Judiciary committee reviews S.193 draft to create secured forensic treatment facility for certain defendants
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Summary
On Feb. 17 committee counsel walked members through a draft amendment to S.193 to establish a secured forensic treatment facility for people found incompetent to stand trial or found not guilty by reason of insanity for certain life-maximum offenses. Debate focused on admission criteria, procedural timing (40-day hearing; six‑month reviews), burden for release, involuntary medication, DOC vs. DMH oversight, record access, and whether older misdemeanor incompetency findings should be dismissed with or without prejudice.
Legislative counsel led a line-by-line walkthrough on Feb. 17 of a proposed committee "strike-all" amendment to S.193 that would require the state to establish a locked, secure forensic facility to provide "evaluation, treatment and care" to two classes of criminal defendants: those found incompetent to stand trial and those found not guilty by reason of insanity (NGRI) for offenses carrying life‑maximum penalties.
"The idea is that the person can't just be housed indefinitely without some treatment of the underlying condition," counsel said while explaining edits that reorder the draft to emphasize treatment and clinical evaluation. Counsel directed members to the definition of "forensic facility" (page 9) and said several passages were reorganized to foreground therapeutic obligations.
Under the draft, people admitted under the incompetency track would be evaluated initially and then at least every six months or sooner if the clinical services director deems the person likely competent. At the request of a party or as part of a periodic review, the court may order a forensic risk assessment to inform decisions about competency and public safety.
For NGRI acquittees the draft requires the court to hold an initial hearing within 40 days of transfer to the facility. At that hearing the bill, as written, shifts the burden to the person and requires them to "establish by clear and convincing evidence" that they are no longer suffering from mental illness and would not pose a substantial risk of bodily injury to another person; counsel told members this is a major policy decision and noted courts in other jurisdictions have varied on burden and standards. "Within that first 40 days... unless the person establishes by clear and convincing evidence," counsel said in describing the draft's threshold for release.
Members pressed operational questions about how the facility track interacts with existing criminal processes, including hold‑without‑bail (7553) hearings and who may request competency evaluations. Counsel said any party—or the court—may request evaluation while the criminal case is ongoing, but committee members asked staff to clarify sequencing so courts and parties will know whether bail/hold hearings proceed before, during or after competency restoration efforts.
Treatment requirements and involuntary medication also drew scrutiny. The draft includes a requirement that the commissioner provide "adequate care and individualized treatment" and sets procedures for involuntary medication that reference a constitutional standard and require specified approvals. One member warned this implicates Health & Welfare review and expressed concern about placing a treatment facility under Department of Corrections (DOC) administration.
"I still have pretty significant concerns with DOC being involved in something we're claiming is not a jail," a member said, urging stronger involvement from the Department of Mental Health or the Agency of Human Services. Another member asked that the bill explicitly require DOC to consult with the Department of Mental Health when establishing and operating the facility.
The draft also proposes a new mechanism to clear aged misdemeanor cases: where a person was found incompetent for a misdemeanor and the case is inactive for a period equal to or greater than the offense's maximum sentence, the court may dismiss the matter unless dismissal would be contrary to the interest of justice. Members debated whether dismissals should be with prejudice (preventing refiling) or without prejudice to preserve prosecutorial options in future related cases, with concerns raised about victims' access to notice and services.
Counsel flagged records and confidentiality provisions that exempt certain facility records from public disclosure while making them available to parties in the underlying criminal case. Members raised HIPAA and prosecutorial‑access questions; counsel said state‑law disclosure requirements can create exceptions to HIPAA and offered to provide legal research to the committee.
Staff summarized remaining decision points for mark up: whether the facility should be attached to a DOC jail, which agency should have primary responsibility (DOC, Department of Mental Health, or Agency of Human Services), whether the burden for release should be clear and convincing and on whom it should rest, when a 7553 hold hearing would occur relative to competency restoration, who may access treatment records, and whether misdemeanor dismissals should be with or without prejudice. Committee witnesses are scheduled later in the week to inform those decisions; no formal motions or votes were taken at the walkthrough and the meeting was adjourned.
Next steps: witnesses will appear this week and staff will return with proposed language and the requested list of life‑offense classifications before the committee considers formal markups.
