2013 Hawaii Revised Statutes
TITLE 37. HAWAII PENAL CODE
704. Penal Responsibility and Fitness to Proceed
704-412 Committed person; application for conditional release or discharge; by the director of health; by the person.

§704-412 Committed person; application for conditional release or discharge; by the director of health; by the person. (1) After the expiration of at least ninety days following an original order of commitment pursuant to section 704-411(1)(a), or after the expiration of at least sixty days following the revocation of conditional release pursuant to section 704-413, if the director of health is of the opinion that the person committed is still affected by a physical or mental disease, disorder, or defect and may be granted conditional release or discharged without danger to self or to the person or property of others or that the person is no longer affected by a physical or mental disease, disorder, or defect, the director shall make an application for either the conditional release or discharge of the person, as appropriate. In such a case, the director shall submit a report to the court by which the person was ordered committed and shall transmit copies of the application and report to the prosecuting attorney of the county from which the person was committed and to the person committed.

(2) After the expiration of ninety days from the date of the order of commitment pursuant to section 704-411, or after the expiration of sixty days following the revocation of conditional release pursuant to section 704-413, the person committed may apply to the court from which the person was committed for an order of discharge upon the ground that the person is no longer affected by a physical or mental disease, disorder, or defect. The person committed may apply for conditional release or discharge upon the ground that, though still affected by a physical or mental disease, disorder, or defect, the person may be released without danger to self or to the person or property of others. A copy of the application shall be transmitted to the prosecuting attorney of the county from which the person was committed. If the court denies the application, the person shall not be permitted to file another application for either conditional release or discharge until one year after the date of the hearing held on the immediate prior application.

(3) Upon application to the court by either the director of health or the person committed, the court shall complete the hearing process and render a decision within sixty days of the application; provided that for good cause the court may extend the sixty-day time frame upon the request of the director of health or the person committed. [L 1972, c 9, pt of §1; am L 2006, c 230, §11; am L 2008, c 100, §4; am L 2009, c 127, §3]

COMMENTARY ON §704-412

This section provides that the continued custody of a person who has been committed following a qualified acquittal shall depend on whether he can be discharged or conditionally released without danger to himself or to the person or property of others. The criterion is not whether continued hospitalization is medically indicated or whether the committed person has been restored to physical or mental health according to laws governing other forms of commitment. The criterion is dangerousness. The necessity of avoiding confusion here is paramount. In the case of the defendant acquitted on the basis of mental disease, it has been pointed out that:

Although his mental disease may have greatly improved, such person may still be dangerous because of factors in his personality and background other than mental disease. Also, such a standard [dangerousness] provides a possible means for control of the occasional defendant who may be quite dangerous but who successfully feigned mental disease to gain an acquittal.[1]

The section also provides for the procedure to be followed in making the application, whether application is made by the director of health or by the committed person. The requirement of notice to the prosecuting attorney and to the defendant (if application is made by the director) and the independent examination provided by §704-414 are designed to protect both the public and the committed person.

Previous Hawaii law provided that a person committed because of lack of criminal responsibility was to be "discharged by a circuit court or judge upon proof of termination of his insanity."[2] The Code focuses on the relevant criterion and specifically provides for procedures which adequately safeguard the interest of the public and the committed person.

SUPPLEMENTAL COMMENTARY ON §704-412

Section 412(2) of the Proposed Draft of the Code provided for a "waiting period" of one year from the date of the order of commitment pursuant to §704-411 before the committed person could apply to the court for an order of discharge or conditional release. The Legislature reduced the waiting period to ninety days. The Conference Committee said: "Your Committee, after thorough consideration, finds that a one year period is too long and that the term of this period is not sufficiently related to the psychiatric facts upon which discharge or conditional release turn." Conference Committee Report No. 2 (1972).

Act 230, Session Laws 2006, amended this section to ensure that the person's physical or mental disease, disorder, or defect is considered in commitment and release provisions. House Standing Committee Report No. 665-06.

Act 100, Session Laws 2008, provided for the application for the conditional release or discharge from hospitalization of a committed person after [the expiration of] sixty days following the revocation of conditional release. Conference Committee Report No. 37-08.

Act 127, Session Laws 2009, amended this section by setting a sixty-day deadline for judicial decisions on motions for conditional release or discharge, while providing for an extension if necessary. House Standing Committee Report No. 1595, Senate Standing Committee Report No. 533.

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§704-412 Commentary:

1. M.P.C., Tentative Draft No. 4, comments at 199 (1955).

2. H.R.S. §711-94.