Defendants who have a mental health disorder and, as a result of that mental health disorder, “present a danger to themselves or others” or are “gravely disabled,” may qualify for civil commitment. Article 65 of Title 27 governs this process. Initiating this process requires a statutorily authorized person to petition the civil court for an order certifying the person for civil commitment. Until recently, this process existed completely independently of the criminal system. In recent years, however, after statutory changes to the criminal code mandated the dismissal of criminal cases of incompetent persons, an “offramp” from the criminal system to civil commitment was created to “catch” these incompetent and sometimes dangerous defendants: § 27-65-108.5. This statute, for the first time, permitted the district attorney, the Behavioral Health Administration, or representatives of the Office of Civil and Forensic Mental Health to petition a civil court to civilly commit a defendant when:

1. The defendant has been found incompetent to proceed,
2. The court permitted the filing of a petition for civil commitment prior to voluntary or mandatory dismissal of the case,
3. The defendant refuses voluntary treatment or there’s reasonable grounds to believe the person will not remain in a voluntary treatment program
4. The treatment facility that “will provide short-term treatment” has been designated or approved to provide treatment
5. The defendant has been advised of their right to contest the certification.

§ 27-65-108.5.

A petition to civilly commitment someone pursuant to this “offramp” must:

1. State sufficient facts to establish reasonable grounds that the respondent has a mental health disorder and, as a result of the mental health disorder, is a danger to the respondent’s self or others or is gravely disabled;
2. Be accompanied by a report of the competency evaluator or professional person who has evaluated the respondent within fifty-six days before submission of the petition, unless the respondent whose certification is sought has refused to submit to an evaluation or the respondent cannot be evaluated due to the respondent’s condition;
3. Be filed within fourteen days after the initiating party received the court order from the criminal court initiating the process;
4. Be filed with the court in the county where the respondent resided or was physically present immediately prior to the filing of the petition; except that if the person was arrested for the prior case and held in custody, the petition may be filed in the county where the respondent resided or was physically present immediately prior to the respondent’s arrest; and
5. Provide recommendations if any certification should occur on an inpatient or outpatient basis.

§ 27-65-108.5(2).

Although well intentioned, for a variety of reasons, this “offramp” currently faces a number of considerable practical challenges that has made it, up to this point, largely futile to attempt. Speak with a supervisor before attempting to civilly commit an incompetent defendant.

If you proceed with trying to civilly commit a defendant, because the initiation of the civil certification process by petition triggers a number of due process protections for a defendant in the civil system, this process is usually best handled by a specialist in your office or the local county attorney. If you do not have a specialist who handles these matters, speak with your supervisor about how best to proceed.