2013 Maryland Code
CORRECTIONAL SERVICES
§ 3-904 - Incompetent inmate

§3-904.

(a) (1) In this section the following words have the meanings indicated.

(2) “Incompetent” means the state of mind of an inmate who, as a result of a mental disorder or mental retardation, lacks awareness:

(i) of the fact of the inmate’s impending execution; and

(ii) that the inmate is to be executed for the crime of murder.

(3) “Inmate” means an individual who has been convicted of murder and sentenced to death.

(b) An inmate is not incompetent under this section merely because the inmate’s competence depends on continuing treatment, including the use of medication.

(c) The State may not execute a sentence of death against an inmate who has become incompetent.

(d) (1) A petition that alleges that an inmate is incompetent and that seeks to revoke a warrant of execution against the inmate may be filed by:

(i) the inmate;

(ii) if the inmate is represented by counsel, counsel for the inmate; or

(iii) if the inmate is not represented by counsel, any other person on the inmate’s behalf.

(2) The petition shall be filed in the circuit court of the county in which the inmate is confined.

(3) On the filing of the petition, the court may stay any warrant of execution that was previously issued and has not yet expired.

(4) The petition must be accompanied by an affidavit of at least one psychiatrist that:

(i) is based, at least in part, on personal examination;

(ii) states that in the psychiatrist’s medical opinion the inmate is incompetent; and

(iii) states the pertinent facts on which the opinion is based.

(5) A copy of the petition shall be served on the Attorney General and the Office of the State’s Attorney that prosecuted the inmate, in accordance with the service requirements of the Maryland Rules.

(6) Unless the inmate is already represented by counsel, the court promptly shall appoint the public defender or, if the public defender for good cause declines representation, other counsel to represent the inmate in the proceeding.

(7) Unless the State’s Attorney stipulates to the inmate’s incompetence, the State’s Attorney shall cause the inmate to be examined and evaluated by one or more psychiatrists selected by the State’s Attorney.

(8) If the inmate’s request is reasonable and timely made, an inmate is entitled to be independently examined by a psychiatrist that the inmate selects.

(9) Unless, with the court’s approval, the parties waive a hearing, the administrative judge of the court shall designate a time for an evidentiary hearing to determine the inmate’s competence.

(e) (1) A hearing under this section shall be held without a jury:

(i) in court;

(ii) at the place where the inmate is confined; or

(iii) at another convenient place.

(2) At the hearing, the inmate:

(i) subject to reasonable restrictions related to the inmate’s condition, may be present;

(ii) through counsel, may offer evidence, cross-examine witnesses against the inmate, and make argument; and

(iii) has the burden of establishing incompetence by a preponderance of the evidence.

(f) The court shall enter an order that:

(1) declares the inmate to be competent or incompetent; and

(2) states the findings on which the declaration is based.

(g) If the court finds the inmate to be competent, the court immediately:

(1) shall lift any stay of a warrant of execution that was previously issued and has not yet expired; or

(2) if all previously issued warrants of execution have expired, shall notify the court that imposed the sentence of death and request that the court issue a new warrant of execution.

(h) (1) If the court finds the inmate to be incompetent, the court shall:

(i) stay any warrant of execution that was previously issued and has not yet expired; and

(ii) remand the case to the court in which the sentence of death was imposed.

(2) The court in which the sentence of death was imposed shall strike the sentence of death and enter in its place a sentence of life imprisonment without the possibility of parole.

(3) The sentence of life imprisonment without the possibility of parole imposed under paragraph (2) of this subsection is mandatory and may not be suspended wholly or partly.

(i) (1) There is no right of appeal from an order issued by a circuit court under this section.

(2) Notwithstanding paragraph (1) of this subsection, either party may seek review in the Court of Appeals by filing an application for leave to appeal in accordance with the Maryland Rules.

(3) If an application for leave to appeal is filed, the Court of Appeals may stay any warrant of execution that was previously issued and has not yet expired.

(j) (1) Not earlier than 6 months after a finding of competence, the inmate may petition the court for a redetermination of competence.

(2) The petition must be accompanied by an affidavit of at least one psychiatrist that:

(i) is based, at least in part, on personal examination;

(ii) states that in the psychiatrist’s medical opinion the inmate is incompetent;

(iii) states that the incompetence arose since the previous finding of competence; and

(iv) states the pertinent facts on which each opinion is based, including the facts that show the change in the inmate’s condition since the previous finding.

(3) Proceedings on a petition under this subsection shall be in accordance with subsections (d) through (i) of this section.

(k) The Maryland Rules shall govern:

(1) the form of petitions and all other pleadings; and

(2) except as otherwise provided in this section, the procedures to be followed by the circuit court in determining competency or incompetency and by the Court of Appeals in reviewing applications for leave to appeal.

(l) This section does not affect the power of the Governor to stay execution of a sentence of death under § 3-902(f) of this subtitle or to commute a sentence of death under § 7-601 of this article.