An Act Amending the Laws Regarding Persons Not Criminally Responsible by Reason of Insanity
Maine Legislature, Session 122, LD 1517
Committee: Criminal Justice and Public Safety
Amends: 15 MRSA §103, 15 MRSA §104-A

Legislative Document 
No. 1517 
H.P.1062 
House of Representatives, March 30, 2005 
An Act Amending the Laws Regarding Persons Not Criminally 
Responsible by Reason of Insanity 
Reported by Representative BLANCHETTE of Bangor for the Criminal Law Advisory 
Commission pursuant to the Maine Revised Statutes, Title 17-A, section 1354, subsection 2. 
Reference to the Committee on Criminal Justice and Public Safety suggested and ordered 
printed under Joint Rule 218. 
Printed on recycled paper 
/J1~ 
1J7.1J?~ 
MILLICENT M. MacFARLAND 
Clerk 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 15 MRSA §103, as corrected by RR 1995, c. 2, §27 and 
amended by PL 2001, c. 354, §3 and PL 2003, c. 689, Pt. B, §7, is 
further amended to read: 
§103. 
Commitment following acceptance of negotiated insanity 
plea or following verdict or finding of insanity 
When a 
Ji'espeaaeat court accepts a negotiated plea of not 
criminally responsible by reason of insanity when a defendant is 
found not criminally responsible by reason of meBta±--d-iseasc el£' 
meB~al-aefee~-tRe insanity by jury verdict aBa or court finding, 
the judgment must so state. 
In tRa~-€aSe those cases the court 
shall 
order 
the 
person 
committed 
to 
the 
custody 
of 
the 
Commissioner of Health and Human Services to be placed in an 
appropriate institution for the mentally ill or the mentally 
retarded 
for 
care 
and 
treatment. 
Upon 
placement 
in 
the 
appropriate institution and in the event of transfer from one 
institution to another of persons committed under this section, 
notice 
of 
the 
placement 
or 
transfer 
must 
be 
given 
by 
the 
commissioner to the committing court. 
As 
used in this section. 
"not criminally responsible by 
reason of insanity" has 
the 
same 
meaning as 
in Title 17-A, 
section 39 and includes any comparable plea, finding or verdict 
in this State under former section 102; under a former version of 
Title 17-A. section 39; under former Title 17-A, section 58; or 
under former section 17-B. chapter 149 of the Revised Statutes of 
1954. 
Sec. 2. 15 MRSA §104-A, sub-§I, as corrected by RR 1995, c. 2, 
§28 and amended by PL 2001, c. 354, §3 and PL 2003, c. 689, Pt. 
B, §§6 and 7, is further amended to read: 
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 
Heal th 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 R9spitalisea committed. 
The court shall review each 
report and, if it is made to appear by the report that any person 
Page l-LR2194(1) 
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 Attorney General, offices of 
the district attorney that prosecuted the criminal charges for 
which the person was 
ae~~;it;t;eEl.--by--l'eaSeB--&f--iBSaB;i~i' committed 
under section 103 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 
pl'esee~~el' prosecutor 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 
the Department of Health and Human Services, Division 
of Mental Health; 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 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 under 
paragraph A, subparagraph (1), must continue until terminated by 
the court. 
Each person released under this section shall remain 
in the custody of the commissioner. 
The Commissioner of Health 
and Human Services shall inform the public safety officer of the 
municipality or the sheriff's office of the county into which the 
person is released of the release. 
Sec. 3. 15 MRSA §104-A, sub-§2, as corrected by RR 1995, c. 2, 
§29 and amended by PL 2001, c. 354, §3 and PL 2003, c. 689, Pt. 
B, §7, is further amended to read: 
2. 
Modified release treatment. 
Any individual nespi~a±isea 
committed pursuant to section 103 may petition the Superior Court 
for the county in which that person is nespi~a±iBea committed 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 
individual 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 office of the district attorney that 
prosecuted the criminal charges e€ for which the person was 
ae~Qi~~eQ-~-~~~~-iBsaBi~y committed under section 103, 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 Attorney General and the 
office that prosecuted the person may appear at any hearing on 
the 
matter. 
At 
the 
hearing, 
the 
court 
shall 
receive 
the 
testimony of a 
member of the State Forensic Service who 
has 
examined the person, 
any independent psychiatrist or licensed 
clinical 
psychologist 
who 
is 
employed 
by 
the 
p~eseeQ~e~ 
prosecutor 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 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 public 
safety officer 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 of that program. 
Sec. 4. 15 MRSA §104-A, sub-§3, as corrected by RR 1995, c. 2, 
§30 and amended by PL 2001, c. 354, §3 and PL 2003, c. 689, Pt. 
B, §7, is further amended to read: 
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 a9spiEa±isea committed under section 
T 
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 
a9spita±isea 
committed 
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 aespi~a±isea committed for 
a hearing under subsection 1. 
Upon receiving the petition, the 
court shall request and must be furnished by the Commissioner of 
Health and Human 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. 
Any 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 a9spiEa±isea committed 
for that person's discharge under subsection 1. 
If discharge is 
not ordered, a petition for discharge may not be filed again for 
months. 
Sec. 5. 17·A MRSA §39, sub·§l, as amended by PL 1985, c. 796, 
§5, is further amended to read: 
1. 
A defendant is not criminally responsible by reason of 
insani~ if, at the time of the criminal conduct, as a result of 
mental disease or defect, ae the defendant lacked substantial 
capacity to appreciate the wrongfulness 
of ais the criminal 
conduct. 
~ae-~~-saa**-~-&~-~~~~~~~-p~ev4R~7-~-a 
p~epeaae~aaee---e~---&b&--~~r--~~---£~--~a€k5---e~imiaa± 
~esp9asiBi±iEy-as-aese~iBea-ia-Eais-SYBSeeEi9aT 
Sec. 6. 17·A MRSA §39, sub·§3 is enacted to read: 
3. 
Lack of criminal responsibility by reason of insanity is 
an affirmative defense. 
Sec. 7. 17·A MRS A §40, as amended by PL 1985, c. 796, §6, is 
further amended to read: 
§40. 
Procedure upon plea of not guilty coupled with plea of not 
criminally responsible by reason of insanity 
1. 
When the defendant enters a plea of not guilty together 
with a plea of not criminally responsible by reason of insanity, 
ae the defendant shall also elect whether the trial saa±± must be 
in 2 stages as provided for in this section, or a unitary trial 
in which both the issues of guilt and of insanity are submitted 
simultaneously to the jury. At the defendant's election, the jury 
sRall ~ 
be informed that the 2 pleas have been made and that 
the trial will be in 2 stages. 
2. 
If a 
sRan ~ 
be 
of insanity in 
2-stage trial is elected by the defendant, 
a separation of the issue of guilt from the 
the following manner. 
there 
issue 
A. 
The issue of 
issue of insanity 
of guilty. If the 
proceedings sRall 
guilt sRall must be tried first and the 
tried only if the jury returns a verdict 
jury returns a verdict of not guilty, the 
~ 
terminate. 
B. 
Evidence of mental disease or defect, 
as defined in 
section 39, subsection 2, sRall ~ not ae admissible in the 
guilt or innocence phase of the trial for the purpose of 
establishing 
insanity. 
Such 
evidence 
sRall 
must 
be 
admissible for that purpose only in the 2nd phase following 
a verdict of guilty. 
3. 
The issue of insanity sRall must be tried before the 
same jury as tried the issue of guilt. 
Alternate jurors who were 
present during the first phase of the trial but who did not 
participate in the deliberations 
and verdict thereof 
may 
be 
substi tuted for jurors who did participate. 
The defendant may 
elect to have the issue of insanity tried by the court without a 
jury. 
4. 
If the jury in the first phase returns a guilty verdict, 
the trial sRall must proceed to the 2nd phase. The defendant and 
the State may rely upon evidence admitted during the first phase 
or they may recall witnesses. Any evidence relevant to insanity 
is admissible. 
The order of proof sRall ~ 
reflect that the 
defendant has the burden of establishing R~s the defendant's lack 
of criminal responsibility by reason of insanity. 
The jury shall 
return a verdict that the defendant is criminally responsible or 
not criminally responsible by reason of meR~al-~6ea6e ~~-eefee~ 
insanity. 
If the defendant is found criminally responsible, the 
court shall sentence Rim the defendant according to law. 
5. 
This section does not apply to cases tr ied before the 
court without a jury. 
SUMMARY 
This bill replaces disparate references to the affirmative 
defense of insanity in the Maine Revised Statutes, Title 15, 
section 103 and in Title 17-A, sections 39 and 40 with the more 
accurate and understandable phrase "not criminally responsible by 
reason of insanity," which is consistent with the Maine Rules of 
Criminal Procedure, 
Rules ll(a)(l) and llA(h) relative to the 
plea 
of 
insanity. 
The 
bill 
also 
defines 
"not 
criminally 
responsible by reason of insanity," which clarifies that Title 
15, section 103 has application to any insanity plea, finding or 
verdict stemming from former Title 15, section 102; current Title 
-A, section 39 or any earlier version of that section; former 
Title l7-A, section 58; or former section l7-B, chapter 149 of 
the Revised Statutes of 1954. 
The bill amends Title 15, section 
104-A by striking the words "acquitted by reason of insanity" and 
replacing them with a reference to Title 15, section 103, which 
directs a defendant's being committed following the acceptance of 
a negotiated insanity plea or following a verdict or finding of 
insanity. 
The bill also identifies insanity as an affirmative 
defense 
and 
makes 
technical 
language 
changes 
to 
conform 
to 
legislative drafting guidelines.