2017 ORS 161.327¹
Commitment or conditional release of person found guilty except for insanity of felony
  • appeal

(1) Following the entry of a judgment 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 enter an 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) 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 Psychiatric Security Review 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.

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

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

(b) Shall order that the person be examined by a local mental health program designated by the board and a report of the examination be provided to the court if each felony for which the defendant was found guilty except for insanity is a Class C felony; and

(c) Shall have as its primary concern the protection of society.

(4) Upon placing a person on conditional release, the court shall notify the board in writing of the court’s conditional release order, 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.

(5) 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.

(6) 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).

(7) Following the entry of an 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). [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]

Note: The amendments to 161.327 (Commitment or conditional release of person found guilty except for insanity of felony) by section 12, chapter 442, Oregon Laws 2017, become operative July 1, 2018. See section 36, chapter 442, Oregon Laws 2017. The text that is operative until July 1, 2018, including amendments by section 7, chapter 634, Oregon Laws 2017, is set forth for the user’s convenience.

161.327 (Commitment or conditional release of person found guilty except for insanity of felony). (1) Following the entry of a judgment 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 enter an 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:

(A) The Psychiatric Security Review Board, if the person is a tier one offender.

(B) The Oregon Health Authority, if the person is a tier two offender.

(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) 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 Psychiatric Security Review 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.

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

(a) May order evaluations, examinations and compliance as provided in ORS 161.336 (Conditional release by board) (3) and 161.346 (Hearings on discharge, conditional release, commitment or modification) (3);

(b) Shall order that the person be examined by a local mental health program designated by the board and a report of the examination be provided to the court if each felony for which the defendant was found guilty except for insanity is a Class C felony; and

(c) Shall have as its primary concern the protection of society.

(4) Upon placing a person on conditional release, the court shall notify the board in writing of the court’s conditional release order, 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.

(5) 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.

(6) 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).

(7) Following the entry of an 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 agency exercising jurisdiction over the person in accordance with ORS 161.336 (Conditional release by board) (5) and 161.341 (Application for discharge or conditional release) (3).

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 (Standards for sentencing of dangerous offenders) 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 (Provisions relating to concurrent and consecutive sentences). 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)

Notes of Decisions

Under former version of these sec­tions, Psychiatric Security Review Board could, at initial disposi­tional hearing, order only commit­ment to mental hospital or condi­tional release, so it had no authority to make independent redetermina­tion of dangerousness of defendant or to order her discharged on basis of such redetermina­tion. Adams v. Psychiatric Security Review Bd., 290 Or 273, 621 P2d 572 (1980)

Law Review Cita­tions

18 WLR 23 (1982)

Law Review Cita­tions

51 OLR 428 (1972); 52 OLR 285-295 (1973)

Chapter 161

Notes of Decisions

A juvenile court adjudica­tion of whether or not a child committed acts which would be a crim­i­nal viola­tion if committed by an adult must necessarily include an adjudica­tion of all af­firm­a­tive de­fenses that would be available to an adult being tried for the same crim­i­nal viola­tion. State ex rel Juvenile Dept. v. L.J., 26 Or App 461, 552 P2d 1322 (1976)

Law Review Cita­tions

2 EL 237 (1971); 51 OLR 427-637 (1972)

Chapter 161

Criminal Code

(Generally)

Notes of Decisions

Legislature’s adop­tion of 1971 Criminal Code did not abolish doctrine of transferred intent. State v. Wesley, 254 Or App 697, 295 P3d 1147 (2013), Sup Ct review denied

1 Legislative Counsel Committee, CHAPTER 161—General Provisions, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors161.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 161, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano161.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.