Statutory amendments, new rule deal with defendant competency Monday, July 24, 2023
Statutory amendments, new rule deal with defendant competency
Amendments to section 12.1-04-08 of the North Dakota Century Code will take effect on Aug. 1, 2023. These amendments relate to defendants who lack fitness to proceed.
Under the amendments, new language on dismissal of certain misdemeanor proceedings will be added to the statute. In general, if the court determines that a defendant charged with a class B misdemeanor lacks fitness to proceed, the proceedings must be dismissed. The court must apply the preponderance of the evidence standard when making its determination. The proceeding may not be dismissed if the defendant is charged under N.D.C.C. chapter 12.1-17 on assaults, threats, coercion and harassment.
Additional new statutory language allows a court to refer a defendant who will not attain fitness to proceed to any services the court considers appropriate.
New Rule of Criminal Procedure 12.3 on fitness to proceed and restoration will also take effect Aug. 1. This rule is a companion to the statutory amendments. It provides for increased management in cases when a defendant may attain fitness to proceed and outlines potential services for referral when a defendant will not attain fitness to proceed.
The new statutory amendments and the rule reflect recommendations in the report of the National Judicial Task Force to Examine State Courts’ Response to Mental Illness. According to Travis Finck, Executive Director of the Commission on Legal Counsel for Indigents, a key factor in any competency case is the continued involvement of the court during the period of restoration. He said research has shown that having review sessions like those required by the new rule keep things moving in competency cases.
Under Rule 12.3 (a) the court is advised to take an active role in managing the docket in cases in which defendants are found to lack fitness to proceed.
Rule 12.3 (b) provides that a restoration status conference should be held 45 days after the commitment order and every 30 days thereafter until the review hearing takes place.
The rule requires that the review hearing be held before the expiration of the statutory restoration period, which is set out in section 12.1-04-08(1).
Section 12.1-04-07 of the North Dakota Century Code has been amended to require that an examination of a defendant who lack fitness to proceed take place “within fifteen days from receipt of the material necessary to examine the fitness of the individual.” Courts and practitioners recognize that delivery of these materials to the state hospital is sometimes a lengthy process and may delay the completion of the examination. In such a case, the restoration status conference may need to be held more than 45 days after the commitment order. The timelines under Rule 12.3 (b) are intended to be flexible to account for such possible delays.
Rule 12.3 (c) discusses referral for services when a defendant is found to lack fitness to proceed and will not attain fitness with the statutory time frame. The rule lists potential service alternatives, including appointment of a guardian or conservator, civil commitment, an outpatient treatment order, referral to mental health, veterans or drug court, or other diversion alternatives. Under the rule, the court may make a referral to any service it considers appropriate. Prior to the amendment of section 12.1-04-08, the court’s referral options were much more limited.
The August 1 amendments to section 12.1-04-08 build on earlier amendments. In 2021, new language was added to the section to set out specific timelines for suspension of the proceedings during the period of treatment. The 2021 amendments also provided standards for treatment orders, a requirement that defendants lacking fitness to proceed be represented during proceedings to determine therapy, and conditions for prosecutors seeking resumption of the proceeding.