An Act To Provide Justice to Those Found Not Guilty Due to Mental Disease or Defect and Decrease Costs to the State
Maine Legislature, Session 122, LD 0029
Committee: Criminal Justice and Public Safety
Sponsors: FAIRCLOTH
Amends: 15 MRSA §104-A

Legislative Document 
No. 29 
H.P.32 
House of Representatives, January 6,2005 
An Act To Provide Justice to Those Found Not Guilty Due to Mental 
Disease or Defect and Decrease Costs to the State 
Reference to the Committee on Criminal Justice and Public Safety suggested and ordered 
printed. 
Presented by Representative FAIRCLOTH of Bangor. 
Printed on recycled paper 
Il/~ 
frJ.7J'bc~ 
MILLICENT M. MacFARLAND 
Clerk 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 15 MRSA §104-A, as corrected by RR 1995, 
and 30 and amended by PL ,2003, c. 
689, Pt. 
B, 
§§6 
further amended to read: 
c. 2, §§29 
and 7, is 
§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 
iR-~a~ieRt 
inpatient 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 Health and Human 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 AtteFney-GeneFalr-eEEiees-ef 
tae--4i-s-t-r-i-<!-t:--atteFRey prosecutor ial office that prosecuted the 
criminal charges for which the person was 
aeEf1:littea found not 
criminally responsible by reason of insanity 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 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 employed by the FFeSee1:lteF 
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, ~Feviaea-taat if: 
(1) 
The 
order 
for 
release 
FRay---iH€J1:lae 
includes 
conditions 
determined 
appropriate 
by 
the 
court, 
including, but not limited to, 
e1:lt-~atient outpatient 
treatment and supervision by the Department of Health 
Page l-LR0395(1) 
and Human Services, 
shall moni tor and 
are taken; and 
Division of Mental Health, which 
ensure that prescribed medications 
(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 Health 
and Human Services. 
Release from the institution is subject to annual review by the 
court and, except for return as ordered by the commissioner un4er 
paragraph A, 
s~9paFa~Faph-{l+T must continue until terminated by 
the court. 
Each person released under this section saall ~ 
remain in the custody of the commissioner. 
The GeRlRli-sswBe-F--ef 
Wea;!,.t;a--and--a.~-Se£l ... iees commissioner shall inform the 
~~9lie 
safet;y-affieeF 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 
iBaiYia~a:l 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--Q-:E---t.-he--ai-st;Fiet; 
at;t;eFBey 
prosecutorial 
office 
that 
prosecuted 
the 
criminal 
charges 
af 
1QI 
which 
the 
person 
was 
ae~~it;t;ea 
found 
not 
criminally responsible by reason of iasaBit;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 
GeneralL 
who 
may 
file 
objections and request a hearing on the matter. 
Representatives 
of 
the 
A~~eFRey--GeReFa~--aRQ--~be prosecutorial 
office 
that 
prosecuted the person may appear at any hearing on the matter. 
At the hearing, the court s~all 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 employed by the 
~FeseeaseF prosecutor or 
petitioner and has examined the person and any other relevant 
testimony. 
If the court does not respond within 60 days to the 
proposed treatment plan and no objections and request for hearing 
are filed by the district attorney or the 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 Health and Human Services shall inform the 
~aslie-saie~y-eiiieeF 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 
ei-sbas-~Fe~HllR. 
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, may 
be released or discharged without likelihood that the patient 
will cause injury to that patient or to others due to mental 
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 ffiHSS 
se--f4K-n-ished--sy the Commissioner of Health and Human Services 
shall furnish to the court 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. 
ARy b 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 for 
that person's discharge under subsection 1. 
I f discharge is not 
ordered, a petition for discharge may not be filed again for 6 
months. 
3-A. 
Petitioner's burden of proof. 
In a hearing pursuant 
to subsection 1, 2 or 3, the petitioner's burden of proof is as 
follows. 
A. 
If the person hospitalized was 
found not criminally 
responsible by reason of mental disease or mental defect for 
murder or a Class A crime, 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. 
S. 
If the person hospitalized was 
found not criminally 
responsible by reason of mental disease or mental defect for 
a Class S, C, D or E crime, the 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. 
4. 
Return to institution upon co ..... issioner's order. 
The 
commissioner may order aay Q person released under subsection 1, 
paragraph AT who fails to comply with the conditions of release 
ordered by the court, 
as 
evidenced by the affidavit of 
any 
interested person, to return to the institution from which He the 
person was 
released. 
A hearing sHall must be held for 
the 
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 
days. 
At the hearing, the court shall receive testimony of the 
psychiatrist who observed or treated the person upon the person's 
return to the insti tutionT and any member of the State Forensic 
Service who has examined the person upon the person's returnT and 
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 He the 
person will cause injury to Himself that person or others due to 
mental disease or mental defect, is considered necessary, 
upon 
the verified petition of any interested person, may be brought 
before aay Q Justice of the Superior Court upon His the justice's 
order. 
A hearing sHall must be held for the purpose of reviewing 
the mental condition of the person and the order for release. 
The court may order the person detained for observation and 
treatment, if appropriate, at the institution from which He the 
person was released pending the hearing, which detention sHall 
may not exceed 14 days. 
The psychiatrist responsible for the 
observation or treatment of the person shall report to the court 
prior to the hearing as to the mental condition of the person, 
indicating specifically whether the person can remain in the 
community without likelihood that He the person will cause injury 
to H~mse!f 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 
has examined the person during the period of detentionT and any 
other relevant testimony. Following the hearing, the court may 
reissue, modify or rescind the previous order of release. 
6. 
Involuntary hospitalization; notice; appointed counsel. 
Aay A 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 3 T while the order for release is in 
effect. 
Notice of any hearing under subsection L 
2, 3 or 5 sHall I!lY.ll be 
given to the offices of the e~st~iet-atte~aey-wHieH prosecutorial 
office that prosecuted the criminal charges against the person 
feF 
of 
which 
the person 
was 
ae~~ittee found 
not 
criminally 
responsible 
by 
reason 
of 
~asaaity 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 at least 7 days before the hearing 
date. 
Notice of any hearing under subsection 4 sHall must be 
given to the office of the district attorney and the Attorney 
General as soon as possible before the hearing date. 
Whenever a hearing is to be held under this section, the court 
shall determine whether the person whose release or discharge is 
in issue is indigent. 
If the court finds that the person is 
indigent, 
~t 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 .a hearing 
held under this section, or appeal from 
a decision in aay 
.Q 
hearing, 
and the fees of any expert witnesses called by the 
district attorneYT or the Attorney General or on behalf of the 
person whose release or discharge is in issue, if indigent, sHall 
must be paid by the State. 
Any such fee to be in order for 
payment sHall 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 
defect. 
This bill lessens the burden of proof for a petitioner 
seeking the release or discharge of a person hospitalized after 
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 
(1984». 
The bill also 
makes 
technical 
changes 
to 
the 
statutes.