An Act To Amend the Laws Governing Mental Responsibility for Criminal Conduct
Maine Legislature, Session 126, LD 1433
Committee: Criminal Justice and Public Safety
Sponsors: SANDERSON, HAMPER
Amends: 15 MRSA §101-D, 15 MRSA §103-A, 15 MRSA §104-A

Legislative Document 
No. 1433 
H.P. 1022 
House of Representatives, April 23, 2013 
An Act To Amend the Laws Governing Mental Responsibility for 
Criminal Conduct 
Submitted by the Department of Health and Human Services pursuant to Joint Rule 204. 
Reference to the Committee on Criminal Justice and Public Safety suggested and ordered 
printed. 
MILLICENT M. MacFARLAND 
Clerk 
Presented by Representative SANDERSON of Chelsea. 
Cosponsored by Senator HAMPER of Oxford. 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  15 MRSA §101-D, sub-§4, as amended by PL 2011, c. 542, Pt. A, §8, is 
further amended to read: 
4.  Commitment for observation.  The court may commit the defendant to the 
custody of the Commissioner of Health and Human Services for placement in an 
appropriate institution for the care and treatment of people with mental illness or in an 
appropriate residential program that provides care and treatment for persons who have 
intellectual disabilities or autism, as set forth in this subsection.  If the State Forensic 
Service determines that observation of the defendant will materially enhance its ability to 
perform an examination ordered pursuant to subsection 1, 2, 3 or 9 and the defendant is 
incarcerated, the observation may take place at the correctional facility where the 
defendant is incarcerated if the State Forensic Service determines that the correctional 
facility can provide an appropriate setting for the observation.  If the observation is to 
take place in a correctional facility, the court may not commit the defendant to the 
custody of the Commissioner of Health and Human Services. 
A.  If the State Forensic Service determines that observation of the defendant in an 
appropriate institution for the care of people with mental illness or in an appropriate 
residential program that provides care and treatment for persons who have intellectual 
disabilities or autism will materially enhance its ability to perform an evaluation 
examination ordered pursuant to subsection 1, 2, 3 or 9, the State Forensic Service 
shall so advise the court.  The State Forensic Service may make this determination 
based upon consultation with the defendant’s attorney and the attorney for the State 
and the court and upon such other information as it determines appropriate.  In 
addition, the State Forensic Service may include such a determination in a report to 
the court that recommends further evaluation of the defendant. 
B.  Upon a determination by the State Forensic Service under paragraph A, a court 
having jurisdiction in a criminal case may commit the defendant to the custody of the 
Commissioner of Health and Human Services for placement in an appropriate 
institution for the care and treatment of people with mental illness or in an 
appropriate residential program that provides care and treatment for persons who 
have intellectual disabilities or autism for observation for a period not to exceed 60 
days.  If the State Forensic Service requires additional time for observation, it shall 
communicate its request and the reasons for that request to the court and to counsel 
for the parties.  The court shall accommodate a party's request to be heard on the 
issue of whether an extension should be granted and may extend the commitment for 
up to an additional 90 days.  Unless the defendant objects, an order under this 
paragraph must authorize the institution or residential program where the defendant is 
placed by the Commissioner of Health and Human Services to provide treatment to 
the defendant.  When further observation of the defendant is determined no longer 
necessary by the State Forensic Service, the commissioner shall report that 
determination to the court and the court shall terminate the commitment.  If the 
defendant had been incarcerated prior to the commitment for observation and if, 
during the period of observation, the defendant assaults another person and the risk of 
further assault cannot be managed in an appropriate institution for the care and 
treatment of people with mental illness or in an appropriate residential program that 
provides care and treatment for persons who have intellectual disabilities or autism, 
the commissioner may return the defendant to the correctional facility.  The 
commissioner shall report that action to the court, the court shall terminate the 
commitment and any further evaluation under this subsection must take place at the 
correctional facility where the defendant is incarcerated. 
C.  If the court has provided for remand to a correctional facility following the 
commitment under paragraph B, the correctional facility shall execute the remand 
order upon advice from the Commissioner of Health and Human Services that 
commitment is determined no longer necessary. 
Sec. 2.  15 MRSA §101-D, sub-§5, as amended by PL 2011, c. 542, Pt. A, §9, is 
further amended to read: 
5.  Finding of incompetence; custody; bail.  If, after hearing upon motion of the 
attorney for the defendant or upon the court's own motion, the court finds that any 
defendant is incompetent to stand trial, the court shall continue the case until such time as 
the defendant is determined by the court to be competent to stand trial and may either: 
A.  Commit the defendant to the custody of the Commissioner of Health and Human 
Services to be placed in an for appropriate placement for observation, care and 
treatment in an institution for the care and treatment of people with mental illness or 
in, an appropriate residential program that provides care and treatment for persons 
who have intellectual disabilities or autism for observation, care and treatment, an 
intermediate care facility for persons who have intellectual disabilities or autism, a 
crisis stabilization unit, a nursing home, a residential care facility, an assisted living 
facility, a hospice or a hospital.  At the end of 30 days or sooner, and again in the 
event of recommitment, at the end of 60 days and one year 180 days, the State 
Forensic Service shall forward a report to the Commissioner of Health and Human 
Services relative to the defendant's competence to stand trial and its reasons.  The 
Commissioner of Health and Human Services shall without delay file the report with 
the court having jurisdiction of the case.  The court shall without delay set a date for 
and within 30 days hold a hearing on the question of the defendant's competence to 
stand trial and receive all relevant testimony bearing on the question.  If the court 
determines that the defendant is not competent to stand trial, but there does exist a 
substantial probability that the defendant will be competent to stand trial in the 
foreseeable future, the court shall recommit the defendant to the custody of the 
Commissioner of Health and Human Services to be placed in an for appropriate 
placement for observation, care and treatment in an institution for the care and 
treatment of people with mental illness or in, an appropriate residential program that 
provides care and treatment for persons who have intellectual disabilities or autism 
for observation, care and treatment, an intermediate care facility for persons who 
have intellectual disabilities or autism, a crisis stabilization unit, a nursing home, a 
residential care facility, an assisted living facility, a hospice or a hospital.  When a 
person who has been evaluated on behalf of the court by the State Forensic Service is 
committed into the custody of the Commissioner of Health and Human Services 
under this paragraph, the court shall order that the State Forensic Service share any 
information that it has collected or generated with respect to the person with the 
institution or residential program in which the person is placed.  If the defendant is 
charged with an offense under Title 17-A, chapter 9, 11 or 13 or Title 17-A, section 
506-A, 802 or 803-A and the court determines that the defendant is not competent to 
stand trial and there does not exist a substantial probability that the defendant can be 
competent in the foreseeable future, the court shall dismiss all charges against the 
defendant and, unless the defendant is subject to an undischarged term of 
imprisonment, order the Commissioner of Health and Human Services to commence 
involuntary commitment proceedings pursuant to Title 34-B, chapter 3, subchapter 4 
or chapter 5, subchapter 3.  If the defendant is charged with offenses not listed in the 
previous sentence and the court determines that the defendant is not competent to 
stand trial and there does not exist a substantial probability that the defendant can be 
competent in the foreseeable future, the court shall dismiss all charges against the 
defendant and, unless the defendant is subject to an undischarged term of 
imprisonment, notify the appropriate authorities who may institute civil commitment 
proceedings for the individual.  If the defendant is subject to an undischarged term of 
imprisonment, the court shall order the defendant into execution of that sentence and 
the correctional facility to which the defendant must be transported shall execute the 
court's order; or 
B.  Issue a bail order in accordance with chapter 105-A, with or without the further 
order that the defendant undergo observation at a state mental hospital or mental 
health facility an institution for the care and treatment of people with mental illness, 
an appropriate residential program that provides care and treatment for persons who 
have intellectual disabilities or autism, an intermediate care facility for persons who 
have intellectual disabilities or autism, a crisis stabilization unit, a nursing home, a 
residential care facility, an assisted living facility, a hospice or a hospital approved by 
the Department of Health and Human Services or by arrangement with a private 
psychiatrist or licensed clinical psychologist and treatment when it is determined 
appropriate by the State Forensic Service.  When outpatient observation and 
treatment is ordered an examination must take place within 45 days of the court's 
order and the State Forensic Service shall file its report of that examination within 60 
days of the court's order.  The State Forensic Service's report to the court must 
contain the opinion of the State Forensic Service concerning the defendant's 
competency to stand trial and its reasons.  The court shall without delay set a date for 
and within 30 days hold a hearing on the question of the defendant's competence to 
stand trial, which must be held pursuant to and consistent with the standards set out in 
paragraph A. 
Sec. 3.  15 MRSA §101-D, sub-§8, as enacted by PL 2009, c. 268, §3, is further 
amended to read: 
8.  No release during commitment period; violation.  A person ordered or 
committed for examination, observation, care or treatment pursuant to this section may 
not be released from the designated institution placement during the period of 
examination.  An individual responsible for or permitting the release of a person ordered 
committed pursuant to this section for examination, observation, care or treatment from 
the designated institution placement commits a civil violation for which a fine of not 
more than $1,000 may be adjudged. 
Sec. 4.  15 MRSA §103-A, sub-§2 is enacted to read: 
2.  Commencement of commitment.  When a person subject to an undischarged 
straight term of imprisonment or to an unsuspended portion of a split sentence for a 
Maine conviction is, for a different Maine offense, found not criminally responsible by 
reason of insanity or is the recipient of a negotiated insanity plea, the person must first 
serve the undischarged term of imprisonment or the unsuspended portion of the split 
sentence before commencing the commitment to the custody of the Commissioner of 
Health and Human Services ordered by the court pursuant to section 103. 
Sec. 5.  15 MRSA §104-A, sub-§2, as amended by PL 2005, c. 263, §3, is further 
amended to read: 
2.  Modified release treatment.  Any individual committed pursuant to section 103 
may petition the Superior Court for the county in which that person is 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 any one time if the individual is monitored by a 
team providing assertive community treatment as defined in Title 34-B, section 3801, 
subsection 11 and meets face to face with a psychiatrist, psychologist, nurse practitioner 
or physician assistant at least monthly.  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 
for which the person was 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 
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. 
SUMMARY 
This bill amends the laws governing mental responsibility for criminal conduct in the 
following ways. 
1.  It provides that the State Forensic Service may observe a defendant who is 
incarcerated at the correctional facility where the defendant is incarcerated as part of an 
evaluation of the defendant by the State Forensic Service if the State Forensic Service 
determines that the correctional facility can provide an appropriate setting for the 
observation. 
2.  It sets deadlines for a court to hold a hearing on the question of a defendant's 
competence to stand trial and increases the number of different types of facilities to which 
a court may commit a defendant who is found incompetent to stand trial. 
3.  It provides that a person who is in prison for an offense and is found not 
criminally responsible by reason of insanity for another offense must finish that person's 
prison term before beginning the commitment ordered by the court for the 2nd offense. 
4.  It provides that an individual who is in state custody on the basis of being not 
criminally responsible by reason of insanity with respect to an offense may petition the 
court to be off institutional grounds if the individual is monitored by a team providing 
assertive community treatment and meets with a psychiatrist, psychologist, nurse 
practitioner or physician assistant at least monthly.  It removes language that limits to 14 
days the amount of time such an individual may be off institutional grounds.