S193

An Act establishing a behavioral health court pilot program and supplementing Title 2C of the New Jersey Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. The Administrative Office of the Courts shall establish a behavioral health court pilot program in accordance with section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill) in no fewer than two counties and no fewer than five municipalities. The pilot program shall take place only in municipalities and counties that apply to the Administrative Office of the Courts to participate.

2. a. Any person who is ineligible for probation due to a conviction for a crime which is subject to a presumption of incarceration or a mandatory minimum period of parole ineligibility, or whom the court otherwise finds appropriate for sentencing under this section, may be sentenced to a term of behavioral health special probation in accordance with this section. Notwithstanding the presumption of incarceration pursuant to the provisions of subsection d. of N.J.S.2C:44-1, whenever a person is in need of behavioral health care services and is subject to sentencing under this section is convicted of or adjudicated delinquent for an offense, other than one described in subsection b. of this section, the court, upon notice to the prosecutor, may, on motion of the person, or on the court’s own motion, place the person on behavioral health special probation, pursuant to P.L. , c. (C. )(pending before the Legislature as this bill), which shall be for a term of no less than one year and no more than three years, as determined in the court’s discretion, provided that the court finds in the record that:

(1) the person has undergone a professional diagnostic assessment to determine whether and to what extent the person is suffering from behavioral health issues;

(2) the person is in need of behavioral health care services within the meaning of section 2 of P.L.1997, c.192 (C.26:2S-2) and was in need of behavioral health care services at the time of the commission of the present offense;

(3) behavioral health care services will serve to benefit the person by addressing the person’s behavioral health issues and will thereby reduce the likelihood that the person will thereafter commit another offense;

(4) the person did not possess a firearm at the time of the present offense and did not possess a firearm at the time of any pending criminal charge;

(5) the person has not been previously convicted on two or more separate occasions of crimes of the first or second degree, other than those listed in paragraph (6) of this subsection; or the person has not been previously convicted on two or more separate crimes, where one of the crimes is a crime of the third degree and one of the crimes is a crime of the first or second degree;

(6) the person has not been previously convicted or adjudicated delinquent for, and does not have a pending charge of murder, aggravated manslaughter, manslaughter, kidnapping, aggravated assault, aggravated sexual assault or sexual assault, or a similar crime under the laws of any other state or the United States;

(7) a suitable treatment facility licensed and approved by the Department of Human Services is able and has agreed to provide appropriate treatment services; and

(8) no danger to the community will result from the person being placed on behavioral health special probation pursuant to this section.

In determining whether to sentence the person pursuant to this section, the court shall consider all relevant circumstances, and shall take judicial notice of any evidence, testimony, or information adduced at the trial, plea hearing, or other court proceedings, and shall also consider the presentence report and the results of the professional diagnostic assessment to determine whether and to what extent the person is in need of behavioral health care services and would benefit from treatment.

As a condition of behavioral health special probation, the court shall order the person to enter a behavioral health care service treatment program at a facility licensed and approved by the Division of Mental Health and Addiction Services in the Department of Human Services to administer behavioral health care services.

b. A person shall not be eligible for behavioral health special probation pursuant to this section if the person is convicted of or adjudicated delinquent for:

(1) a crime of the first degree;

(2) a crime of the first or second degree enumerated in subsection d. of section 2 of P.L.1997, c.117 (C.2C:43-7.2), a crime of the second degree involving N.J.S.2C:15-1 or N.J.S.2C:18-2; or

(3) an offense that involved the distribution or the conspiracy or attempt to distribute a controlled dangerous substance, or its analog, to a juvenile near or on school property.

c. The probation department or other appropriate agency designated by the court to monitor or supervise the person's behavioral health special probation shall report periodically to the court as to the person's progress in behavioral health treatment and compliance with court-imposed terms and conditions. The behavioral health treatment provider shall promptly report to the probation department or other appropriate agency all significant failures by the person to comply with any court-imposed term or condition of behavioral health special probation or any requirements of the course of treatment, and shall immediately report any act that would constitute an escape. The probation department or other appropriate agency shall immediately notify the court and the prosecutor in the event that, for any reason, the behavioral health care service terminates the person's participation in the course of treatment.

d. (1) Upon a first violation of any term or condition of the behavioral health special probation authorized by this section or of any requirements of the course of treatment, the court, in its discretion, may permanently revoke the person’s behavioral health special probation.

(2) Upon a second or subsequent violation of any term or condition of the behavioral health special probation authorized by this section or of any requirements of the course of behavioral health treatment, the court shall permanently revoke the person's behavioral health special probation, unless the court finds on the record that there is a substantial likelihood that the person will successfully complete the treatment program if permitted to continue on behavioral health special probation, and the court is clearly convinced, considering the nature and seriousness of the violations, that no danger to the community will result from permitting the person to continue on behavioral health special probation pursuant to this section. The court's determination to permit the person to continue on behavioral health special probation following a second or subsequent violation pursuant to this paragraph may be appealed by the prosecution.

In making its determination whether to revoke behavioral health special probation, and whether to overcome the presumption of revocation established in paragraph (2) of this subsection, the court shall consider the nature and seriousness of the present infraction and any past infractions in relation to the person's overall progress in the course of treatment, and shall also consider the recommendations of the treatment provider. The court shall give added weight to the treatment provider's recommendation that the person's behavioral health special probation be permanently revoked, or to the treatment provider's opinion that the person is not amenable to treatment or is not likely to complete the treatment program successfully.

(3) If the court permanently revokes the person's behavioral health special probation pursuant to this subsection, the court shall impose any sentence that might have been imposed, or that would have been required to be imposed, originally for the offense for which the person was convicted or adjudicated delinquent. If the court determines or is required pursuant to any other provision of this chapter or any other law to impose a term of imprisonment, the person shall receive credit for any time served in custody pursuant to N.J.S.2C:45-1, and for each day during which the person satisfactorily complied with the terms and conditions of behavioral health special probation while committed pursuant to this section to a residential treatment facility.

(4) Following a violation, if the court permits the person to continue on behavioral health special probation pursuant to this section, the court shall order the person to comply with such additional terms and conditions, as are necessary to deter and promptly detect any further violation.

e. The court may, in lieu of permanently revoking the person's behavioral health special probation, impose a term of incarceration for a period of not less than 30 days nor more than two months, after which the person's term of behavioral health special probation pursuant to this section may be reinstated. In determining whether to order a period of incarceration in lieu of permanent revocation pursuant to this subsection, the court shall consider the recommendations of the service provider with respect to the likelihood that such confinement would serve to motivate the person to make satisfactory progress in behavioral health care services once behavioral health special probation is reinstated. This disposition may occur only once with respect to any person unless the court is clearly convinced that there are compelling and extraordinary reasons to justify reimposing this disposition with respect to the person. Any such determination by the court to reimpose this disposition may be appealed by the prosecution.

f. (1). A person who was successfully discharged from a term of behavioral health special probation as provided in this section may seek an expungement of all records and information relating to the arrest, detention, conviction, and proceeding for any offense enumerated in Title 2C of the New Jersey Statutes that existed at the time of discharge from behavioral health special probation by presenting an application to the Superior Court in the county in which the person was sentenced to behavioral health special probation, which contains a duly verified petition as provided in N.J.S.2C:52-7 for each crime or offense sought to be expunged. A person who was convicted of any offense barred from expungement pursuant to subsection b. or c. of N.J.S.2C:52-2, or who has been convicted of any crime or offense since the date of discharge from behavioral health special probation shall not be eligible to apply for an expungement under this paragraph.

(2) In addition, no application for expungement shall be considered until any pending charges are disposed. It shall be the obligation of the prosecutor to notify the court of any disqualifying convictions or any other factors related to public safety that should be considered by the court when deciding to grant an expungement under this paragraph. The Superior Court shall consider the person's verified petition and may order the expungement of all records and information relating to all arrests, detentions, convictions, and proceedings of the person that existed at the time of discharge from behavioral health special probation as appropriate. The court shall grant the relief requested, unless it finds that the need for the availability of the records outweighs the desirability of having the person freed from any disabilities associated with their availability, or it finds that the person is otherwise ineligible for expungement pursuant to this paragraph.

3. The Administrative Office of the Courts shall monitor the behavioral health court pilot program and report to the Legislature 12 months after the organization of the pilot program and within six months after the expiration of the pilot program. The reports shall include the impact of the pilot program on criminal sentencing and the court’s calendar and workload. The reports also shall evaluate the effectiveness of the pilot program and recommend whether the program should be continued or expanded.

4. This act shall take effect immediately and shall expire three years after the effective date.

STATEMENT

This bill establishes a behavioral health court pilot program.

The goal of the behavioral health court pilot program is to divert certain persons suffering from behavioral health issues from the State prison system and into treatment programs, thereby reducing the demand for State prison bed spaces and providing treatment to eligible offenders.

Under the bill, a person will be eligible for court directed diversion when the individual has undergone a professional diagnostic assessment and: (1) has no history of possessing a firearm during the commission of an offense; (2) has no previous convictions or pending charges for a serious violent offense; (3) has no convictions on two or more separate occasions; (4) presents no danger to the community if placed on probation; (5) is in need of behavioral health care services; and (6) will benefit from the behavioral health treatment and monitoring.

An individual who violates any term or condition of the behavioral health special probation related to behavioral health care treatment may have their probation revoked by the court. Upon a second violation, the court is required to revoke the behavioral health special probation unless the court finds that there is a substantial likelihood that the person will successfully complete the treatment program if permitted to continue. If a court permanently revokes a person’s behavioral health special probation, the court is required to impose any sentence that might have been imposed, or that would have been required to be imposed, for the offense for which the person was convicted.

The court has the option, in lieu of revocation of behavioral health special probation, to impose a term of incarceration for a period of not less than 30 days nor more than two months, after which the person's term of behavioral health special probation pursuant to this section may be reinstated.

A person successfully discharged from a term of behavioral health special probation may seek expungement of all records and information relating to the arrest, detention, conviction, and proceeding for any offense that existed at the time of discharge.