An Act To Promote Justice for Those Not Guilty of Crimes Due to Mental Disease or Defect
Maine Legislature, Session 121, LD 1237
Committee: Judiciary
Sponsors: FAIRCLOTH, STRIMLING, BUNKER, LA VERRIERE-BOUCHER, MILLS, NORBERT
Amends: 15 MRSA §104

Legislative Document 
No. 1237 
H.P.911 
House of Representatives, March 6, 2003 
An Act To Promote Justice for Those Not Guilty of Crimes Due to 
Mental Disease or Defect 
Reference to the Committee on Judiciary suggested and ordered printed. 
Presented by Representative FAIRCLOTH of Bangor. 
Cosponsored by Senator STRIMLING of Cumberland and 
7Y/~/J7.~ 
MIILICENT M. MacFARLAND 
Clerk 
Representatives: BUNKER of Kossuth Township, CANA V AN of Waterville, LA VERRIERE-
BOUCHER of Biddeford, MILLS of Cornville, NORBERT of Portland. 
Printed OD recycled paper 
Be enacted by the People of the State of Maine as follows: 
Sec. 1. 15 MRSA §104.A. as corrected by RR 1995, c. 2, §§28 
to 30 and as amended by PL 2001, c. 354, §3, is further amended 
to read: 
§104-A. 
Release and discharge, hearing, payment of 
fees 
1. 
Release and discharge. 
The term "release," as used in 
this 
section, 
means 
termination 
of 
institutional 
in-patient 
residency and return to permanent residency in the community. 
The head of the institution in which a person is placed, under 
section 103, 
shall, 
annually, 
forward to the Commissioner of 
Behavioral and Developmental Services a 
report containing the 
opinion of a staff psychiatrist as to the mental conditions of 
that person, 
stating specifically whether 
the person may 
be 
released or discharged without likelihood that the person will 
cause injury to that person or to others due to mental disease or 
mental defect. 
The report must also contain a brief statement of 
the reasons for the opinion. 
The commissioner shall immediately 
file the report in the Superior Court for the county in which the 
person is hospitalized. 
The court shall review each report and, 
if it is made to appear by the report that any person may be 
ready for release or discharge, the court shall set a date for 
and hold a hearing on the issue of the person's readiness for 
release or discharge. 
The court shall give notice of the hearing 
and mail a copy of the report to the A~~eFBey-GeBeFalr-eEEiees-eE 
~Re--d-:i,..s.t.~-i-o-t--a~~eFBey prosecutorial office that prosecuted the 
JO 
criminal charges for which the person was 
aeEIyi~~eel found not 
criminally responsible by reason of 
iBsaBi~y mental disease or 
mental defect and the offices of the district attorneys in whose 
district the release petition was filed or in whose district 
release may occur. 
At the hearing, the court shall receive the 
testimony of at least one psychiatrist who has treated the person 
and a member of the State Forensic Service who has examined the 
person, the testimony of any independent psychiatrist or licensed 
clinical 
psychologist 
who 
is 
employed 
by 
the 
~FeSeeyteF 
prosecutor or the petitioner and has examined the person and any 
other relevant testimony. 
If, after hearing, 
the court finds 
that the person may be released or discharged without likelihood 
that the person will cause injury to that person or to others due 
to mental disease or mental defect, the court shall order, as 
applicable: 
A. 
Release from the institution, provided that: 
(1) 
The 
order 
for 
release 
may 
include 
conditions 
determined appropriate by the court, including, but not 
limited to, out-patient treatment and supervision by 
Page l-LR0264 (1) 
L4 
Hi 
In 
'(1 
.24 
3U 
\4 
'0 
'" 
so 
the 
Department 
of 
Behavioral 
and 
Developmental 
Services, Division of Mental Health that monitors and 
ensures prescribed medications are taken; and 
(2) 
The order for release includes the condition that 
the 
person 
must 
be 
returned 
to 
the 
institution 
immediately upon the order of the commissioner whenever 
the person fails to comply with other conditions of 
release ordered by the court; or 
B. 
Discharge 
from 
the 
custody of 
the 
Commissioner 
of 
Behavioral and Developmental Services. 
Release from the institution is subject to annual review by the 
court and, except for return as ordered by the commissioner under 
paragraph AT-~~~~-t±t, must continue until terminated by 
the court. 
Each person released under this section sRall must 
remain in the custody of the commissioner. 
The Commissioner of 
Behavioral and Developmental Services shall inform the 
~HB±ie 
safeEy-effieeF law enforcement agency of the municipality or the 
sheriff's office of the county into which the person is released 
of the release. 
2. 
Modified 
release 
treatment. 
ABy 
An 
individual 
hospitalized pursuant to section 103 may petition the Superior 
Court for the county in which that person is hospitalized for a 
release treatment program 
allowing the 
individual 
to 
be off 
institutional grounds for a period of time, not to exceed 14 days 
at anyone time. 
The petition must contain a report from the 
institutional staff, including at least one psychiatrist, and the 
report must define the patient's present condition; the planned 
treatment program involving absence 
from the institution; the 
duration of the absence 
from 
the institution; 
the 
amount of 
supervision during the absence; the expectation of results from 
the program change; and the estimated duration of the treatment 
program before further change. 
This petition must be forwarded 
to the court no later than 60 days prior to the beginning of the 
modified treatment program. 
If the court considers that the 
iBaiviaHal individual's being off the grounds, as described in 
the 
treatment 
plan, 
is 
inappropriate, 
it shall 
notify 
the 
hospital that the plan is not approved and shall schedule 
a 
hearing on the matter. 
The clerk of courts upon receipt of the 
proposed treatment program shall give notice of the receipt of 
this program by mailing a copy to the effiee---G-E---t£.e--Qis1;FieE 
aEE9FBey 
prosecutorial 
office 
that 
prosecuted 
the 
criminal 
charges of which the person was aeEfHiE1;ea found not criminally 
responsible 
by 
reason 
of 
iBsaBi1;y 
mental 
disease 
or 
mental 
defect, the offices of the district attorneys in whose district 
the release petition was filed or in whose district release may 
occur 
and 
the Attorney General 
who 
may file objections 
and 
request a hearing on the matter. 
Representatives of the Aee9Faey 
GeaeFal--and--t::he prosecutor ial off ice that prosecuted the person 
may appear at any hearing on the matter. 
At the hearing, the 
court shall receive the testimony of at least one psychiatrist 
who has treated the person and of a member of the State Forensic 
Service 
who 
has 
examined 
the 
person, 
the 
testimony 
of 
any 
independent psychiatrist or licensed clinical psychologist who is 
R 
employed 
by 
the 
pF9see~eeF prosecutor or petitioner 
and 
has 
examined the person and any other relevant testimony. 
If the 
court does not respond wi thin 60 days to the proposed treatment 
plan and no objections and request for hearing are filed by the 
L2 
district attorney or Attorney General, it may then be put into 
effect by the administrator of the hospital on the assumption 
that the court approved the treatment plan. 
The Commissioner of 
Behavioral 
and Developmental Services shall inform the 
p~B±ie 
safet::y-effieeF law enforcement agency of the municipality or the 
sheriff's office of the county in which the person will spend any 
unsupervised time under the release treatment program 
9f--~hat 
PF9'3Fam . 
3. 
Other 
provisions 
concerning 
initial 
release 
or 
discharge. 
A report must be forwarded and filed and hearings 
must be held in accordance with subsection 1, without unnecessary 
delay 
when, 
at 
any 
time, 
it 
is 
the 
opinion 
of 
a 
staff 
psychiatrist that a patient hospitalized under section 103 7 
may 
;~6 
be released or discharged without likelihood that the patient 
will cause injury to that patient or to others due to mental 
~8 
disease or mental defect. 
A person hospitalized under section 103, or the person's spouse 
or next of kin, may petition the Superior Court for the county in 
which that person is hospitalized for a hearing under subsection 
1. 
Upon receiving the petition, the court shall request and must 
be furnished by the Commissioner of Behavioral and Developmental 
Services a 
report on the mental condition of that person, 
as 
described in subsection 1. 
A hearing must 
be held on each 
petition, 
and 
release 
or discharge, 
if ordered, 
must 
be 
in 
accordance with subsection 1. 
If release or discharge is not 
ordered, 
a petition may not be filed again for the release or 
discharge of that person for 6 months. 
Aay 
person released 
under subsection 1 or the person's spouse or next of kin may at 
any time after 6 months from the release petition the Superior 
Court for the county in which that person was hospitalized [or 
that person's discharge under subsection 1. 
If discharge is not 
ordered, a petition for discharge may not be filed again for 6 
months. 
')0 
A. 
Petitioner' s burden of proof. 
to subsection 1, 2 or 3, the petitioner's 
follows. 
In a hearing pursuant 
burden of proof is as 
, 
L. 
Ii 
n i) 
LO 
A. 
If the person hospitalized was 
found not criminally 
responsible by reason of mental disease or mental defect for 
murder or a Class A offense, the petitioner must demonstrate 
by clear and convincing evidence that the modified release 
treatment program, release on conditions or discharge may be 
granted without likelihood that the person will cause injury 
to that person or to others due to mental disease or mental 
defect. 
B. 
If the person hospitalized was 
found not criminally 
LZ 
responsible by reason of mental disease or mental defect for 
a 
Class 
B, 
C, 
D 
or 
E 
offense, 
the 
petitioner 
must 
L4 
demonstrate 
by 
a 
preponderance of the evidence that the 
modified release treatment program, release on conditions or 
discharge may be granted without likelihood that the person 
will cause injury to that person or to others due to mental 
LH 
disease or mental defect. 
:' I 
4. 
Return to institution upon commissioner's order. 
The 
commissioner may order aay £ person released under subsection 1, 
paragraph AT who fails to comply wi th the conditions of release 
ordered by the court, 
as 
evidenced by the affidavit of 
any 
interested person, to return to the institution from which ae the 
person was 
released. 
A hearing saa±± must 
be held for 
the 
,~Ii 
purpose of reviewing the order for release within 7 days of the 
person's return if the person will be detained for 7 or more 
: g 
days. 
At the hearing, the court shall receive testimony of the 
psychiatrist who observed or treated the person upon the person's 
I() 
return to the institutionT and any member of the State Forensic 
Service who has examined the person upon the person's returnT and 
<2 
any other relevant testimony. 
Following hearing, the court may 
reissue or modify the previous order of release. 
5. 
Reinstitutionalization 
due 
to 
likelihood of 
causing 
\,; 
injury. 
Aay h person released under subsection 1, paragraph AT 
whose reinstitutionalization, due to the likelihood that Re the 
IH 
person will cause injury to Riffise±' that person or others due to 
mental disease or mental defect, is considered necessary, 
upon 
i(\ 
the verified petition of any interested person, may be brought 
before aay £ Justice of the Superior Court upon Ris the justice's 
+2 
order. 
A hearing SRa±± must be held for the purpose of reviewing 
the mental condition of the person and the order for release. 
+4 
The 
court may 
order the person detained for 
observation and 
treatment, if appropriate, at the institution from which ae the 
+(i 
person was released pending the hearing, which detention SRa±± 
may not exceed 14 days. 
The psychiatrist responsible for the 
~H 
observation or treatment of the person shall report to the court 
prior to the hearing as to the mental condition of the person, 
r,n 
indicating specifically whether the person can remain in the 
community without likelihood that ae the person will cause injury 
to aiffi6e~~ that person or others due to mental disease or mental 
defect. 
The 
court 
shall 
receive 
the 
testimony 
of 
the 
psychiatrist who observed or treated the person during the period 
of detentionT and any member of the State Forensic Service who 
G 
has examined the person during the period of detentionT 
and any 
other relevant testimony. Following the hearing, the court may 
R 
reissue, modify or rescind the previous order of release. 
LO 
6. 
Involuntary hospitalization; notice; appointed counsel. 
Aay b person released under subsection 1, paragraph AT 
may be 
admitted to a hospital under any provision of Title 34-B, chapter 
3, subchapter IV ~, Article 3T while the order for release is in 
JA 
effect. 
Notice of any hearing under subsection 1, 2, 3 or 5 
6aa~~ must be 
given to the offices of the ai6~Fie~-a~~eFaey-waiea prosecutorial 
1(', 
office that prosecuted the criminal charges against the person 
for 
which 
the 
person 
was 
aeEfai~~ea 
found 
not 
criminally 
~o 
responsible 
by 
reason 
of 
ia6aai~y mental 
disease 
or 
mental 
defect, the offices of the district attorneys in whose district 
,22 
the release petition was filed or in whose district release may 
occur and the Attorney General at least 7 days before the hearing 
date. 
Notice of aai' Q hearing under subsection 4 saa±± must be 
given to the office of the district attorney and the Attorney 
General as soon as possible before the hearing date. 
,28 
Whenever a hearing is to be held under this section, the court 
shall determine whether the person whose release or discharge is 
1(1 
in issue is indigent. 
If the court finds that the person is 
indigent, 
i~ the court shall appoint counsel to represent the 
person in connection with the hearing. 
Fees for court-appointed 
counsel for services rendered in connection with aay 
Q hear ing 
\4 
held under this section, 
or appeal 
from 
a 
decision in alli' 
Q 
hearing, 
and the fees of 
any expert witnesses called by the 
(6 
district attorneYT or the Attorney General or on behalf of the 
person whose release or discharge is in issue, if indigent, saa±± 
I R 
must be paid by the State. 
Any such fee to be in order for 
payment saa±± must be first approved by the justice presiding at 
the hearing held under this section. 
SUMMARY 
This 
bill 
specifies 
that 
proper 
use 
of 
prescribed 
medications may be a condition of release for a person found not 
criminally responsible by 
reason of mental disease or mental 
4R 
defeat. 
This bill lessens the burden of proof for a petitioner 
seeking the release or discharge of a person hospitalized after 
SO 
having been found not criminally responsible by reason of mental 
disease or mental defect for committing a Class B, 
C, 
D or E 
crime. 
For discharge or release, a petitioner must demonstrate 
by a 
preponderance of the evidence that the modified release 
treatment program, 
release on conditions or discharge may 
be 
granted without likelihood that the person will cause injury to 
" 
that person or to others due to mental disease or mental defect. 
The 
petitioner's burden of 
proof 
in 
a 
case 
for 
release or 
discharge where a person was found not criminally responsible by 
reason of mental disease or defect for murder or a Class A crime 
remains 
proof 
by 
clear 
and 
convincing 
evidence. 
(Taylor 
v. 
Commissioner of Mental Health and Mental Retardation, 481 A.2d 
L2 
(1984)) 
The bill also 
makes 
technical 
changes 
to 
the 
statutes.