Louisiana

LA C.Cr.P. T. XXI, Ch. 1Chapter 1. Mental Incapacity to Proceed

Louisiana Code of Criminal Procedure

Title XXI. Insanity Proceedings

Chapter 1. Mental Incapacity to Proceed

Art. 641. Mental incapacity to proceed defined

Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.

Art. 642. How mental incapacity is raised; effect

The defendant's mental incapacity to proceed may be raised at any time by the defense, the district attorney, or the court. When the question of the defendant's mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed.

Art. 643. Order for mental examination

The court shall order a mental examination of the defendant when it has reasonable ground to doubt the defendant's mental capacity to proceed. Prior to the ordering of any such mental examination, the court shall appoint counsel to represent the defendant if he has not already retained counsel.

Art. 644. Appointment of sanity commission; examination of defendant

A. Within seven days after a mental examination is ordered, the court shall appoint a sanity commission to examine and report upon the mental condition of the defendant. The sanity commission shall consist of at least two and not more than three members who are licensed to practice medicine in Louisiana, who have been in the actual practice of medicine for not less than three consecutive years immediately preceding the appointment, and who are qualified by training or experience in forensic evaluations. The court may appoint, in lieu of one physician, a clinical psychologist who is licensed to practice psychology in Louisiana, who has been engaged in the practice of clinical or counseling psychology for not less than three consecutive years immediately preceding the appointment, and who is qualified by training or experience in forensic evaluations. Every sanity commission shall have at least one psychiatrist as a member of the commission, unless one is not reasonably available, in which case, the commission shall have at least one clinical psychologist as a member of the commission. No more than one member of the sanity commission shall be the coroner or any of his deputies.

B. The members of the sanity commission appointed to make the examination shall have free access to the defendant at all reasonable times. The court shall subpoena witnesses to attend the examination at the request of the defendant, the commission, or any member thereof.

C. For the purpose of the mental examination, the court may order a defendant previously released on bail to appear for mental examinations and hearings in the same manner as other criminal proceedings.

D. (1) The court, in any judicial district which enters into a cooperative endeavor agreement with the local mental health unit, in lieu of appointing a sanity commission as provided in Paragraph A, may appoint the local mental health unit to examine and report on the mental condition of the defendant. If the local mental health unit is ordered to conduct the examination, it shall form a clinical team, consisting of at least two but not more than three members, to conduct the examination. The clinical team shall be composed of

one or more licensed physicians with at least three years experience in the study of psychiatry in an approved United States General Psychiatry Residency Program; if only one such licensed physician is a member of the clinical team, the remaining members of the clinical team may be composed of clinical psychologists, or licensed clinical social workers, who are qualified by training or experience in forensic evaluations.

(2)(a) With respect to all other provisions of the Code of Criminal Procedure in which the term "sanity commission" is designated, it shall also mean and include, for the exclusive purpose of this Article, a clinical team designated by the local health unit to conduct the examination of the defendant in accordance with this Paragraph.

(b) "Local mental health unit" as used in this Paragraph shall mean a legislatively created Human Services Authority.

Art. 645. Report of sanity commission

A. (1) The report of the sanity commission members shall address their specific findings with regard to all of the following:

(a) The defendant's capacity to understand the proceedings against him.

(b) His ability to assist in his defense.

(c) His need for inpatient hospitalization in the event he is found incompetent.

(2) The fact that the defendant claims to be unable to remember the time period surrounding the alleged offense shall not, by itself, bar a finding of

competency if the defendant otherwise understands the charges against him and can assist in his defense.

B. The report of the sanity commission shall be filed in triplicate with the presiding judge within thirty days after the date of the order of appointment. The time for filing may be extended by the court. The clerk shall make copies of the report available to the district attorney and to the defendant or his counsel without cost.

Art. 646. Examination by physician retained by defense or district attorney

The court order for a mental examination shall not deprive the defendant or the district attorney of the right to an independent mental examination by a physician or mental health expert of his choice, and such physician or mental health expert shall be permitted to have reasonable access to the defendant for the purposes of the examination.

Art. 647. Determination of mental capacity to proceed

The issue of the defendant's mental capacity to proceed shall be determined by the court in a contradictory hearing. The report of the sanity commission is admissible in evidence at the hearing, and members of the sanity commission may be called as witnesses by the court, the defense, or the district attorney. Regardless of who calls them as witnesses, the members of the commission are subject to cross-examination by the defense, by the district attorney, and by the court. Other evidence pertaining to the defendant's mental capacity to proceed may be introduced at the hearing by the defense and by the district attorney.

Art. 648. Procedure after determination of mental capacity or incapacity

A. The criminal prosecution shall be resumed unless the court determines by clear and convincing evidence that the defendant does not have the mental capacity to proceed. If the court determines that the defendant lacks mental capacity to proceed, the proceedings shall be suspended and one of the following dispositions made:

(1) If the court determines that the defendant's mental capacity is likely to be restored within ninety days by outpatient care and treatment at an institution as defined by R.S. 28:2(28) while remaining in the custody of the criminal authorities, and if the person is not charged with a felony or a misdemeanor classified as an offense against the person and is considered by the court to be unlikely to commit crimes of violence, then the court may order outpatient care and treatment at any institution as defined by R.S. 28:2(28).

(2)(a) If the person is charged with a felony or a misdemeanor classified as an offense against the person and considered by the court to be likely to commit crimes of violence, and if the court determines that his mental capacity is likely to be restored within ninety days as a result of treatment, the court may order immediate jail-based treatment by the Department of Health and Hospitals not to exceed ninety days; otherwise, if his capacity cannot be restored within ninety days and inpatient treatment is recommended, the court shall commit the defendant to the Feliciana Forensic Facility.

(b) If a defendant committed to the Feliciana Forensic Facility is held in a parish jail for one hundred eighty days after the court's determination that he lacks the mental capacity to proceed, the court shall order a status conference to be held with the defense and the district attorney present, and for good cause shown and on motion of the defendant or the district attorney or on the court's own motion, the court shall order a contradictory hearing to determine whether there has been a change in the defendant's condition or other circumstances sufficient to warrant a modification of the previous order.

B. (1) In no instance shall such custody, care, and treatment exceed the time of the maximum sentence the defendant could receive if convicted of the crime with which he is charged. At any time after commitment and on the recommendation of the superintendent of the institution that the defendant will not attain the capacity to proceed with his trial in the foreseeable future, the court shall, within sixty days and after at least ten days notice to the district attorney and defendant's counsel, conduct a contradictory hearing to determine whether the mentally defective defendant is, and will in the foreseeable future be, incapable of standing trial and whether he is a danger to himself or others.

(2) If, after the hearing, the court determines the defendant is, and will in the foreseeable future be, incapable of standing trial and may be released without danger to himself or others, the court shall release the defendant on probation. The probationer shall be under the supervision of the Department of Public Safety and Corrections, division of probation and parole, and subject to such conditions as may be imposed by the court.

(3) If, after the hearing, the court determines the mentally defective defendant incapable of standing trial, is a danger to himself or others, and is unlikely in the foreseeable future to be capable of standing trial, the court shall order commitment to a designated and medically suitable treatment facility. Such a judgment shall constitute an order of civil commitment. However, the director of the institution designated for the patient's treatment shall, in writing, notify the court and the district attorney when the patient is to be discharged or conditionally discharged, as long as the charges are pending. If not dismissed without prejudice at an earlier trial, charges against an unrestorable incompetent defendant shall be dismissed on the date upon which his sentence would have expired had he been convicted and received the maximum sentence for the crime charged, or on the date five years from the date of his arrest for such charges, whichever is sooner, except for the following charges:

Art. 648.1. Information required prior to admission

No superintendent of an institution shall admit a defendant found by the court to lack the mental capacity to proceed pursuant to Article 648 unless he is furnished by the court the following information:

(1) The name and address of the defendant's attorney.

(2) The crime or crimes with which the defendant is charged and the date of such charge or charges.

(3) A copy of the report of the sanity commission.

(4) Any other pertinent information concerning the defendant's health which has

come to the attention of the court such as injuries sustained at the time of arrest or injuries sustained following incarceration.

(5) A copy of the defendant's criminal history record.

(6) A copy of the police report concerning the charged offense.

(7) A copy of the judgment and order specifying the nature and purpose of the commitment or recommitment to the state institution.

Art. 649. Procedure when capacity regained

A. At any time after a defendant's commitment, if either the superintendent of the mental institution or the administrator of outreach forensic services reports to the committing court that the defendant presently has the mental capacity to proceed, the defendant, if hospitalized, shall be discharged from the mental institution and released to the custody of the sheriff of the parish from which the defendant was committed, and the court shall hold a contradictory hearing within thirty days on that issue. No defendant shall be released prior to the holding of the contradictory hearing on his release unless the office of the district attorney in charge of the prosecution of the defendant receives seven days notice of the pending release of the defendant.

B. Prior to such a hearing, the court shall appoint counsel to represent the defendant, if the defendant does not have counsel, and may order a mental examination by a sanity commission appointed in conformity with Article 644. The report of the superintendent of the mental institution or the administrator

of outreach services may be stipulated to and submitted by the state and the defense in lieu of a mental examination by a sanity commission. If the committing court does not hold a hearing within thirty days, the sheriff of the parish from which the defendant was committed shall appear at the institution within seven days thereafter and shall receive and hold the defendant in custody pending further orders of the committing court. If the sheriff fails to appear with a court order and accept custody of the defendant, the superintendent of the state mental institution or the director of the mental health unit shall notify the judicial administrator and the attorney general of such fact. Thereafter the Criminal Court Fund of the parish from which the defendant was committed shall pay to the general fund of the state the sum of one hundred dollars a day until the sheriff appears and accepts custody of the defendant for the court.

C. The district attorney or the defense may apply to the court to have the proceedings resumed, on the ground that the defendant presently has the mental capacity to proceed. Upon receipt of such application the court shall hold a contradictory hearing to determine if there is reasonable ground to believe that the defendant presently has the mental capacity to proceed. The court may

direct the superintendent of the mental institution where the defendant is committed or the administrator of outreach forensic services, if treatment is initiated in jail, to make a report and recommendation prior to such hearing as to whether the defendant presently has capacity to proceed, or may order an independent mental examination by a sanity commission appointed in conformity with Article 644.

D. Reports as to present mental capacity to proceed shall be filed in conformity with Article 645, and the court's determination of present mental capacity to proceed shall be made in conformity with the appropriate provisions of Articles 646 and 647.

E. If the court determines that the defendant has the mental capacity to proceed, the proceedings shall be promptly resumed.

Art. 649.1. Prescribed medication; administration

When a person is returned to the committing court from an institution pursuant to Article 649 pending a sanity hearing, and the superintendent of the committing institution deems it necessary that the patient receive prescribed medication, it shall be the duty of the chief administrative officer of the parish jail to make such medication available to the person until such time as the coroner or another physician finds that the medication or its prescribed dosage is no longer necessary.

Chapter 2. Defense of Insanity at Time of Offense

Art. 650. Mental examination after plea of insanity

When a defendant enters a combined plea of "not guilty and not guilty by reason of insanity," the court may appoint a sanity commission as provided in Article 644 to make an examination as to the defendant's mental condition at the time of the offense. The court may also order the commission to make an examination as to the defendant's present mental capacity to proceed. Mental examinations and reports under this article shall be conducted and filed in conformity with Articles 644 through 646.

Art. 651. When defense of insanity at time of offense is available; method of trial

When a defendant is tried upon a plea of "not guilty", evidence of insanity or mental defect at the time of the offense shall not be admissible.

The defenses available under a combined plea of "not guilty and not guilty by reason of insanity" shall be tried together.

Art. 652. Burden of proof

The defendant has the burden of establishing the defense of insanity at the time of the offense by a preponderance of the evidence.

Art. 653. Testimony of members of sanity commission

Upon the trial of the defense of insanity at the time of the offense, the members of the sanity commission may be called as witnesses by the court, the defense, or the district attorney. Regardless of who calls them as witnesses, the members of the commission are subject to cross-examination by the defense, by the district attorney, and by the court. Other evidence pertaining to the defense of insanity at the time of the offense may be introduced at the trial by the defense and by the district attorney.

Art. 654. Legal effect of acquittal on ground of insanity; commitment

When a verdict of not guilty by reason of insanity is returned in a capital case, the court shall commit the defendant to a proper state mental institution or to a private mental institution approved by the court for custody, care, and treatment.

When a defendant is found not guilty by reason of insanity in any other felony case, the court shall remand him to the parish jail or to a private mental institution approved by the court and shall promptly hold a contradictory hearing at which the defendant shall have the burden of proof, to determine whether the defendant can be discharged or can be released on probation, without danger to others or to himself. If the court determines that the defendant cannot be released without danger to others or to himself, it shall order him committed to a proper state mental institution or to a private mental institution approved by the court for custody, care, and treatment. If the court determines that the defendant can be discharged or released on probation

without danger to others or to himself, the court shall either order his discharge, or order his release on probation subject to specified conditions for a fixed or an indeterminate period. The court shall assign written findings of fact and conclusions of law; however, the assignment of reasons shall not delay the implementation of judgment.

Art. 654.1. Information required prior to admission

No superintendent of a mental institution shall admit a defendant found not guilty by reason of insanity pursuant to Article 654 unless the court furnishes the following information:

(1) The defendant's commitment order specifying not guilty by reason of insanity.

(2) A copy of the defendant's criminal history record.

(3) A police report concerning the charged offense.

(4) Victim and witness statements, if any.

(5) The name, address, and telephone number of the district attorney who prosecuted the defendant.

Art. 655. Application for discharge or release on probation; review panel

A. When the superintendent of a mental institution is of the opinion that a person committed pursuant to Article 654 can be discharged or can be released on probation, without danger to others or to himself, he shall recommend the discharge or release of the person in a report to a review panel comprised of the person's treating physician, the clinical director of the facility to which the person is committed, and a physician or psychologist who served on the sanity commission which recommended commitment of the person. If any member of the panel is unable to serve, a physician or a psychologist engaged in the practice of clinical or counseling psychology with at least three years' experience in the field of mental health shall be appointed by the remaining members. The panel shall review all reports received promptly. After review, the panel shall make a recommendation to the court by which the person was committed as to the person's mental condition and whether he can be discharged, conditionally or unconditionally, or placed on probation, without being a danger to others or himself. If the review panel recommends to the court that the person be discharged, conditionally or unconditionally, or placed on

probation, the court shall conduct a contradictory hearing following notice to the district attorney.

B. A person committed pursuant to Article 654 may make application to the review panel for discharge or for release on probation. Such application by a committed person may not be filed until the committed person has been confined for a period of at least six months after the original commitment. If the review panel recommends to the court that the person be discharged, conditionally or unconditionally, or placed on probation, the court shall conduct a hearing following notice to the district attorney. If the recommendation of the review panel or the court is adverse, the applicant shall not be permitted to file another application until one year has elapsed from the date of determination.

C. The superintendent of the mental institution shall, under both Paragraphs A and B of this article, transmit a copy of this report and recommendation to the person committed or his attorney and to the district attorney of the parish from which the person was committed.

Art. 656. Additional mental examinations

A. Upon receipt of the superintendent's report, filed in conformity with Article 655, the review panel may examine the committed person and report, to the court promptly, whether he can be safely discharged, conditionally or unconditionally, or be safely released on probation, without danger to others or to himself.

B. The committed person or the district attorney may also retain a physician to examine the committed person for the same purpose. The physician's report shall be filed with the court.

C. Upon receipt by the superintendent of the state hospital or other treatment facility to which the person has been committed of the recommendation of the hospital-based treatment team that the person is appropriate for probated outpatient status as set forth in this Chapter, the superintendent shall

immediately forward such recommendation to the administrator of the conditional release program, together with the proposed aftercare plans. The administrator or a designee shall submit to the review panel a recommended plan, if appropriate, for outpatient supervision and monitoring. The plan shall set forth any additional terms and conditions to be followed during outpatient status, if recommended.

Art. 657. Discharge or release; hearing

After considering the report or reports filed pursuant to Articles 655 and 656, the court may either continue the commitment or hold a contradictory hearing to determine whether the committed person is no longer mentally ill as defined by R.S. 28:2(14) and can be discharged, or can be released on probation, without danger to others or to himself as defined by R.S. 28:2(3) and (4). At the hearing the burden shall be upon the state to seek continuance of the confinement by proving by clear and convincing evidence that the committed person is currently both mentally ill and dangerous. After the hearing, and upon filing written findings of fact and conclusions of law, the court may order the committed person discharged, released on probation subject to specified conditions for a fixed or an indeterminate period, or recommitted to the state mental institution. A copy of the judgment and order containing the written findings of fact and conclusions of law shall be forwarded to the administrator of the forensic facility. Notice to the counsel for the committed person and the district attorney of the contradictory hearing shall be given at least thirty days prior to the hearing.

Art. 657.1. Conditional release; criteria

A. At any time the court considers a recommendation from the hospital-based review panel that the person may be discharged or released on probation, it may place the insanity acquittee on conditional release if it finds the following:

(1) Based on the factors which the court shall consider pursuant to Article 657, he does not need inpatient hospitalization but needs outpatient treatment, supervision, and monitoring to prevent his condition from deteriorating to a degree that he would likely become dangerous to self and others.

(2) Appropriate outpatient treatment, supervision, and monitoring are reasonably available.

(3) There is significant reason to believe that the insanity acquittee, if

conditionally released, would comply with the conditions specified.

(4) Conditional release will not present an undue risk of danger to others or self, as defined in R.S. 28:2(3) and (4).

B. The court shall subject a conditionally released insanity acquittee to such orders and conditions it deems will best meet the acquittee's need for treatment, supervision, and monitoring and will best serve the interests of justice and society.

C. These provisions for conditional release may also be applied to discharges of pretrial defendants found unrestorably incompetent to proceed pursuant to Article 648(B).

Art. 657.2. Conditional release; additional requirements

A. Upon an application for conditional release of a person, who has been committed to a state hospital or other treatment facility pursuant to this Chapter upon the grounds that the adverse effects of a mental illness are in remission, and if after a hearing the court determines that the applicant will not likely be a danger to others or himself, as defined in R.S. 28:2(3) and (4), if he is under supervision and his treatment is monitored in the community, the court shall not consider the applicant to be in stable remission from the adverse effects of a mental illness until the applicant is placed with an appropriate forensic conditional release program for at least one year but not more than five years.

B. For good cause shown, placement in a conditional release program may be extended after five years in one-year increments at a yearly contradictory hearing with the state.

C. All or a substantial portion of the program shall include outpatient treatment, supervision, and monitoring.

D. At the termination of conditional release, the person may continue to receive appropriate treatment services, if recommended by the treating psychiatrist, from public or private mental health agencies, with inactive supervision provided by the division of probation and parole of the Department of Public Safety and Corrections.

Art. 658. Probation; conditional release; reporting

A. When the committed person is released on probation, which shall also be known as conditional release, the clerk of court shall deliver to him a certificate setting forth the period and the conditions of his probation. It shall be a condition of every such probation that the person released shall be recommitted if he becomes dangerous to others or to himself for reasons of mental illness, substance abuse, or mental retardation. The probationer shall be required to agree in writing to the conditions of his probation.

B. (1) The probationer shall be under the supervision of the division of probation and parole. When the probationer violates or is about to violate the conditions of his probation, he may be arrested and detained in conformity with the applicable provisions of Article 899.

(2) The Department of Health and Hospitals shall be responsible for the

community treatment and monitoring of persons placed on outpatient status under this Chapter. These services shall be available on a parish or regional basis. The department may provide treatment services directly or through contracts with private providers or local jurisdictions.

(3) The department shall designate for each parish or for each region comprised of two or more parishes a conditional release program coordinator, who shall be responsible for the provisions specified in this Chapter. The coordinator shall monitor the forensic aftercare provider's implementation of the conditional release order and the forensic aftercare provider's submission to the court of written reports on the acquittee's progress, adjustment in the community, and compliance with the order no less frequently than ninety days after admission to the program and every one hundred eighty days thereafter.

(4) If a person on conditional release or otherwise probated under this Chapter is in need of acute, i.e. short-term, hospitalization and is not charged with a new criminal offense, he may be voluntarily admitted pursuant to R.S. 28:52 or admitted by emergency certificate pursuant to R.S. 28:53 to the Feliciana

Forensic Facility or to another suitable treatment facility, with subsequent notice to the court. Transportation to and from the receiving hospital may be effected by the Feliciana Forensic Facility or the sheriff of the parish of incarceration. Hospital discharge of the person under this provision shall be at the discretion of the clinical director of the facility and a hospital admission pursuant to this provision will not be grounds for revocation or recommitment under Subparagraph C(4) of this Article. However, the discharge of a person based on the need for indefinite hospitalization or noncompliance with treatment recommendations shall be grounds for revocation or recommitment.

(5) The division of probation and parole or the Department of Health and Hospitals through the conditional release program coordinator or a designee shall immediately notify the court of any substantive violations or imminent violations of the conditions of a person's probated release and shall present recommendations to the court regarding whether the court should revoke the probation and recommit the probationer to a state mental institution or other recommendations as may be appropriate.

(6) The court, on its own motion or that of the district attorney or probation officer, or upon receiving a report recommending revocation or other disposition from the conditional release program coordinator, may cause the person to be arrested, if he is not already in custody, and shall immediately hold a hearing to consider the violations listed or transfer the case to the parish of commitment, if different from that of the arrest, at which place the hearing should be held as soon as possible.

C. If the court determines that there has been a violation or that the probationer was about to violate the conditions of release or probation it may do any of the following:

(1) Reprimand and warn the probationer.

(2) Order that supervision be intensified.

(3) Modify or add additional conditions to the probation.

(4) Revoke the probation and recommit the probationer to a state mental institution, subject to consideration for discharge or release on probation only after one year has elapsed from the date of revocation and in accordance with the procedure prescribed in Articles 655 through 657 for a first application and hearing. If the probation is revoked and the probationer recommitted, the court shall provide the hospital with the report of the probation officer or forensic aftercare provider regarding the details of the violations involved.

D. The court may completely discharge the probationer after the expiration of one year in a supervised conditional release program only on recommendation of the director of the division of probation and parole or the administrator of the conditional release program or on other proper evidence of expected outpatient compliance with any continued treatment recommendations, and after a contradictory hearing with the district attorney.

E. No person who is on outpatient conditional release status pursuant to this Chapter shall leave this state without first obtaining written approval to do so from the director of the division of probation and parole and the administrator of the conditional release program. Any person who violates the provisions of this Paragraph may be fined not more than one thousand dollars or imprisoned with or without hard labor for not more than one year, or both.

Chapter 3. Costs

Art. 659. Costs of mental examinations prior to commitment

The fees and expenses of physicians, including coroners and other physicians in the employ of the state or its political subdivisions, appointed by a court to make a mental examination and report prior to commitment shall be fixed by the court in an amount not less than the fees set forth in R.S. 33:1556 and shall be paid by the parish where the prosecution was instituted. The fee paid to the coroner or other physician in the employ of the state shall be in addition to his salary. Use of the facilities of a state mental institution in making the mental examination shall be without cost to the parish.

Art. 660. Institutional costs after commitment

The custody, care, and treatment of a defendant committed under the provisions of this Title, and mental examinations and reports subsequent thereto by physicians on the medical staff of the institution, shall be without cost to the parish from which the defendant was committed. When a physician on the medical staff of the institution is called to testify at a hearing or trial concerning a mental examination made by him, he shall be entitled to a reasonable expert witness fee to be fixed by the court, and to reimbursement for traveling expenses in conformity with law, with such fees and expenses to be paid by the parish where the prosecution was instituted.