1|ENGROSSED SENATE |
|BILL NO. 497 By: Weaver of the Senate |
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| and |
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| Turner of the House |
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6| An Act relating to criminal procedure; amending 22 |
| O.S. 2021, Section 1161, which relates to acts |
7| committed by persons with mental illness or mental |
| defect; requiring Forensic Review Board to provide |
8| certain notice to district attorney; updating |
| statutory language; and providing an effective date. |
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11|BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA: |
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12| SECTION 1. AMENDATORY 22 O.S. 2021, Section 1161, is |
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13|amended to read as follows: |
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14| Section 1161. A. 1. An act committed by a person in a state |
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15|of mental illness or mental defect shall be adjudicated as guilty |
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16|with mental defect or as not guilty by reason of mental illness. |
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17| 2. If a person is found guilty with mental defect or enters a |
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18|plea of guilty with mental defect which is accepted by the court, |
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19|the court at the time of sentencing shall impose any sentence that |
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20|could be imposed by law upon a person who is convicted of the same |
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21|offense, and the person shall serve the sentence in custody of a |
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22|county jail or the Oklahoma Department of Corrections. |
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23| 3. If a person who is found guilty with mental defect is placed |
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24|on probation under the jurisdiction of the sentencing court as |
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1|provided by law, the court shall immediately issue an order for the | | | 2|person to be examined by the Department of Mental Health and | | | 3|Substance Abuse Services. The time and place of such examination | | | 4|shall be determined by the Department. Within forty-five (45) days, | | | 5|the Department shall provide to the court a recommendation of | | | 6|treatment for the person, which shall be made a condition of | | | 7|probation. Reports as specified by the trial judge shall be filed | | | 8|with the probation officer and the sentencing court. Failure to | | | 9|continue treatment, except by agreement with the treating agency and | | | 10|the sentencing court, is grounds for revocation of probation. | | | 11|Treatment shall be provided by an agency of the Department or, with | | | 12|the approval of the sentencing court and at the expense of the | | | 13|person, by private agencies, private physicians or other mental | | | 14|health personnel. A psychiatric report shall be filed with the | | | 15|probation officer and the sentencing court every six (6) months | | | 16|during the period of probation. | | | 17| 4. When in any criminal action by indictment or information, | | | 18|the defense of mental illness is raised, but the defendant is not | | | 19|acquitted on the ground that the defendant was mentally ill at the | | | 20|time of the commission of the crime charged, an issue concerning | | | 21|such defense may be raised on appeal. If the appellate court finds | | | 22|relief is required, the appellate court shall not have authority to | | | 23|modify the judgment or sentence,but will only have the authority to | | | 24| | | | Page 2 ___________________________________________________________________________
1|order a new trial or order resentencing without recommendations to |
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2|sentencing. |
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3| 5. When in any criminal action by indictment or information the |
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4|defense of mental illness is interposed either singly or in |
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5|conjunction with some other defense, the jury shall state in the |
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6|verdict, if it is one of acquittal, whether or not the defendant is |
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7|acquitted on the ground of mental illness. When the defendant is |
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8|acquitted on the ground that the defendant was mentally ill at the |
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9|time of the commission of the crime charged, the person shall not be |
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10|discharged from custody until the court has made a determination |
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11|that the person is not dangerous to the public peace and safety and |
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12|is a person requiring treatment. |
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13| B. 1. To assist the court in its determination, the court |
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14|shall immediately issue an order for the person to be examined by |
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15|the Department of Mental Health and Substance Abuse Services at a |
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16|facility the Department has designated to examine and treat forensic |
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17|individuals. Upon the issuance of the order, the sheriff shall |
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18|deliver the person to the designated facility. |
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19| 2. Within forty-five (45) days of the court entering such an |
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20|order, a hearing shall be conducted by the court to ascertain |
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21|whether the person is dangerous to the public peace or safety |
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22|because the person is a person requiring treatment or, if not, is in |
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23|need of continued supervision as a result of unresolved symptoms of |
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24|mental illness or a history of treatment noncompliance. During the |
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1|required period of hospitalization, the Department of Mental Health |
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2|and Substance Abuse Services shall have the person examined by two |
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3|qualified psychiatrists or one such psychiatrist and one qualified |
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4|clinical psychologist whose training and experience enable the |
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5|professional to form expert opinions regarding mental illness, |
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6|competency, dangerousness and criminal responsibility. |
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7| C. 1. Each examiner shall, within thirty-five (35) days of |
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8|hospitalization, individually prepare and submit to the court, the |
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9|district attorney and the trial counsel of the person a report of |
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10|the psychiatric examination findings of the person and an evaluation |
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11|concerning whether the person is dangerous to the public peace or |
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12|safety. |
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13| 2. If the court is dissatisfied with the reports or if a |
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14|disagreement on the issue of mental illness and dangerousness exists |
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15|between the two examiners, the court may designate one or more |
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16|additional examiners and have them submit their findings and |
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17|evaluations as specified in paragraph 1 of this subsection. |
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18| 3. a. Within ten (10) days after the reports are filed, the |
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19| court must conduct a hearing to determine the present |
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20| condition of the person as to the issue of whether: |
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21| (1) the person is dangerous to the public peace or |
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22| safety because the person is a person requiring |
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23| treatment, or |
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1| (2) if not believed to be dangerous to the public |
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2| peace or safety, the person is in need of |
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3| continued supervision as a result of unresolved |
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4| symptoms of mental illness or a history of |
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5| treatment noncompliance. |
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6| b. The district attorney must establish the foregoing by |
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7| a preponderance of the evidence. At this hearing the |
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8| person shall have the assistance of counsel and may |
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9| present independent evidence. |
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10| D. 1. If the court finds that the person is not dangerous to |
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11|the public peace or safety because the person is a person requiring |
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12|treatment and is not in need of continued supervision as a result of |
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13|unresolved symptoms of mental illness or a history of treatment |
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14|noncompliance, it shall immediately discharge the person from |
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15|hospitalization. |
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16| 2. If the court finds that the person is dangerous to the |
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17|public peace and safety, it shall commit the person to the custody |
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18|of the Department of Mental Health and Substance Abuse Services. |
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19|The person shall then be subject to discharge pursuant to the |
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20|procedure set forth in this section. |
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21| a. During the period of hospitalization, the Department |
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22| of Mental Health and Substance Abuse Services may |
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23| administer or cause to be administered to the person |
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1| such psychiatric, medical or other therapeutic |
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2| treatment as in its judgment should be administered. |
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3| b. The person shall be subject to discharge or |
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4| conditional release pursuant to the procedures set |
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5| forth in this section. |
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6| E. If at any time the court finds the person is not dangerous |
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7|to the public peace or safety because the person is a person |
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8|requiring treatment, but is in need of continued supervision as a |
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9|result of unresolved symptoms of mental illness or a history of |
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10|treatment noncompliance, the court may: |
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11| 1. Discharge the person pursuant to the procedure set forth in |
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12|this section; |
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13| 2. Discharge the person, and upon the motion of the court or |
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14|the district attorney commence civil involuntary commitment |
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15|proceedings against the person pursuant to the provisions of Title |
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16|43A of the Oklahoma Statutes; or |
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17| 3. Order conditional release, as set forth in subsection F of |
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18|this section. |
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19| F. There is hereby created a Forensic Review Board to be |
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20|composed of seven (7) members appointed by the Governor with the |
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21|advice and consent of the Senate. The Board members shall serve for |
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22|a term of five (5) years except that for members first appointed to |
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23|the Board: one shall serve for a term ending December 31, 2008, two |
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24|shall serve for a term ending December 31, 2009, two shall serve a |
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1|term ending December 31, 2010, and two shall serve for a term ending |
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2|December 31, 2011. |
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3| 1. The Board shall be composed of: |
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4| a. four licensed mental health professionals with |
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5| experience in treating mental illness, at least one of |
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6| whom is licensed as a Doctor of Medicine, a Doctor of |
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7| Osteopathy, or a licensed clinical psychologist and |
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8| shall be appointed from a list of seven names |
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9| submitted to the Governor by the Department of Mental |
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10| Health and Substance Abuse Services, |
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11| b. one member who shall be an attorney licensed to |
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12| practice in this state and shall be appointed from a |
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13| list of not less than three names submitted to the |
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14| Governor by the Board of Governors of the Oklahoma Bar |
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15| Association, |
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16| c. one member who shall be a retired judge licensed to |
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17| practice in this state and shall be appointed from a |
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18| list of not less than three names submitted to the |
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19| Governor by the Judicial Nominating Committee, and |
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20| d. one at-large member. |
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21|The attorney and retired judge members of the Board shall be |
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22|prohibited from representing in the courts of this state persons |
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23|charged with felony offenses while serving on the Board. |
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1| 2. The Board shall meet as necessary to determine which |
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2|individuals confined with the Department of Mental Health and |
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3|Substance Abuse Services are eligible for therapeutic visits, |
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4|conditional release or discharge and whether the Board wishes to |
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5|make such a recommendation to the court of the county where the |
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6|individual was found not guilty by reason of insanity or not guilty |
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7|by reason of mental illness for those persons adjudicated as such |
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8|upon or after November 1, 2016. |
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9| a. Forensic Review Board meetings shall not be considered |
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10| subject to the Oklahoma Open Meeting Act and are not |
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11| open to the public. Other than the Forensic Review |
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12| Board members, only the following individuals shall be |
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13| permitted to attend Board meetings: |
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14| (1) the individual the Board is considering for |
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15| therapeutic visits, conditional release or |
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16| discharge, his or her treatment advocate, and |
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17| members of his or her treatment team, |
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18| (2) the Commissioner of Mental Health and Substance |
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19| Abuse Services or designee, |
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20| (3) the Advocate General for the Department of Mental |
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21| Health and Substance Abuse Services or designee, |
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22| (4) the General Counsel for the Department of Mental |
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23| Health and Substance Abuse Services or designee, |
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24| and |
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1| (5) any other persons the Board and Commissioner of | | | 2| Mental Health and Substance Abuse Services wish | | | 3| to be present. | | | 4| b. The Department of Mental Health and Substance Abuse | | | 5| Services shall provide administrative staff to the | | | 6| Board to take minutes of meetings and prepare | | | 7| necessary documents and correspondence for the Board | | | 8| to comply with its duties as set forth in this | | | 9| section. The Department of Mental Health and | | | 10| Substance Abuse Services shall also transport the | | | 11| individuals being reviewed to and from the Board | | | 12| meeting site. | | | 13| c. The Board shall provide notice to the district | | | 14| attorney of the county where the individual was found | | | 15| not guilty by reason of mental illness at least | | | 16| forty-five (45) days before meeting to determine | | | 17| eligibility for therapeutic visits, conditional | | | 18| release, or discharge. | | | 19| d. The Board shall promulgate rules concerning the | | | 20| granting and structure of therapeutic visits, | | | 21| conditional releases and discharge. | | | 22|d.e. For purposes of this subsection, "therapeutic visit" | | | 23| means a scheduled time period off campus which | | | 24| | | | Page 9 ___________________________________________________________________________
1| provides for progressive tests of the ability of the |
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2| consumer to maintain and demonstrate coping skills. |
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3| 3. The Forensic Review Board shall submit any recommendation |
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4|for therapeutic visit, conditional release or discharge to the court |
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5|and district attorney of the county where the person was found not |
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6|guilty by reason of mental illness, the trial counsel of the person, |
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7|the Department of Mental Health and Substance Abuse Services and the |
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8|person at least fourteen (14) days prior to the scheduled visit. |
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9| a. The district attorney may file an objection to a |
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10| recommendation for a therapeutic visit within ten (10) |
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11| days of receipt of the notice. |
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12| b. If an objection is filed, the therapeutic visit is |
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13| stayed until a hearing is held. The court shall hold |
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14| a hearing not less than ten (10) days following an |
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15| objection to determine whether the therapeutic visit |
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16| is necessary for treatment, and if necessary, the |
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17| nature and extent of the visit. |
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18| 4. During the period of hospitalization, the Department of |
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19|Mental Health and Substance Abuse Services shall submit an annual |
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20|report on the status of the person to the court, the district |
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21|attorney and the patient advocate general of the Department of |
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22|Mental Health and Substance Abuse Services. |
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23| G. Upon motion by the district attorney or upon a |
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24|recommendation for conditional release or discharge by the Forensic |
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1|Review Board, the court shall conduct a hearing to ascertain if the |
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2|person is dangerous and a person requiring treatment. This hearing |
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3|shall be conducted under the same procedure as the first hearing and |
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4|must occur not less than ten (10) days following the motion or |
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5|request by the Forensic Review Board. |
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6| 1. If the court determines that the person continues to be |
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7|dangerous to the public peace and safety because the person is a |
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8|person requiring treatment, it shall order the return of the person |
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9|to the hospital for additional treatment. |
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10| 2. If the court determines that the person is not dangerous but |
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11|subject to certain conditions, the court may conditionally release |
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12|the person subject to the following: |
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13| a. the Forensic Review Board has made a recommendation |
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14| for conditional release, including a written plan for |
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15| outpatient treatment and a list of recommendations for |
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16| the court to place as conditions on the release, |
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17| b. in its order of conditional release, the court shall |
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18| specify conditions of release and shall direct the |
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19| appropriate agencies or persons to submit annual |
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20| reports regarding the compliance of the person with |
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21| the conditions of release and progress in treatment, |
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22| c. the person must agree, in writing, that during the |
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23| period the person is granted conditional release and |
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24| is subject to the provisions thereof, there shall be |
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1| free transmission of all pertinent information, |
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2| including clinical information regarding the person, |
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3| among the Department of Mental Health and Substance |
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4| Abuse Services, the appropriate community mental |
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5| health centers and the appropriate district attorneys, |
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6| law enforcement and court personnel, |
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7| d. the order of the court placing the person on |
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8| conditional release shall include notice that the |
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9| conditional release of the person may be revoked upon |
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10| good cause. The person placed on conditional release |
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11| shall remain under the supervision of the Department |
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12| of Mental Health and Substance Abuse Services until |
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13| the committing court enters a final discharge order. |
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14| The Department of Mental Health and Substance Abuse |
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15| Services shall assess the person placed on conditional |
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16| release annually and shall have the authority to |
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17| recommend discharge of the person to the Board, and |
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18| e. any agency or individual involved in providing |
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19| treatment with regard to the conditional release plan |
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20| of the person may prepare and file an affidavit under |
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21| oath if the agency or individual believes that the |
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22| person has failed to comply with the conditions of |
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23| release or that such person has progressed to the |
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24| point that inpatient care is appropriate. |
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1| (1) Any peace officer who receives such an affidavit |
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2| shall take the person into protective custody and |
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3| return the person to the forensic unit of the |
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4| state hospital. |
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5| (2) A hearing shall be conducted within three (3) |
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6| days, excluding holidays and weekends, after the |
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7| person is returned to the forensic unit of the |
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8| state hospital to determine if the person has |
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9| violated the conditions of release, or if |
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10| full-time hospitalization is the least |
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11| restrictive alternative consistent with the needs |
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12| of the person and the need for public safety. |
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13| Notice of the hearing shall be issued, at least |
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14| twenty-four (24) hours before the hearing, to the |
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15| hospital superintendent, the person, trial |
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16| counsel for the person, and the patient advocate |
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17| general of the Department of Mental Health and |
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18| Substance Abuse Services. If the person requires |
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19| hospitalization because of a violation of the |
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20| conditions of release or because of progression |
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21| to the point that inpatient care is appropriate, |
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22| the court may then modify the conditions of |
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23| release. |
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1| 3. If the court determines that the person is not dangerous to |
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2|the public peace or safety because the person is not a person |
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3|requiring treatment, it shall order that the person be discharged |
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4|from the custody of the Department of Mental Health and Substance |
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5|Abuse Services. |
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6| H. As used in this section: |
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7| 1. "Antisocial personality disorder" means antisocial |
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8|personality disorder as defined by the Diagnostic and Statistical |
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9|Manual of Mental Disorders, 5th Edition (DSM-5), or subsequent |
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10|editions; |
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11| 2. "Court" or "sentencing court" means the court sitting in the |
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12|county where the person has been found to be not guilty by reason of |
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13|mental illness or guilty with mental defect; |
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14| 3. "Dangerous" means a person who because of mental illness |
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15|poses a substantial risk of physical harm in the near future to |
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16|another person or persons. Dangerousness shall be determined by |
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17|such factors as whether the person has placed another person or |
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18|persons in a reasonable fear of violent behavior, and medication and |
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19|treatment compliance; |
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20| 4. "Guilty with mental defect" means the person committed the |
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21|act and was either unable to understand the nature and consequences |
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22|of his or her actions or was unable to differentiate right from |
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23|wrong, and has been diagnosed with antisocial personality disorder |
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1|which substantially contributed to the act for which the person has |
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2|been charged; |
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3| 5. "Mental defect" means the person has been diagnosed with |
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4|antisocial personality disorder which substantially contributed to |
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5|the act for which the person has been charged; |
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6| 6. "Mental illness" means a substantial disorder of thought, |
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7|mood, perception, psychological orientation or memory that |
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8|significantly impairs judgment, behavior, capacity to recognize |
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9|reality or ability to meet the ordinary demands of life; |
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10| 7. "Not guilty by reason of mental illness" means the person |
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11|committed the act while mentally ill and was either unable to |
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12|understand the nature and consequences of his or her actions or was |
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13|unable to differentiate right from wrong, and has not been diagnosed |
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14|with antisocial personality disorder which substantially contributed |
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15|to the act for which the person has been charged; and |
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16| 8. a. "Person requiring treatment" means a person who |
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17| because of mental illness: |
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18| (1) poses a substantial risk of physical harm to |
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19| self as manifested by evidence or serious threats |
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20| of or attempts at suicide or other significant |
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21| self-inflicted bodily harm, |
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22| (2) poses a substantial risk of physical harm to |
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23| another person or persons as manifested by |
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1| evidence of violent behavior directed toward |
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2| another person or persons, |
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3| (3) has placed another person or persons in |
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4| reasonable fear of serious physical harm or |
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5| violent behavior directed toward such person or |
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6| persons as manifested by serious and immediate |
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7| threats, |
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8| (4) is in a condition of severe deterioration such |
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9| that, without immediate intervention, there |
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10| exists a substantial risk that severe impairment |
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11| or injury will result to the person, or |
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12| (5) poses a substantial risk of serious physical |
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13| injury to self or death as manifested by evidence |
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14| that the person is unable to provide for and is |
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15| not providing for his or her basic physical |
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16| needs. |
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17| b. The mental health or substance abuse history of the |
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18| person may be used as part of the evidence to |
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19| determine whether the person is a person requiring |
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20| treatment. The mental health or substance abuse |
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21| history of the person shall not be the sole basis for |
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22| this determination. |
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1| c. Unless a person also meets the criteria established |
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2| in subparagraph a of this paragraph, "person requiring |
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3| treatment" shall not mean: |
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4| (1) a person whose mental processes have been |
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5| weakened or impaired by reason of advanced years, |
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6| dementia or Alzheimer's disease, |
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7| (2) a person with intellectual or developmental |
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8| disability as defined in Title 10 of the Oklahoma |
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9| Statutes, |
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10| (3) a person with seizure disorder, or |
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11| (4) a person with a traumatic brain injury. |
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12| I. Proceedings hereunder may be held in conformance with the |
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13|provisions of Section 3006 of Title 20 of the Oklahoma Statutes for |
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14|allowable use of videoconferencing. |
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15| SECTION 2. This act shall become effective November 1, 2025. |
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16| Passed the Senate the 10th day of March, 2025. |
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| Presiding Officer of the Senate |
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20| Passed the House of Representatives the ____ day of __________, |
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21|2025. |
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22| |
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| Presiding Officer of the House |
24| of Representatives |
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