552.040. Definitions--acquittal based on mental disease or defect, commitment to state hospital required--immediate conditional release--conditional or unconditional release, when--prior commitment, a - Missouri Statutes

Definitions--acquittal based on mental disease or defect, commitmentto state hospital required--immediate conditionalrelease--conditional or unconditional release, when--priorcommitment, authority to revoke--applications for release,notice, burden of persuasion, criteria--hearings required,when--denial, reapplication--escape, notice--additional criteriafor release.

552.040. 1. For the purposes of this section, the following wordsmean:

(1) "Prosecutor of the jurisdiction", the prosecuting attorney in acounty or the circuit attorney of a city not within a county;

(2) "Secure facility", a state mental health facility, state mentalretardation facility, private facility under contract with the departmentof mental health, or a section within any of these facilities, in whichpersons committed to the department of mental health pursuant to thischapter, shall not be permitted to move about the facility or section ofthe facility, nor to leave the facility or section of the facility, withoutapproval by the head of the facility or such head's designee and adequatesupervision consistent with the safety of the public and the person'streatment, habilitation or rehabilitation plan;

(3) "Tried and acquitted" includes both pleas of mental disease ordefect excluding responsibility that are accepted by the court andacquittals on the ground of mental disease or defect excludingresponsibility following the proceedings set forth in section 552.030.

2. When an accused is tried and acquitted on the ground of mentaldisease or defect excluding responsibility, the court shall order suchperson committed to the director of the department of mental health forcustody. The court shall also order custody and care in a state mentalhealth or retardation facility unless an immediate conditional release isgranted pursuant to this section. If the accused has not been charged witha dangerous felony as defined in section 556.061, RSMo, or with murder inthe first degree pursuant to section 565.020, RSMo, or sexual assaultpursuant to section 566.040, RSMo, or the attempts thereof, and theexamination contains an opinion that the accused should be immediatelyconditionally released to the community by the court, the court shall holda hearing to determine if an immediate conditional release is appropriatepursuant to the procedures for conditional release set out in subsections10 to 14 of this section. Prior to the hearing, the court shall direct thedirector of the department of mental health, or the director's designee, tohave the accused examined to determine conditions of confinement inaccordance with subsection 4 of section 552.020. The provisions ofsubsection 16 of this section shall be applicable to defendants granted animmediate conditional release and the director shall honor the immediateconditional release as granted by the court. If the court determines thatan immediate conditional release is warranted, the court shall order theperson committed to the director of the department of mental health beforeordering such a release. The court granting the immediate conditionalrelease shall retain jurisdiction over the case for the duration of theconditional release. This shall not limit the authority of the director ofthe department of mental health or the director's designee to revoke theconditional release or the trial release of any committed person pursuantto subsection 17 of this section. If the accused is committed to a mentalhealth or mental retardation facility, the director of the department ofmental health, or the director's designee, shall determine the time, placeand conditions of confinement.

3. The provisions of sections 630.110, 630.115, 630.130, 630.133,630.135, 630.140, 630.145, 630.150, 630.180, 630.183, 630.192, 630.194,630.196, 630.198, 630.805, 632.370, 632.395, and 632.435, RSMo, shall applyto persons committed pursuant to subsection 2 of this section. If thedepartment does not have a treatment or rehabilitation program for a mentaldisease or defect of an individual, that fact may not be the basis for arelease from commitment. Notwithstanding any other provision of law to thecontrary, no person committed to the department of mental health who hasbeen tried and acquitted by reason of mental disease or defect as providedin section 552.030 shall be conditionally or unconditionally releasedunless the procedures set out in this section are followed. Upon requestby an indigent committed person, the appropriate court may appoint theoffice of the public defender to represent such person in any conditionalor unconditional release proceeding under this section.

4. Notwithstanding section 630.115, RSMo, any person committedpursuant to subsection 2 of this section shall be kept in a secure facilityuntil such time as a court of competent jurisdiction enters an ordergranting a conditional or unconditional release to a nonsecure facility.

5. The committed person or the head of the facility where the personis committed may file an application in the court that committed the personseeking an order releasing the committed person unconditionally; exceptthat any person who has been denied an application for a conditionalrelease pursuant to subsection 13 of this section shall not be eligible tofile for an unconditional release until the expiration of one year fromsuch denial. In the case of a person who was immediately conditionallyreleased after being committed to the department of mental health, thereleased person or the director of the department of mental health, or thedirector's designee, may file an application in the same court thatreleased the committed person seeking an order releasing the committedperson unconditionally. Copies of the application shall be servedpersonally or by certified mail upon the head of the facility unless thehead of the facility files the application, the committed person unless thecommitted person files the application, or unless the committed person wasimmediately conditionally released, the director of the department ofmental health, and the prosecutor of the jurisdiction where the committedperson was tried and acquitted. Any party objecting to the proposedrelease must do so in writing within thirty days after service. Within areasonable period of time after any written objection is filed, whichperiod shall not exceed sixty days unless otherwise agreed upon by theparties, the court shall hold a hearing upon notice to the committedperson, the head of the facility, if necessary, the director of thedepartment of mental health, and the prosecutor of the jurisdiction wherethe person was tried. Prior to the hearing any of the parties, uponwritten application, shall be entitled to an examination of the committedperson, by a psychiatrist or psychologist, as defined in section 632.005,RSMo, or a physician with a minimum of one year training or experience inproviding treatment or services to mentally retarded or mentally illindividuals of its own choosing and at its expense. The report of themental condition of the committed person shall accompany the application.By agreement of all parties to the proceeding any report of the mentalcondition of the committed person which may accompany the application forrelease or which is filed in objection thereto may be received by evidence,but the party contesting any opinion therein shall have the right to summonand to cross-examine the examiner who rendered such opinion and to offerevidence upon the issue.

6. By agreement of all the parties and leave of court, the hearingmay be waived, in which case an order granting an unconditional releaseshall be entered in accordance with subsection 8 of this section.

7. At a hearing to determine if the committed person should beunconditionally released, the court shall consider the following factors inaddition to any other relevant evidence:

(1) Whether or not the committed person presently has a mentaldisease or defect;

(2) The nature of the offense for which the committed person wascommitted;

(3) The committed person's behavior while confined in a mental healthfacility;

(4) The elapsed time between the hearing and the last reportedunlawful or dangerous act;

(5) Whether the person has had conditional releases without incident;and

(6) Whether the determination that the committed person is notdangerous to himself or others is dependent on the person's taking drugs,medicine or narcotics.The burden of persuasion for any person committed to a mental healthfacility under the provisions of this section upon acquittal on the groundsof mental disease or defect excluding responsibility shall be on the partyseeking unconditional release to prove by clear and convincing evidencethat the person for whom unconditional release is sought does not have, andin the reasonable future is not likely to have, a mental disease or defectrendering the person dangerous to the safety of himself or others.

8. The court shall enter an order either denying the application forunconditional release or granting an unconditional release. An orderdenying the application shall be without prejudice to the filing of anotherapplication after the expiration of one year from the denial of the lastapplication.

9. No committed person shall be unconditionally released unless it isdetermined through the procedures in this section that the person does nothave, and in the reasonable future is not likely to have, a mental diseaseor defect rendering the person dangerous to the safety of himself orothers.

10. The committed person or the head of the facility where the personis committed may file an application in the court having probatejurisdiction over the facility where the person is detained for a hearingto determine whether the committed person shall be released conditionally.In the case of a person committed to a mental health facility uponacquittal on the grounds of mental disease or defect excludingresponsibility for a dangerous felony as defined in section 556.061, RSMo,murder in the first degree pursuant to section 565.020, RSMo, or sexualassault pursuant to section 566.040, RSMo, any such application shall befiled in the court that committed the person. In such cases, jurisdictionover the application for conditional release shall be in the committingcourt. In the case of a person who was immediately conditionally releasedafter being committed to the department of mental health, the releasedperson or the director of the department of mental health, or thedirector's designee, may file an application in the same court thatreleased the person seeking to amend or modify the existing release. Theprocedures for application for unconditional releases set out in subsection5 of this section shall apply, with the following additional requirements:

(1) A copy of the application shall also be served upon theprosecutor of the jurisdiction where the person is being detained, unlessthe released person was immediately conditionally released after beingcommitted to the department of mental health, or unless the application wasrequired to be filed in the court that committed the person in which case acopy of the application shall be served upon the prosecutor of thejurisdiction where the person was tried and acquitted and the prosecutor ofthe jurisdiction into which the committed person is to be released;

(2) The prosecutor of the jurisdiction where the person was tried andacquitted shall use their best efforts to notify the victims of dangerousfelonies. Notification by the appropriate person or agency by certifiedmail to the most current address provided by the victim shall constitutecompliance with the victim notification requirement of this section;

(3) The application shall specify the conditions and duration of theproposed release;

(4) The prosecutor of the jurisdiction where the person is beingdetained shall represent the public safety interest at the hearing unlessthe prosecutor of the jurisdiction where the person was tried and acquitteddecides to appear to represent the public safety interest. If theapplication for release was required to be filed in the committing court,the prosecutor of the jurisdiction where the person was tried and acquittedshall represent the public safety interest. In the case of a person whowas immediately conditionally released after being committed to thedepartment of mental health, the prosecutor of the jurisdiction where theperson was tried and acquitted shall appear and represent the public safetyinterest.

11. By agreement of all the parties, the hearing may be waived, inwhich case an order granting a conditional release, stating the conditionsand duration agreed upon by all the parties and the court, shall be enteredin accordance with subsection 13 of this section.

12. At a hearing to determine if the committed person should beconditionally released, the court shall consider the following factors inaddition to any other relevant evidence:

(1) The nature of the offense for which the committed person wascommitted;

(2) The person's behavior while confined in a mental health facility;

(3) The elapsed time between the hearing and the last reportedunlawful or dangerous act;

(4) The nature of the person's proposed release plan;

(5) The presence or absence in the community of family or otherswilling to take responsibility to help the defendant adhere to theconditions of the release; and

(6) Whether the person has had previous conditional releases withoutincident.The burden of persuasion for any person committed to a mental healthfacility under the provisions of this section upon acquittal on the groundsof mental disease or defect excluding responsibility shall be on the partyseeking release to prove by clear and convincing evidence that the personfor whom release is sought is not likely to be dangerous to others while onconditional release.

13. The court shall enter an order either denying the application fora conditional release or granting conditional release. An order denyingthe application shall be without prejudice to the filing of anotherapplication after the expiration of one year from the denial of the lastapplication.

14. No committed person shall be conditionally released until it isdetermined that the committed person is not likely to be dangerous toothers while on conditional release.

15. If, in the opinion of the head of a facility where a committedperson is being detained, that person can be released without danger toothers, that person may be released from the facility for a trial releaseof up to ninety-six hours under the following procedure:

(1) The head of the facility where the person is committed shallnotify the prosecutor of the jurisdiction where the committed person wastried and acquitted and the prosecutor of the jurisdiction into which thecommitted person is to be released at least thirty days before the date ofthe proposed trial release;

(2) The notice shall specify the conditions and duration of therelease;

(3) If no prosecutor to whom notice is required objects to the trialrelease, the committed person shall be released according to conditions andduration specified in the notice;

(4) If any prosecutor objects to the trial release, the head of thefacility may file an application with the court having probate jurisdictionover the facility where the person is detained for a hearing under theprocedures set out in subsections 5 and 10 of this section with thefollowing additional requirements:

(a) A copy of the application shall also be served upon theprosecutor of the jurisdiction into which the committed person is to bereleased; and

(b) The prosecutor or prosecutors who objected to the trial releaseshall represent the public safety interest at the hearing; and

(5) The release criteria of subsections 12 to 14 of this sectionshall apply at such a hearing.

16. The department shall provide or shall arrange for follow-up careand monitoring for all persons conditionally released under this sectionand shall make or arrange for reviews and visits with the client at leastmonthly, or more frequently as set out in the release plan, and whether theclient is receiving care, treatment, habilitation or rehabilitationconsistent with his needs, condition and public safety. The departmentshall identify the facilities, programs or specialized services operated orfunded by the department which shall provide necessary levels of follow-upcare, aftercare, rehabilitation or treatment to the persons in geographicalareas where they are released.

17. The director of the department of mental health, or thedirector's designee, may revoke the conditional release or the trialrelease and request the return of the committed person if such director orcoordinator has reasonable cause to believe that the person has violatedthe conditions of such release. If requested to do so by the director orcoordinator, a peace officer of a jurisdiction in which a patient onconditional release is found shall apprehend and return such patient to thefacility. No peace officer responsible for apprehending and returning thecommitted person to the facility upon the request of the director orcoordinator shall be civilly liable for apprehending or transporting suchpatient to the facility so long as such duties were performed in good faithand without negligence. If a person on conditional release is returned toa facility under the provisions of this subsection, a hearing shall be heldwithin ninety-six hours, excluding Saturdays, Sundays and state holidays,to determine whether the person violated the conditions of the release orwhether resumption of full-time hospitalization is the least restrictivealternative consistent with the person's needs and public safety. Thedirector of the department of mental health, or the director's designee,shall conduct the hearing. The person shall be given notice at leasttwenty-four hours in advance of the hearing and shall have the right tohave an advocate present.

18. At any time during the period of a conditional release or trialrelease, the court which ordered the release may issue a notice to thereleased person to appear to answer a charge of a violation of the terms ofthe release and the court may issue a warrant of arrest for the violation.Such notice shall be personally served upon the released person. Thewarrant shall authorize the return of the released person to the custody ofthe court or to the custody of the director of mental health or thedirector's designee.

19. The head of a mental health facility, upon any notice that acommitted person has escaped confinement, or left the facility or itsgrounds without authorization, shall immediately notify the prosecutor andsheriff of the county wherein the committed person is detained of theescape or unauthorized leaving of grounds and the prosecutor and sheriff ofthe county where the person was tried and acquitted.

20. Any person committed to a mental health facility under theprovisions of this section upon acquittal on the grounds of mental diseaseor defect excluding responsibility for a dangerous felony as defined insection 556.061, RSMo, murder in the first degree pursuant to section565.020, RSMo, or sexual assault pursuant to section 566.040, RSMo, shallnot be eligible for conditional or unconditional release under theprovisions of this section unless, in addition to the requirements of thissection, the court finds that the following criteria are met:

(1) Such person is not now and is not likely in the reasonable futureto commit another violent crime against another person because of suchperson's mental illness; and

(2) Such person is aware of the nature of the violent crime committedagainst another person and presently possesses the capacity to appreciatethe criminality of the violent crime against another person and thecapacity to conform such person's conduct to the requirements of law in thefuture.

(L. 1963 p. 674 § 4, A.L. 1969 p. 572, A.L. 1980 H.B. 1724, A.L. 1985 S.B. 265, A.L. 1986 S.B. 618 & 562, A.L. 1991 H.B. 568, A.L. 1994 S.B. 763, A.L. 1996 S.B. 884 & 841, A.L. 1999 H.B. 327)

(1965) Petitioner confined in mental institution must resort to statutory procedure for judicial review of his existing mental condition before seeking federal habeas corpus. Cyronne DeVirgin v. State of Missouri, 341 F.2d 568.

(1974) Held, this section does not violate due process under 14th amendment to U.S. Const. by failing to have a hearing on mental state of defendant at time of commitment. State v. Kee (Mo.), 510 S.W.2d 477.

(1974) Held that court must be satisfied that applicant poses no danger to himself or others and that cure of mental problem had at time of commitment does not necessarily guarantee that another dangerous mental problem does not exist. A psychiatrist opinion alone is not conclusive. State v. Montague (A.), 510 S.W.2d 776.

(1977) Release under this section is solely on patient's mental condition and potential dangerousness. The fact that the patient can be given no further beneficial treatment does not of itself justify release. State v. Davee (A.), 558 S.W.2d 335.

(1991) Although statute permitted person confined to Missouri state hospital to reapply for release every one hundred eighty days, petitioner was not required to reapply for release from state hospital continually and appeal every denial in order to satisfy exhaustion requirements for federal habeas corpus relief. Kolocotronis v. Holcomb, 925 F.2d 278 (8th Cir.).

(1994) It is constitutionally permissible to place burden of proof on insanity acquittee seeking release to prove that he or she is no longer suffering from mental disease or defect rendering him or her dangerous to the safety of self or others. Trial court erred in finding section unconstitutional for placing the burden of persuasion upon the person seeking release. Styles v. State, 877 S.W.2d 113 (Mo.banc).