Ā§706-607Ā  Civil commitment in lieu ofprosecution or of sentence.Ā  (1)Ā  When a person prosecuted for a class Cfelony, misdemeanor, or petty misdemeanor is a chronic alcoholic, narcoticaddict, or person suffering from mental abnormality and the person is subjectby law to involuntary hospitalization for medical, psychiatric, or otherrehabilitative treatment, the court may order such hospitalization and dismissthe prosecution.Ā  The order of involuntary hospitalization may be made afterconviction, in which event the court may set aside the verdict or judgment ofconviction and dismiss the prosecution.

(2)Ā  The court shall not make an order undersubsection (1) unless it is of the view that it will substantially further therehabilitation of the defendant and will not jeopardize the protection of thepublic. [L 1972, c 9, pt of Ā§1]

 

COMMENTARY ON Ā§706-607

 

Ā  This section extends the concept of involuntaryhospitalization in the penal context beyond its classic use in cases ofirresponsible defendants.[1] Ā The section does not itself create the authorityfor the involuntary hospitalization of certain types of offenders, but ratherit acknowledges that where the defendant is subject by law to involuntaryhospitalization, the court may order the hospitalization in lieu of prosecutionor sentence.Ā  In the terminology of the Model Penal Code:

Ā  This section does not authorizecivil commitment in any case but rather pre-supposes that authority for thecommitment is otherwise conferred by law.Ā  Only in that event is the commitmentauthorized in lieu of sentence.[2]

Ā  The Code allows the court, in its discretion, to orderhospitalization in three limited situations: where a person prosecuted for aclass C felony or lesser grade of crime is (1) a chronic alcoholic, (2) anarcotic addict, or (3) a person suffering from a mental abnormality notamounting to an excusing condition under Chapter 704.Ā  The commitment in eachcase is to a medical institution for rehabilitative treatment.

Ā  The section is in accord with the trend of the law favoringmedical and para-medical incarceration rather than incarceration which islargely, but not solely, punitive.[3]

Ā  It should be noted that the section is not restricted tocrimes directly related to the defendant's physical or mental condition.Ā Rather, the court is empowered to order hospitalization, if authorized by civillaw, in cases where the crime is only tangentially related to the defendant'sabnormality.

...[W]hen themethod of subjecting narcotic users to treatment is commitment, it makes smallsense to deny that authority if the addict is not guilty of possession merelybut has also committed a larceny, for example, to find the means for gettinghis supply.[4]

The same example might be used in the case of chronic alcoholics.

Ā  Subsection (2) provides a statutory guideline for theexercise of judicial discretion.Ā  The court should, of course, refrain fromordering civil commitment unless such commitment will substantially further therehabilitation of the defendant without jeopardizing the protection of thepublic.

Ā  Finally, it should be noted that this section is not a self-executing one.Ā  It does not solve the difficult problem of determining in whatcases of physical or mental illness or abnormality involuntary hospitalizationought to be authorized.Ā  The resolution of that question can only result from acomplete reevaluation of the laws authorizing involuntary hospitalization.

 

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Ā§706-607 Commentary:

 

1.Ā  Cf. Chapter 704.

 

2.Ā  M.P.C., Proposed Official Draft 105 (1962).

 

3.Ā  See H.R.S., Chapter 334, as amended.

 

4.Ā  M.P.C., Tentative Draft No. 2, comments at 31 (1954).