ORS 161.327
Commitment or conditional release of person found guilty except for insanity of felony

  • consultation
  • evaluation
  • appeal
  • rules

(1)

After the defendant is found guilty except for insanity pursuant to ORS 161.319 (Form of verdict on guilty except for insanity), if the court finds by a preponderance of the evidence that a person found guilty except for insanity of a felony is affected by a qualifying mental disorder and presents a substantial danger to others, the court shall order as follows:

(a)

If the court finds that the person is not a proper subject for conditional release, the court shall order the person committed to a state hospital or, if the person is under 18 years of age, to a secure intensive community inpatient facility for custody, care and treatment. When the court orders a person committed under this paragraph, the court shall place the person under the jurisdiction of the Psychiatric Security Review Board.

(b)

If the court finds that the person can be adequately controlled with supervision and treatment if conditionally released and that necessary supervision and treatment are available, the court shall order the person conditionally released.

(2)

Intentionally left blank —Ed.

(a)

If a party intends to request conditional release under this section, the party shall, as soon as practicable, notify the opposing party, the court and the board of the request. The party requesting conditional release shall make every effort to provide the notification in a manner that allows sufficient time to carry out the provisions described in this subsection before the court determination on conditional release.

(b)

Upon receipt of a request for conditional release under this section:

(A)

If the most serious offense in the charging instrument is a Class C felony, the court shall order that a local mental health program designated by the board consult with the person to determine whether the necessary supervision and treatment for the person are available in the community and appropriate for the person and shall order the release of any records to the program director that are necessary to complete the consultation.

(B)

If the most serious offense in the charging instrument is a Class A or Class B felony, the court may order that a local mental health program designated by the board consult with the person to determine whether the necessary supervision and treatment for the person are available in the community and appropriate for the person. If the court orders the consultation, the court shall further order the release of any records to the program director that are necessary to complete the consultation.

(3)

Intentionally left blank —Ed.

(a)

If the outcome of a consultation described in subsection (2)(b) of this section indicates that the necessary supervision and treatment are available in the community and appropriate for the person, the local mental health program shall evaluate the person to determine whether the person can be adequately controlled with supervision and treatment if conditionally released, and the program director shall provide to the court and to the board a report of the findings resulting from the consultation, a report of the findings resulting from the evaluation and recommendations for treatment.

(b)

If the outcome of a consultation described in subsection (2)(b) of this section indicates that the necessary supervision and treatment for the person are not available in the community or not appropriate for the person, the program director shall submit to the court and to the board a report of the findings resulting from the consultation and may include any recommendations for treatment.

(4)

In determining whether a person should be conditionally released, the court:

(a)

May order evaluations and examinations as provided in ORS 161.336 (Conditional release by board) (3) and 161.346 (Hearings on discharge, conditional release, commitment or modification) (2) or as otherwise needed by the court;

(b)

Shall act in conformance with subsection (2)(b) of this section concerning an order for a local mental health program designated by the board to consult with the person;

(c)

Shall have as its primary concern the protection of society; and

(d)

May not order conditional release without a report from the consultation described in subsection (2)(b) of this section and the evaluation described in subsection (3)(b) of this section.

(5)

When a person is conditionally released under this section, the person is subject to those supervisory orders of the court as are in the best interests of justice, the protection of society and the welfare of the person. The court shall designate a person or state, county or local agency to supervise the person upon release, subject to those conditions as the court directs in the order for conditional release. Prior to the designation, the court shall notify the person or agency to whom conditional release is contemplated and provide the person or agency an opportunity to be heard before the court. After receiving an order entered under subsection (1)(b) of this section, the person or agency designated shall assume supervision of the person pursuant to the direction of the board. The person or agency designated as supervisor shall be required to report in writing no less than once per month to the board concerning the supervised person’s compliance with the conditions of release.

(6)

Upon placing a person on conditional release, the court shall within one judicial day provide to the board an electronic copy of the conditional release order. The court shall additionally notify the board in writing of the supervisor appointed and all other conditions of release, and the person shall be on conditional release pending hearing before the board. Upon compliance with this section, the court’s jurisdiction over the person is terminated.

(7)

The total period of commitment or conditional release under ORS 161.315 (Right of state to obtain mental examination of defendant) to 161.351 (Discharge by board) may not exceed the maximum sentence provided by statute for the crime for which the person was found guilty except for insanity.

(8)

An order of the court under this section is a final order appealable by the person found guilty except for insanity in accordance with ORS 19.205 (Appealable judgments and orders) (5). Notwithstanding ORS 19.255 (Time for service and filing of notice of appeal), notice of an appeal under this section shall be served and filed within 90 days after the order appealed from is entered in the register. The person shall be entitled on appeal to suitable counsel possessing skills and experience commensurate with the nature and complexity of the case. If the person is financially eligible, suitable counsel shall be appointed in the manner provided in ORS 138.500 (Appointment of counsel and furnishing of transcript for appellant without funds) (1), and the compensation for counsel and costs and expenses of the person necessary to the appeal shall be determined and paid as provided in ORS 138.500 (Appointment of counsel and furnishing of transcript for appellant without funds).

(9)

Following the order described in subsection (1) of this section, the court shall notify the person of the right to appeal and the right to a hearing before the board in accordance with ORS 161.336 (Conditional release by board) (5) and 161.341 (Application for discharge or conditional release) (3).

(10)

The board shall hold a review hearing within 90 days for a person conditionally released under this section.

(11)

The board shall establish by rule standards for the consultations described in subsection (2)(b) of this section and the evaluations described in subsection (3)(a) of this section. [1979 c.867 §5; 1979 c.885 §2; 1981 c.711 §2; 1981 s.s. c.3 §129; 1983 c.800 §6; 1989 c.790 §48; 1995 c.208 §1; 2001 c.962 §89; 2003 c.576 §§578,579; 2005 c.685 §§1,1a; 2009 c.595 §102; 2011 c.708 §36; 2011 c.724 §3; 2013 c.1 §9; 2017 c.442 §12; 2017 c.634 §7; 2019 c.329 §3; 2021 c.483 §1]

Source: Section 161.327 — Commitment or conditional release of person found guilty except for insanity of felony; consultation; evaluation; appeal; rules, https://www.­oregonlegislature.­gov/bills_laws/ors/ors161.­html.

Notes of Decisions

Mere need for psychiatric treatment or assistance with personal needs cannot support criminal commitment where evidence of dangerousness is lacking. State v. Rath, 46 Or App 695, 613 P2d 60 (1980); State v. LeHuquet, 54 Or App 895, 636 P2d 467 (1981)

It was proper for trial court to apply ORS 161.725 to extend maximum period of commitment of defendant to jurisdiction of Psychiatric Security Review Board. State v. Carrol, 54 Or App 445, 635 P2d 17 (1981), Sup Ct review denied

Under former version of this section, where inter alia, two mental health professionals testified that there was reasonable possibility that defendant’s condition could be activated to the point where he could be danger to himself, there was substantial evidence to support findings that defendant should remain under jurisdiction of Psychiatric Security Review Board. State v. Orans, 56 Or App 681, 642 P2d 1197 (1982)

PSRB is mandated to take jurisdiction for period that trial court determines would be maximum sentence that could have been received by defendant and has no authority to modify trial court’s determination of maximum sentence. Anderson v. PSRB, 65 Or App 69, 670 P2d 185 (1983)

Once jurisdiction passes to PSRB under this section, trial court’s jurisdiction terminates and it has no authority to place conditions on PSRB’s supervision and release of defendant. State v. Pilip, 111 Or App 649, 826 P2d 125 (1992)

Instructing jury on consequences of guilty except for insanity verdict does not deprive defendant of federal constitutional right to fair trial. State v. Amini, 175 Or App 370, 28 P3d 1204 (2001), Sup Ct review denied

Where court errs in setting period of jurisdiction, Psychiatric Security Review Board lacks authority to extend period of jurisdiction to comply with statute. Romanov v. Psychiatric Security Review Board, 179 Or App 127, 38 P3d 965 (2002)

“Maximum sentence” provided by statute for crime means statutory indeterminate maximum sentence person could have received if found guilty. State v. Brooks, 187 Or App 388, 67 P3d 426 (2003), Sup Ct review denied

In fixing length of Psychiatric Security Review Board jurisdiction over defendant based on multiple offenses, court must determine whether defendant could have received consecutive sentences under standards prescribed in ORS 137.123. State v. Brooks, 187 Or App 388, 67 P3d 426 (2003), Sup Ct review denied

Law Review Citations

23 WLR 493, 495 (1987); 29 WLR 829 (1993)

161.005
Short title
161.015
General definitions
161.025
Purposes
161.035
Application of Criminal Code
161.045
Limits on application
161.055
Burden of proof as to defenses
161.067
Determining punishable offenses for violation of multiple statutory provisions, multiple victims or repeated violations
161.085
Definitions with respect to culpability
161.095
Requirements for criminal liability
161.105
Culpability requirement inapplicable to certain violations and offenses
161.115
Construction of statutes with respect to culpability
161.125
Drug or controlled substance use or dependence or intoxication as defense
161.150
Criminal liability described
161.155
Criminal liability for conduct of another
161.160
Exclusion of defenses to criminal liability for conduct of another
161.165
Exemptions to criminal liability for conduct of another
161.170
Criminal liability of corporations
161.175
Criminal liability of an individual for corporate conduct
161.190
Justification as a defense
161.195
“Justification” described
161.200
Choice of evils
161.205
Use of physical force generally
161.209
Use of physical force in defense of a person
161.215
Limitations on use of physical force in defense of a person
161.219
Limitations on use of deadly physical force in defense of a person
161.225
Use of physical force in defense of premises
161.229
Use of physical force in defense of property
161.233
Use of physical force by peace officer
161.237
Use of physical force involving pressure on throat or neck by peace officer or corrections officer
161.242
Use of deadly physical force by peace officer
161.245
“Reasonable belief” described
161.249
Use of physical force by private person assisting an arrest
161.255
Use of physical force by private person making citizen’s arrest
161.260
Use of physical force in resisting arrest prohibited
161.265
Use of physical force by guard or peace officer employed in correctional facility
161.267
Use of physical force by corrections officer or official employed by Department of Corrections
161.270
Duress
161.275
Entrapment
161.290
Incapacity due to immaturity
161.295
Effect of qualifying mental disorder
161.300
Evidence of qualifying mental disorder admissible as to intent
161.305
Qualifying mental disorder as affirmative defense
161.309
Notice of mental defense
161.313
Jury instructions
161.315
Right of state to obtain mental examination of defendant
161.319
Form of verdict on guilty except for insanity
161.325
Finding of guilty except for insanity
161.326
Notice to victim
161.327
Commitment or conditional release of person found guilty except for insanity of felony
161.328
Commitment of person found guilty except for insanity of misdemeanor
161.329
Order of discharge
161.332
“Conditional release” defined
161.336
Conditional release by board
161.341
Application for discharge or conditional release
161.346
Hearings on discharge, conditional release, commitment or modification
161.348
Judicial review
161.349
Person committed under ORS 161.315 to 161.351 sentenced to term of incarceration
161.351
Discharge by board
161.355
Definitions
161.360
Qualifying mental disorder affecting fitness to proceed
161.362
Requirements for recommendations, determinations and orders
161.365
Procedure for determining issue of fitness to proceed
161.367
Gaining or regaining fitness
161.370
Determination of fitness to proceed
161.371
Procedures upon commitment of defendant
161.372
Involuntary administration of medication for fitness to proceed
161.373
Records for fitness to proceed examination
161.375
Escape of person placed at hospital or facility
161.385
Psychiatric Security Review Board
161.387
Board to implement policies
161.390
Rules for assignment of persons to state mental hospitals or secure intensive community inpatient facilities
161.392
Certification of psychiatrists and licensed psychologists
161.395
Subpoena power
161.397
Psychiatric Security Review Board Account
161.398
Restorative justice program
161.400
Leave of absence
161.405
“Attempt” described
161.425
Impossibility not a defense
161.430
Renunciation as a defense to attempt
161.435
Solicitation
161.440
Renunciation as defense to solicitation
161.450
“Criminal conspiracy” described
161.455
Conspiratorial relationship
161.460
Renunciation as defense to conspiracy
161.465
Duration of conspiracy
161.475
Defenses to solicitation and conspiracy
161.485
Multiple convictions barred in inchoate crimes
161.505
“Offense” described
161.515
“Crime” described
161.525
“Felony” described
161.535
Classification of felonies
161.545
“Misdemeanor” described
161.555
Classification of misdemeanors
161.566
Misdemeanor treated as violation
161.568
Misdemeanor treated as violation
161.570
Felony treated as misdemeanor
161.585
Classification of certain crimes determined by punishment
161.605
Maximum terms of imprisonment for felonies
161.610
Enhanced penalty for use of firearm during commission of felony
161.615
Maximum terms of imprisonment for misdemeanors
161.620
Sentences imposed upon waiver
161.625
Fines for felonies
161.635
Fines for misdemeanors
161.645
Standards for imposing fines
161.655
Fines for corporations
161.665
Costs
161.675
Time and method of payment of fines, restitution and costs
161.685
Effect of nonpayment of fines, restitution or costs
161.705
Reduction of certain felonies to misdemeanors
161.710
Reduction of certain felony driving offenses after completion of sentence
161.715
Standards for discharge of defendant
161.725
Standards for sentencing of dangerous offenders
161.735
Procedure for determining whether defendant dangerous
161.737
Sentence imposed on dangerous offender as departure from sentencing guidelines
161.740
Sentencing of juvenile offenders
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