SENATE BILL NO. 96 January 26, 1999, Introduced by Senator VAN REGENMORTER and referred to the Committee on Judiciary. A bill to amend 1974 PA 258, entitled "Mental health code," (MCL 330.1001 to 330.2106) by adding chapter 10A. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 CHAPTER 10A 2 SEC. 1060. AS USED IN THIS CHAPTER: 3 (A) "AGENCY" MEANS THE DEPARTMENT OF CORRECTIONS. 4 (B) "COURT" MEANS THE COURT IN THIS STATE THAT CONVICTED AN 5 INDIVIDUAL DESCRIBED IN SECTION 1063 OF THE VIOLENT OFFENSE. 6 (C) "MENTAL ABNORMALITY" MEANS A CONGENITAL OR ACQUIRED CON- 7 DITION THAT AFFECTS AN INDIVIDUAL'S EMOTIONAL OR VOLITIONAL 8 CAPACITY AND THAT PREDISPOSES THE INDIVIDUAL TO COMMIT VIOLENT 9 OFFENSES TO A DEGREE THAT RENDERS THE INDIVIDUAL A MENACE TO THE 10 HEALTH AND SAFETY OF OTHERS. 00039'99 DAM 2 1 (D) "PREDATORY ACT" MEANS 1 OR MORE ACTS DIRECTED TOWARD AN 2 INDIVIDUAL FOR THE PRIMARY PURPOSE OF CRIMINAL VICTIMIZATION. 3 (E) "VIOLENT OFFENSE" MEANS 1 OR MORE OF THE FOLLOWING: 4 (i) A VIOLATION OF SECTION 83 OF THE MICHIGAN PENAL CODE, 5 1931 PA 328, MCL 750.83, CONCERNING ASSAULT. 6 (ii) A VIOLATION OF SECTION 91, 157B(2), 316, OR 317 OF THE 7 MICHIGAN PENAL CODE, 1931 PA 328, MCL 750.91, 750.157B, 750.316, 8 AND 750.317, CONCERNING MURDER. 9 (iii) A VIOLATION OF SECTION 436(2) OF THE MICHIGAN PENAL 10 CODE, 1931 PA 328, MCL 750.436, CONCERNING POISONING. 11 (iv) A VIOLATION OF SECTION 520B OF THE MICHIGAN PENAL CODE, 12 1931 PA 328, MCL 750.520B, CONCERNING CRIMINAL SEXUAL CONDUCT. 13 (v) A FELONY UNDER FEDERAL LAW OR THE LAW OF ANOTHER STATE 14 SUBSTANTIALLY CORRESPONDING TO AN OFFENSE LISTED IN SUBPARAGRAPHS 15 (i) TO (iv). 16 (F) "VIOLENT PREDATOR" MEANS AN INDIVIDUAL WHO MEETS ALL OF 17 THE FOLLOWING: 18 (i) HAS BEEN CONVICTED OF A VIOLENT OFFENSE AND, IN ADDITION 19 TO THE CONVICTION FOR THE VIOLENT OFFENSE, HAS COMMITTED 2 OR 20 MORE MURDERS OR VOLUNTARY MANSLAUGHTERS THAT ARE SEPARATE FROM 21 AND DO NOT ARISE OUT OF THE INCIDENT OR INCIDENTS THAT WERE THE 22 BASIS FOR THE VIOLENT OFFENSE, AS EVIDENCED BY CERTIFIED COPIES 23 OF THE COURT RECORDS OF CONVICTIONS IN THIS STATE, ANOTHER STATE, 24 FEDERAL COURT, OR A FOREIGN COUNTRY. 25 (ii) SUFFERS FROM A MENTAL ABNORMALITY THAT MAKES THE INDI- 26 VIDUAL LIKELY TO ENGAGE IN FUTURE PREDATORY ACTS OF VIOLENCE. 00039'99 3 1 SEC. 1061. (1) THE LEGISLATURE FINDS THAT A SMALL BUT 2 EXTREMELY DANGEROUS GROUP OF VIOLENT PREDATORS EXISTS WHO DO NOT 3 HAVE A MENTAL ILLNESS THAT RENDERS THEM APPROPRIATE FOR THE 4 EXISTING CIVIL COMMITMENT PROCESS THAT IS DESIGNED TO PROVIDE 5 TREATMENT TO INDIVIDUALS WITH SERIOUS MENTAL ILLNESS. THE LEGIS- 6 LATURE ALSO FINDS THAT THE LIKELIHOOD OF A VIOLENT PREDATOR 7 ENGAGING IN REPEAT ACTS OF PREDATORY VIOLENCE IS HIGH. THE LEG- 8 ISLATURE ALSO FINDS THAT THE PROGNOSIS FOR CURING THIS SMALL 9 GROUP OF VIOLENT PREDATORS IS POOR, THAT THE TREATMENT NEEDS OF 10 THIS POPULATION ARE VERY LONG-TERM, AND THAT THE TREATMENT MODAL- 11 ITIES FOR THIS POPULATION ARE VERY DIFFERENT FROM THE TRADITIONAL 12 TREATMENT MODALITIES FOR INDIVIDUALS WHO ARE APPROPRIATE FOR COM- 13 MITMENT AND TREATMENT UNDER THIS CODE. 14 (2) OTHER THAN THE DEFINITION SECTIONS OF CHAPTER 1, THE 15 OTHER CHAPTERS OF THIS CODE DO NOT APPLY TO THIS CHAPTER AND THIS 16 CHAPTER DOES NOT APPLY TO THE OTHER CHAPTERS OF THIS CODE. 17 SEC. 1062. (1) IF THE AGENCY THAT HAS JURISDICTION OVER AN 18 INDIVIDUAL DESCRIBED IN SECTION 1063 DETERMINES THAT THE INDIVID- 19 UAL MAY BE A VIOLENT PREDATOR, THEN NOT LATER THAN 6 MONTHS 20 BEFORE THE ANTICIPATED DATE OF THE EXPIRATION OF THE INDIVIDUAL'S 21 MAXIMUM SENTENCE AND ANTICIPATED DATE OF RELEASE BY THE AGENCY, 22 THE AGENCY SHALL PROVIDE WRITTEN NOTIFICATION OF THE ANTICIPATED 23 DATE OF RELEASE TO THE ATTORNEY GENERAL AND TO EACH VICTIM WHO 24 HAS REQUESTED NOTIFICATION OF ANY CHANGE IN THE INDIVIDUAL'S 25 STATUS UNDER THE CRIME VICTIM'S RIGHTS ACT, 1985 PA 87, MCL 26 780.751 TO 780.834. 00039'99 4 1 (2) IF AN AGENCY OR AN EMPLOYEE OF THAT AGENCY IN GOOD FAITH 2 MAKES A DETERMINATION OR GIVES NOTICE IN COMPLIANCE WITH 3 SUBSECTION (1), THE AGENCY OR THE EMPLOYEE IS NOT LIABLE IN A 4 CIVIL ACTION FOR DAMAGES BASED ON THE DETERMINATION OR NOTICE. 5 SEC. 1063. THE ATTORNEY GENERAL MAY FILE WITH THE COURT A 6 PETITION ALLEGING THAT AN INDIVIDUAL IS A VIOLENT PREDATOR AND 7 STATING SUFFICIENT FACTS TO SUPPORT THE ALLEGATION, IF THE INDI- 8 VIDUAL WAS CONVICTED OF A VIOLENT OFFENSE ON OR AFTER JANUARY 1, 9 2001, AND HIS OR HER MAXIMUM SENTENCE IS ABOUT TO EXPIRE, OR HAS 10 EXPIRED, AND IN ADDITION TO THE CONVICTION FOR THE VIOLENT 11 OFFENSE THE INDIVIDUAL HAS COMMITTED 2 OR MORE MURDERS OR VOLUN- 12 TARY MANSLAUGHTERS THAT ARE SEPARATE FROM AND DO NOT ARISE OUT OF 13 THE INCIDENT OR INCIDENTS THAT WERE THE BASIS FOR THE VIOLENT 14 OFFENSE, AS EVIDENCED BY CERTIFIED COPIES OF THE COURT RECORDS OF 15 CONVICTIONS IN THIS STATE, ANOTHER STATE, FEDERAL COURT, OR A 16 FOREIGN COUNTRY. 17 SEC. 1064. UPON THE FILING OF A PETITION UNDER SECTION 18 1063, THE COURT SHALL DETERMINE WHETHER PROBABLE CAUSE EXISTS TO 19 BELIEVE THAT THE INDIVIDUAL NAMED IN THE PETITION IS A VIOLENT 20 PREDATOR. IF THE DETERMINATION IS MADE THAT SUCH PROBABLE CAUSE 21 EXISTS, THE COURT SHALL ORDER THAT THE INDIVIDUAL BE EVALUATED BY 22 THE CENTER FOR FORENSIC PSYCHIATRY TO DETERMINE WHETHER OR NOT 23 THE INDIVIDUAL IS A VIOLENT PREDATOR. THE AGENCY SHALL ACCEPT 24 THE INDIVIDUAL BACK AFTER THE COMPLETION OF THE EVALUATION. IN 25 NO EVENT SHALL THE INDIVIDUAL BE RELEASED FROM CONFINEMENT BEFORE 26 TRIAL. IF AN INDIVIDUAL'S MAXIMUM SENTENCE WOULD EXPIRE AND HE 27 OR SHE WOULD BE RELEASED BEFORE COMPLETION OF A TRIAL UNDER THIS 00039'99 5 1 CHAPTER, THE COURT SHALL ORDER THAT THE INDIVIDUAL BE CONFINED IN 2 A SECURE FACILITY. 3 SEC. 1065. (1) NOT MORE THAN 45 DAYS AFTER THE FILING OF A 4 PETITION UNDER SECTION 1063, THE COURT SHALL CONDUCT A TRIAL TO 5 DETERMINE WHETHER THE INDIVIDUAL IS A VIOLENT PREDATOR. THE 6 INDIVIDUAL, THE ATTORNEY GENERAL, OR THE COURT HAS THE RIGHT TO 7 DEMAND THAT THE TRIAL BE BEFORE A JURY. IF NO JURY DEMAND IS 8 MADE, THE TRIAL SHALL BE BEFORE THE COURT. 9 (2) AT ALL STAGES OF THE PROCEEDINGS UNDER THIS CHAPTER, AN 10 INDIVIDUAL SUBJECT TO THIS CHAPTER IS ENTITLED TO THE ASSISTANCE 11 OF COUNSEL. IF THE INDIVIDUAL IS INDIGENT, THE COURT SHALL 12 APPOINT COUNSEL TO ASSIST HIM OR HER. 13 (3) IF AN INDIVIDUAL IS SUBJECTED TO AN EXAMINATION UNDER 14 THIS CHAPTER, HE OR SHE MAY RETAIN AN EXPERT OR PROFESSIONAL 15 PERSON OF HIS OR HER CHOICE TO PERFORM AN EXAMINATION ON HIS OR 16 HER BEHALF. THE SELECTED EXPERT OR PROFESSIONAL PERSON MAY HAVE 17 REASONABLE ACCESS TO THE INDIVIDUAL FOR THE PURPOSE OF THE EXAMI- 18 NATION, AND TO ALL RELEVANT MEDICAL AND PSYCHOLOGICAL RECORDS AND 19 REPORTS. IF THE INDIVIDUAL IS INDIGENT AND SO REQUESTS, THE 20 COURT SHALL APPOINT A QUALIFIED EXPERT OR PROFESSIONAL PERSON TO 21 PERFORM AN EXAMINATION OR PARTICIPATE IN THE TRIAL ON THE 22 INDIVIDUAL'S BEHALF. 23 SEC. 1066. (1) IN A TRIAL CONDUCTED UNDER SECTION 1065, THE 24 COURT OR JURY SHALL DETERMINE WHETHER, BEYOND A REASONABLE DOUBT, 25 THE INDIVIDUAL IS A VIOLENT PREDATOR. 26 (2) IF THE COURT OR JURY DETERMINES IN A TRIAL CONDUCTED 27 UNDER SECTION 1065 THAT THE INDIVIDUAL IS A VIOLENT PREDATOR, THE 00039'99 6 1 INDIVIDUAL SHALL BE COMMITTED TO THE CUSTODY OF THE DEPARTMENT OF 2 COMMUNITY HEALTH IN A SECURE FACILITY FOR CONTROL AND TREATMENT 3 UNTIL SUCH TIME AS THE INDIVIDUAL'S MENTAL ABNORMALITY HAS SO 4 CHANGED THAT THE INDIVIDUAL IS SAFE TO BE DISCHARGED AND THE 5 INDIVIDUAL'S PETITION FOR DISCHARGE UNDER THIS CHAPTER IS GRANTED 6 BY THE COURT. THE CONTROL AND TREATMENT SHALL BE PROVIDED AT A 7 FACILITY MANAGED BY, OR UNDER CONTRACT TO, THE DEPARTMENT OF COM- 8 MUNITY HEALTH. THE FACILITY SHALL NOT BE LOCATED ON THE GROUNDS 9 OF A STATE PSYCHIATRIC HOSPITAL OR REGIONAL CENTER FOR DEVELOP- 10 MENTAL DISABILITIES UNLESS THE AGENCY AND THE DEPARTMENT OF COM- 11 MUNITY HEALTH CERTIFY THAT THE FACILITY IS SUFFICIENTLY APPROPRI- 12 ATE AND SECURE FOR THIS INDIVIDUAL. 13 (3) IF THE COURT OR JURY IN A TRIAL CONDUCTED UNDER SECTION 14 1065 IS NOT SATISFIED BEYOND A REASONABLE DOUBT THAT THE INDIVID- 15 UAL IS A VIOLENT PREDATOR, THE COURT SHALL ORDER THE INDIVIDUAL'S 16 RELEASE. 17 SEC. 1067. AN INDIVIDUAL COMMITTED UNDER THIS CHAPTER SHALL 18 BE EXAMINED AT LEAST ONCE EVERY 3 YEARS. THE INDIVIDUAL MAY 19 RETAIN OR, IF HE OR SHE IS INDIGENT AND SO REQUESTS, THE COURT 20 MAY APPOINT, A QUALIFIED EXPERT OR OTHER PROFESSIONAL PERSON TO 21 EXAMINE HIM OR HER. THE EXPERT OR PROFESSIONAL PERSON HAS ACCESS 22 TO ALL PERTINENT RECORDS CONCERNING THE INDIVIDUAL. THE DEPART- 23 MENT OF COMMUNITY HEALTH SHALL PROVIDE AN ANNUAL REPORT TO THE 24 COURT. 25 SEC. 1068. (1) IF THE DIRECTOR OF THE DEPARTMENT OF COMMU- 26 NITY HEALTH DETERMINES THAT THE INDIVIDUAL'S MENTAL ABNORMALITY 27 HAS CHANGED SO THAT THE INDIVIDUAL IS NOT LIKELY TO ENGAGE IN 00039'99 7 1 FUTURE PREDATORY ACTS OF VIOLENCE IF RELEASED, THE DIRECTOR OF 2 THE DEPARTMENT OF COMMUNITY HEALTH SHALL AUTHORIZE THE INDIVIDUAL 3 TO PETITION THE COURT FOR DISCHARGE. THE PETITION SHALL BE 4 SERVED UPON THE COURT AND THE ATTORNEY GENERAL. THE ATTORNEY 5 GENERAL SHALL NOTIFY EACH VICTIM WHO WAS REQUIRED TO BE NOTIFIED 6 BY THE AGENCY UNDER THE CRIME VICTIM'S RIGHTS ACT, 1985 PA 87, 7 MCL 780.751 TO 780.834. 8 (2) UPON RECEIPT OF A PETITION FOR DISCHARGE, THE COURT 9 SHALL ORDER A HEARING TO BE HELD WITHIN 45 DAYS OF THE RECEIPT. 10 THE ATTORNEY GENERAL SHALL REPRESENT THE STATE, AND HAS THE RIGHT 11 TO HAVE THE PETITIONER EXAMINED BY AN EXPERT OR PROFESSIONAL 12 PERSON OF HIS OR HER CHOICE. 13 (3) A HEARING UNDER THIS SECTION SHALL BE BEFORE A JURY IF 14 DEMANDED BY EITHER THE PETITIONER OR THE ATTORNEY GENERAL. THE 15 ATTORNEY GENERAL HAS THE BURDEN OF PROVING BEYOND A REASONABLE 16 DOUBT THAT THE PETITIONER'S MENTAL ABNORMALITY REMAINS SO THAT 17 THE PETITIONER IS NOT SAFE TO BE DISCHARGED AND THAT IF DIS- 18 CHARGED IS LIKELY TO COMMIT 1 OR MORE FUTURE PREDATORY ACTS OF 19 VIOLENCE. 20 SEC. 1069. (1) NOTWITHSTANDING SECTION 1068, A COMMITTED 21 INDIVIDUAL MAY PETITION THE COURT FOR DISCHARGE NOT MORE THAN 22 ONCE EVERY 12 MONTHS WITHOUT THE APPROVAL OF THE DIRECTOR OF THE 23 DEPARTMENT OF COMMUNITY HEALTH. THE DIRECTOR OF THE DEPARTMENT 24 OF COMMUNITY HEALTH SHALL PROVIDE THE COMMITTED INDIVIDUAL WITH 25 AN ANNUAL WRITTEN NOTICE OF THE INDIVIDUAL'S RIGHT TO PETITION 26 THE COURT FOR DISCHARGE WITHOUT THE DEPARTMENT DIRECTOR'S 27 APPROVAL. THE NOTICE SHALL CONTAIN A WAIVER OF RIGHTS. THE 00039'99 8 1 DIRECTOR OF THE DEPARTMENT OF COMMUNITY HEALTH SHALL FORWARD THE 2 NOTICE AND WAIVER FORM TO THE COURT WITH THE ANNUAL REPORT 3 REQUIRED UNDER SECTION 1067. 4 (2) IF A COMMITTED INDIVIDUAL PETITIONS FOR DISCHARGE UNDER 5 THIS SECTION, THE COURT SHALL SET A SHOW CAUSE HEARING TO DETER- 6 MINE WHETHER FACTS EXIST THAT WARRANT A HEARING ON WHETHER THE 7 INDIVIDUAL'S CONDITION HAS SO CHANGED THAT HE OR SHE IS SAFE TO 8 BE DISCHARGED. THE COMMITTED INDIVIDUAL HAS A RIGHT TO HAVE AN 9 ATTORNEY REPRESENT HIM OR HER AT THE SHOW CAUSE HEARING BUT IS 10 NOT ENTITLED TO BE PRESENT AT THE SHOW CAUSE HEARING. IF THE 11 COURT AT THE SHOW CAUSE HEARING DETERMINES THAT PROBABLE CAUSE 12 EXISTS TO BELIEVE THAT THE INDIVIDUAL'S MENTAL ABNORMALITY HAS SO 13 CHANGED THAT THE INDIVIDUAL IS SAFE TO BE DISCHARGED AND WILL NOT 14 ENGAGE IN FUTURE PREDATORY ACTS OF VIOLENCE IF DISCHARGED, THEN 15 THE COURT SHALL SET A HEARING ON THE ISSUE. SUBJECT TO 16 SECTION 1070, THE COMMITTED INDIVIDUAL IS ENTITLED TO BE PRESENT 17 AT THE HEARING AND TO HAVE THE BENEFIT OF ALL CONSTITUTIONAL PRO- 18 TECTIONS THAT WERE AFFORDED TO HIM OR HER AT THE INITIAL COMMIT- 19 MENT PROCEEDING. THE ATTORNEY GENERAL SHALL REPRESENT THE STATE 20 AND HAS THE RIGHT TO A JURY TRIAL AND TO HAVE THE COMMITTED INDI- 21 VIDUAL EVALUATED BY EXPERTS CHOSEN BY THE STATE. THE COMMITTED 22 INDIVIDUAL ALSO HAS THE RIGHT TO HAVE EXPERTS EVALUATE HIM OR HER 23 ON HIS OR HER BEHALF. THE COURT SHALL APPOINT AN EXPERT IF THE 24 INDIVIDUAL IS INDIGENT AND REQUESTS AN APPOINTMENT. THE ATTORNEY 25 GENERAL HAS THE BURDEN OF PROVING BEYOND A REASONABLE DOUBT THAT 26 THE COMMITTED INDIVIDUAL'S MENTAL ABNORMALITY HAS NOT CHANGED AND 27 THAT THE INDIVIDUAL IS NOT SAFE TO BE DISCHARGED AND IF 00039'99 9 1 DISCHARGED WILL ENGAGE IN 1 OR MORE FUTURE PREDATORY ACTS OF 2 VIOLENCE. 3 SEC. 1070. NOTHING IN THIS CHAPTER PROHIBITS AN INDIVIDUAL 4 FROM FILING A PETITION FOR DISCHARGE UNDER THIS CHAPTER. 5 PURSUANT TO SECTION 1069, IF AN INDIVIDUAL HAS PREVIOUSLY FILED A 6 PETITION FOR DISCHARGE WITHOUT THE APPROVAL OF THE DIRECTOR OF 7 THE DEPARTMENT OF COMMUNITY HEALTH AND THE COURT DETERMINED, 8 EITHER UPON REVIEW OF THE PETITION OR FOLLOWING A HEARING, THAT 9 THE PETITIONER'S PETITION WAS FRIVOLOUS OR THAT THE PETITIONER'S 10 CONDITION HAD NOT SO CHANGED THAT HE OR SHE WAS SAFE TO BE DIS- 11 CHARGED, THEN THE COURT SHALL DENY THE SUBSEQUENT PETITION UNLESS 12 THE PETITION CONTAINS FACTS UPON WHICH A COURT COULD FIND THAT 13 THE CONDITION OF THE PETITIONER HAD SO CHANGED THAT A HEARING WAS 14 WARRANTED. UPON RECEIPT OF A FIRST OR SUBSEQUENT PETITION FROM A 15 COMMITTED INDIVIDUAL WITHOUT THE APPROVAL OF THE DIRECTOR OF THE 16 DEPARTMENT OF COMMUNITY HEALTH OR THE DIRECTOR OF THE FACILITY 17 MANAGED BY THE DEPARTMENT OF COMMUNITY HEALTH, THE COURT SHALL 18 REVIEW THE PETITION AND DETERMINE IF THE PETITION IS BASED UPON 19 FRIVOLOUS GROUNDS AND IF SO SHALL DENY THE PETITION WITHOUT A 20 HEARING. 21 SEC. 1071. IT IS THE INTENT OF THE LEGISLATURE TO SEPARATE 22 AND PRESERVE THE FUNDS APPROPRIATED FOR THE TREATMENT OF INDIVID- 23 UALS UNDER THE OTHER CHAPTERS OF THIS CODE FROM THE FUNDS APPRO- 24 PRIATED FOR THE ADMINISTRATION OF THIS CHAPTER. 00039'99 Final page. DAM