§706-607  Civil commitment in lieu of
prosecution or of sentence.  (1)  When a person prosecuted for a class C
felony, misdemeanor, or petty misdemeanor is a chronic alcoholic, narcotic
addict, or person suffering from mental abnormality and the person is subject
by law to involuntary hospitalization for medical, psychiatric, or other
rehabilitative treatment, the court may order such hospitalization and dismiss
the prosecution.  The order of involuntary hospitalization may be made after
conviction, in which event the court may set aside the verdict or judgment of
conviction and dismiss the prosecution.



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



 



COMMENTARY ON §706-607



 



  This section extends the concept of involuntary
hospitalization in the penal context beyond its classic use in cases of
irresponsible defendants.[1]  The section does not itself create the authority
for the involuntary hospitalization of certain types of offenders, but rather
it acknowledges that where the defendant is subject by law to involuntary
hospitalization, the court may order the hospitalization in lieu of prosecution
or sentence.  In the terminology of the Model Penal Code:



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



  The Code allows the court, in its discretion, to order
hospitalization in three limited situations: where a person prosecuted for a
class C felony or lesser grade of crime is (1) a chronic alcoholic, (2) a
narcotic addict, or (3) a person suffering from a mental abnormality not
amounting to an excusing condition under Chapter 704.  The commitment in each
case is to a medical institution for rehabilitative treatment.



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



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



...[W]hen the
method of subjecting narcotic users to treatment is commitment, it makes small
sense to deny that authority if the addict is not guilty of possession merely
but has also committed a larceny, for example, to find the means for getting
his supply.[4]



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



  Subsection (2) provides a statutory guideline for the
exercise of judicial discretion.  The court should, of course, refrain from
ordering civil commitment unless such commitment will substantially further the
rehabilitation of the defendant without jeopardizing the protection of the
public.



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



 



__________



§706-607 Commentary:



 



1.  Cf. Chapter 704.



 



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



 



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



 



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