§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.