House Judiciary Committee advances draft S.193 amendment to create forensic facility, debates safeguards for competency cases

The House Judiciary Committee on April 16 reviewed draft 1.1 of S.193, a bill that would create a forensic facility and set procedures for defendants found incompetent to stand trial or found not guilty by reason of insanity (NGRI). Committee members, Legislative Counsel and outside advisers debated how frequently courts should re‑evaluate competency, when forensic risk assessments must be done, who must carry out assessments and how the statute should protect defendants’ constitutional rights.

Eric, counsel at the Office of Legislative Council, told the committee the amendment focuses mainly on competency provisions and is designed to make the statute “more straightforward and more defensible as far as … the constitution.” He said the draft keeps a six‑month re‑evaluation cycle for defendants found incompetent and creates a mechanism for any party to request a focused “restorability” evaluation to determine whether competency can be restored.

The draft instructs the court to order a forensic risk assessment and hold a hearing within 60 days if it finds a defendant is not restorable. At that hearing the state must prove by clear and convincing evidence that the person “suffers from a qualifying condition that upon the person's release would create substantial risk of bodily injury to another person.” If the state meets that burden the court may order continued commitment consistent with the forensic risk assessment; if not, the statute directs release on supervisory conditions.

Supporters framed the structure as an attempt to respect the U.S. Supreme Court’s holding in Jackson v. Indiana, which limits indefinite confinement of defendants found incompetent. Eric summarized that principle succinctly: “you can't hold someone indefinitely absent a finding of dangerousness.” The draft attempts to provide periodic judicial review and an “off‑ramp” so a person is not confined in perpetuity.

Legal reviewers raised drafting and process questions. Jared Bianke, who identified himself for the record, said the draft appears legally defensible on its face and suggested edits and clarifications, including copying existing victim‑notification language from the NGRI section into the competency section so victims may express views about placement and be considered at relevant hearings. Bianke also suggested the committee consider widening the public‑safety standard from only “bodily injury” to “bodily injury or other substantial interpersonal harm.”

Members pressed whether the bill should set a statutory maximum time for repeated restoration attempts (three or five years was mentioned). Counsel and one outside reviewer said courts may address some due‑process concerns case‑by‑case, but that 27 states have explicit statutory limits and the committee could add one if it chooses.

The committee also debated operational questions: whether witnesses may testify remotely, how frequently NGRI cases should be re‑evaluated, and whether parts of the hearing process should follow the probation‑violation model to permit reliable hearsay from treatment teams (avoiding the need to call every staff member). Jared said using a probation‑style approach or a focused hearsay carve‑out would permit the clinical director to summarize treatment‑team observations while preserving core due‑process protections.

Chief Superior Judge Zone flagged specific drafting gaps that require resolution before the statute is finalized. He said the text must identify the entity to which a person is remanded (for example, the commissioner of corrections or the commissioner of mental health), specify who will perform the forensic risk assessment, and make the hearing chronology explicit so evaluations clearly precede judicial findings. "We just don't remand someone to the facility. We remand someone to put them in the facility," he said, urging clearer language on responsibility and process.

Committee members also debated timing for the initial NGRI hearing. The Senate draft had a 48‑hour window; the amendment lengthened that to allow more time. Ian asked whether a 60‑day window for certain hearings could raise due‑process concerns; legal reviewers said they saw no facial constitutional problem with the timeline as drafted but flagged the importance of ensuring accused persons retain access to counsel and opportunity to be heard.

No formal votes were recorded in the session. Members said further edits are expected — to cross‑references, victim‑notification language and the technical drafting Jared and judges flagged — and additional witnesses will be scheduled for follow‑up sessions. The committee is expected to circulate revised language addressing which state official or agency is responsible for admissions, who conducts forensic risk assessments, and any statutory endpoints the committee chooses to adopt as part of ensuring the process provides constitutional safeguards and workable implementation.

Next procedural steps include drafting fixes to clarify chronological sequencing of evaluations and hearings, adding victim‑notification provisions where the committee prefers them, and identifying the state actor (commissioner/agency) responsible for carrying out admissions and monitoring. The chair said those items and additional witness input will be taken up in subsequent meetings.