§706-607 Civil commitment in lieu of prosecution or of sentence. (1) When a person prosecuted for a class C felony, misdemeanor, or petty misdemeanor is a chronic alcoholic, narcotic addict, or person suffering from mental abnormality and the person is subject by law to involuntary hospitalization for medical, psychiatric, or other rehabilitative treatment, the court may order such hospitalization and dismiss the prosecution. The order of involuntary hospitalization may be made after conviction, in which event the court may set aside the verdict or judgment of conviction and dismiss the prosecution.

(2) The court shall not make an order under subsection (1) unless it is of the view that it will substantially further the rehabilitation of the defendant and will not jeopardize the protection of the public. [L 1972, c 9, pt of §1]

COMMENTARY ON §706-607

This section extends the concept of involuntary hospitalization in the penal context beyond its classic use in cases of irresponsible defendants.[1] The section does not itself create the authority for the involuntary hospitalization of certain types of offenders, but rather it acknowledges that where the defendant is subject by law to involuntary hospitalization, the court may order the hospitalization in lieu of prosecution or sentence. In the terminology of the Model Penal Code:

This section does not authorize civil commitment in any case but rather pre-supposes that authority for the commitment is otherwise conferred by law. Only in that event is the commitment authorized in lieu of sentence.[2]

The Code allows the court, in its discretion, to order hospitalization in three limited situations: where a person prosecuted for a class C felony or lesser grade of crime is (1) a chronic alcoholic, (2) a narcotic addict, or (3) a person suffering from a mental abnormality not amounting to an excusing condition under chapter 704. The commitment in each case is to a medical institution for rehabilitative treatment.

The section is in accord with the trend of the law favoring medical and para-medical incarceration rather than incarceration which is largely, but not solely, punitive.[3]

It should be noted that the section is not restricted to crimes directly related to the defendant's physical or mental condition. Rather, the court is empowered to order hospitalization, if authorized by civil law, in cases where the crime is only tangentially related to the defendant's abnormality.

...[W]hen the method of subjecting narcotic users to treatment is commitment, it makes small sense to deny that authority if the addict is not guilty of possession merely but has also committed a larceny, for example, to find the means for getting his supply.4

The same example might be used in the case of chronic alcoholics.

Subsection (2) provides a statutory guideline for the exercise of judicial discretion. The court should, of course, refrain from ordering civil commitment unless such commitment will substantially further the rehabilitation of the defendant without jeopardizing the protection of the public.

Finally, it should be noted that this section is not a self-executing one. It does not solve the difficult problem of determining in what cases of physical or mental illness or abnormality involuntary hospitalization ought to be authorized. The resolution of that question can only result from a complete reevaluation of the laws authorizing involuntary hospitalization.

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§706-607 Commentary:

1. Cf. Chapter 704.

2. M.P.C., Proposed Official Draft 105 (1962).

3. See H.R.S., chapter 334, as amended.

4. M.P.C., Tentative Draft No. 2, comments at 31 (1954).