental Consent for Abortion Act of 2013, as provided in 50-20-509;
(v) for a respondent in a proceeding for the involuntary commitment of a developmentally disabled person to a residential facility, as provided in 53-20-112;
(vi) for a minor voluntarily committed to a mental health facility, as provided in 53-21-112;
(vii) for a person who is the subject of a petition for the appointment of a guardian or conservator in a proceeding under the provisions of the Uniform Probate Code in Title 72, chapter 5;
(viii) for a ward when the ward's guardian has filed a petition to require medical treatment for a mental disorder of the ward, as provided in 72-5-322; and
(c) for an eligible appellant in an appeal of a proceeding listed in this subsection (4).
(5) (a) Except as provided in subsection (5)(b), a public defender may not be assigned to act as a court-appointed special advocate or guardian ad litem in a proceeding under the Montana Youth Court Act, Title 41, chapter 5, or in an abuse and neglect proceeding under Title 41, chapter 3.
(b) A private attorney who is contracted with under the provisions of 47-1-216 to provide public defender services under this chapter may be appointed as a court-appointed special advocate or guardian ad litem in a proceeding described in subsection (5)(a) if the appointment is separate from the attorney's service for the statewide public defender system and does not result in a conflict of interest."
NEW SECTION. SECTION 6. IMPLEMENTATION. THE DEPARTMENT SHALL IMPLEMENT [THIS ACT] WITHIN EXISTING RESOURCES.
NEW SECTION. Section 7. Codification instruction. [Sections 2 and 3 THROUGH 4] are intended to be codified as an integral part of Title 53, chapter 21, part 1 TITLE 46, CHAPTER 14, and the provisions of Title 53, chapter 21, part 1 TITLE 46, CHAPTER 14, apply to [sections 2 and 3 THROUGH 4].
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