When someone is committed to Oklahoma state mental health custody after being found not guilty by reason of mental illness, do they have a right to a lawyer at later hearings on Forensic Review Board recommendations, and can the public defender system represent them?

Plain-English summary

Representative West asked two questions about the legal rights of people committed to Oklahoma's mental health custody after being found not guilty by reason of mental illness:

1. Do they have a right to a lawyer at hearings on Forensic Review Board (FRB) recommendations? Yes.
2. Can the Oklahoma Indigent Defense System (OIDS) represent them at those hearings? Yes, with approval from the OIDS Executive Director.

The legal hook is 22 O.S. § 1161. When a defendant is acquitted not guilty by reason of mental illness, they are committed to the Department of Mental Health and Substance Abuse Services (ODMHSAS). The FRB, a seven-member board of mental health professionals, an attorney, a retired judge, and an at-large member, periodically reviews these committed individuals and can recommend three things: therapeutic visits, conditional release, or discharge.

For conditional release and discharge recommendations, § 1161(G) requires a hearing "under the same procedure as the first hearing," which is § 1161(C). Section 1161(C) expressly provides that the individual "shall have the assistance of counsel and may present independent evidence." So the right to counsel is plain.

For therapeutic visit recommendations, the statute is less clear. The AG reads the statute as a whole and concludes that when the district attorney objects to a therapeutic visit recommendation, the resulting hearing also operates under § 1161(G), which means counsel is required. The reading turns on equating "objection" with "motion" (the dictionaries treat them similarly) and on the structural point that interpreting the law any other way would leave a committed person with "almost no hearing rights" after the first hearing.

On the OIDS question: § 1161 hearings are civil, so OIDS is not required to represent committed individuals. But § 1355.6(B) authorizes OIDS to represent indigent persons in "other state proceedings" related to the original criminal case, with Executive Director approval. Section 1355.6(A) prohibits OIDS from handling "mental health cases" only as part of a juvenile-proceedings clause, which the AG reads to apply only to juveniles. For adults, there is no such prohibition.

The opinion also notes (in a footnote) that committed individuals "likely also enjoy constitutional protections and a constitutional right to counsel" because they have been committed to State custody indefinitely. The AG cites Jackson v. Indiana (1972), Jones v. United States (1983), and Foucha v. Louisiana (1992) for that proposition but does not need to decide the constitutional question because the statute already supplies the right.

What this means for you

If you are committed to ODMHSAS custody under § 1161

You have a right to a lawyer at every hearing arising from a Forensic Review Board recommendation. That includes:

• A hearing on the Board's recommendation that you be discharged.
• A hearing on the Board's recommendation that you be conditionally released.
• A hearing on the district attorney's objection to a Board recommendation that you receive a therapeutic visit.

You can also present independent evidence at these hearings.

If you cannot afford a lawyer, the OIDS may be able to represent you (this is up to the OIDS Executive Director, who decides on a case-by-case basis).

If you are a family member of a committed individual

If a hearing is coming up, ask whether your family member has a lawyer. If not, contact:

• Your family member's original criminal defense attorney (who may still be the most knowledgeable about the case).
• The Oklahoma Indigent Defense System (OIDS) if your family member is indigent.
• The court that ordered the commitment (it has the obligation to ensure counsel is provided).

If you are at OIDS

The opinion confirms you have authority to represent committed adults at § 1161 hearings, with two conditions:

1. The Executive Director must approve the representation (per § 1355.6(B)).
2. The representation must be related to the original criminal case and not prohibited by the Indigent Defense Act.

OIDS is not required to take every § 1161 case (these are civil), but it can. This may shape how OIDS plans staffing and budget for forensic mental-health work.

If you are a district attorney

When you object to a Forensic Review Board recommendation for a therapeutic visit, expect the resulting hearing to follow § 1161(C) procedures: the committed person has counsel and can present independent evidence, and you bear the burden to prove the person remains dangerous to public peace or safety. Plan to engage counsel for the committed person well before the hearing.

If you are a district court judge

When a § 1161 hearing is set, ensure the committed person has counsel before proceeding. If the person is indigent and OIDS has not yet been engaged, contact OIDS to determine whether the Executive Director will approve representation. The opinion does not require court-appointed counsel from outside OIDS, but the right to counsel is statutory and must be honored.

If you are an ODMHSAS forensic team member

Coordinate with both the district attorney and the committed person's counsel before any FRB recommendation goes to court. The opinion does not change the FRB's process, but it confirms that counsel will be present at the resulting hearing on every recommendation type.

If you are a legislator

The opinion uses § 1161(F)(3) and § 1161(G) creatively to extend counsel to therapeutic-visit objection hearings. If you want a clearer rule, you could amend § 1161(F)(3) to expressly state that hearings under that subsection follow § 1161(C) procedures and provide a right to counsel. The AG's reading reaches the same place, but a textual fix would prevent confusion.

Common questions

Q: What is the Forensic Review Board?
A: A seven-member public body created in 2008 (22 O.S. § 1161(F)(1)). Composed of four licensed mental health professionals, one attorney, one retired judge, and one at-large member. It reviews individuals committed to ODMHSAS and can recommend therapeutic visits, conditional release, or discharge.

Q: What's the difference between a therapeutic visit, conditional release, and discharge?
A: A therapeutic visit is a temporary leave from custody for treatment-related purposes. Conditional release is a longer-term release subject to ongoing supervision and conditions. Discharge ends the commitment.

Q: Why is § 1161 not "criminal" if it follows from a criminal case?
A: The Oklahoma Supreme Court held in Parsons v. District Ct. of Pushmataha County (2017) that § 1161 hearings are civil. The criminal case ended at acquittal. What follows is civil commitment to ODMHSAS based on dangerousness and need for treatment.

Q: Does OIDS have to represent every committed person?
A: No. OIDS is not required to provide representation in civil proceedings, but it may, with Executive Director approval. Each request is decided on its own.

Q: What if OIDS declines and I can't afford a lawyer?
A: The right to counsel is statutory under § 1161. If OIDS does not take the case, the court may need to appoint counsel through other means. The committed person's original criminal defense attorney is sometimes a path. Contact the district court for procedural guidance.

Q: Could a committed person make a constitutional argument that they're entitled to counsel?
A: Likely yes. The opinion cites Heryford v. Parker (10th Cir. 1968) and Foucha v. Louisiana (1992) for the proposition that involuntary commitment without counsel is a due process problem. The opinion does not need to decide the constitutional question because the statute already provides the right.

Q: Does the right to counsel cover Forensic Review Board hearings themselves, or only the court hearings on Board recommendations?
A: The opinion addresses court hearings only. The Board's own internal review processes are not court hearings. If a recommendation goes to court, then counsel is required.

Q: What about juveniles?
A: Section 1355.6(A) excludes juvenile mental health cases and other civil juvenile proceedings from OIDS's mandatory caseload. The AG's reading suggests the exclusion applies only to juveniles, leaving adult mental health representation available with Executive Director approval.

Background and statutory framework

Oklahoma law treats criminal defendants experiencing mental illness in two distinct ways. A defendant adjudicated guilty with mental defect serves a statutory criminal sentence in jail or with the Department of Corrections. A defendant adjudicated not guilty by reason of mental illness is committed to ODMHSAS for examination and treatment.

Under § 1161, a person acquitted not guilty by reason of mental illness is held while two psychological examinations are conducted. The court then holds an initial hearing under § 1161(C), where the district attorney bears the burden to show the person is dangerous to public peace or safety. The committed person has counsel and can present independent evidence. The court either discharges the person or commits them to ODMHSAS custody.

While in ODMHSAS custody, the Forensic Review Board periodically reviews the committed person's status. Three review outcomes:

1. Therapeutic visit (a short, supervised leave). The DA can object; if objected to, a hearing follows.
2. Conditional release (longer-term supervised release). A hearing is automatic.
3. Discharge (commitment ends). A hearing is automatic.

The right to counsel comes from § 1161(C)(3)(b) ("shall have the assistance of counsel"). Section 1161(G) imports those procedures into hearings on conditional release and discharge recommendations. The AG extends the same procedures to therapeutic-visit objection hearings by treating the DA's objection as a "motion" under § 1161(G), and by reading the statute holistically with Title 43A's general civil commitment protections.

Title 43A is Oklahoma's general Mental Health Laws and provides comparable counsel rights for civil commitments (43A O.S. § 5-411(A)(2)). Reading § 1161 alongside Title 43A "as a harmonious whole" supports the same protections for forensically-committed individuals.

The OIDS analysis turns on two clauses of § 1355.6:

• Subsection (A) defines the mandatory OIDS caseload and excludes "mental health cases, in-need-of-supervision proceedings, and any other juvenile proceedings that are civil in nature." The AG reads this exclusion as juvenile-only.
• Subsection (B) authorizes OIDS to represent indigent persons in "other state proceedings" related to the original case, with Executive Director approval.

Section 1161 hearings flow from a criminal case, and "state proceeding" is defined broadly in 12 O.S. § 2506 to include any judicial proceeding. So OIDS has authority, exercisable with approval.

The opinion also notes federal due-process precedent (Jackson, Jones, Foucha) supporting a constitutional right to counsel for indefinite civil commitment, but resolves the question on statutory grounds.

Citations and references

Statutes:
- 22 O.S. § 1161 (Not guilty by reason of mental illness)
- 22 O.S. § 1355.6 (OIDS scope)
- 43A O.S. § 5-411 (Civil commitment counsel rights)

Cases:
- Parsons v. District Ct. of Pushmataha Cnty., 2017 OK 97, 408 P.3d 586 (§ 1161 hearings are civil)
- In re Mental Health of D.B.W., 1980 OK 125, 616 P.2d 1149 (Mental Health Law constitutional safeguards)
- Heryford v. Parker, 396 F.2d 393 (10th Cir. 1968) (denial of counsel violates due process)
- Jackson v. Indiana, 406 U.S. 715 (1972) (constitutional limits on indefinite commitment)
- Foucha v. Louisiana, 504 U.S. 71 (1992) (continued commitment requires ongoing dangerousness)

Source

• Landing page: https://oklahoma.gov/oag/opinions/ag-opinions/2023/ag-opinion-2023-6.html
• Original PDF: https://oklahoma.gov/content/dam/ok/en/oag/opinions/ag-opinions/2023/ag_opinion_2023-6.pdf

Original opinion text

GENTNER DRUMMOND
ATTORNEY GENERAL
ATTORNEY GENERAL OPINION
2023-6

The Honorable Tammy West
Oklahoma House of Representatives, District 84
2300 N. Lincoln Blvd., Room 451
Oklahoma City, OK 73105

May 10, 2023

Dear Representative West:

This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following questions:

1. Whether individuals committed to the custody of the Department of Mental Health and Substance Abuse Services, under title 22, section 1161 of the Oklahoma Statutes, have a right to counsel at court hearings arising from recommendations made by the Forensic Review Board?
2. Whether the provisions of title 22, section 1355.6 of the Oklahoma Statutes allow the Oklahoma Indigent Defense System to represent indigent persons at the court hearings?

I. SUMMARY

Yes, title 22, section 1161 of the Oklahoma Statutes permits individuals committed to the custody of the Department of Mental Health and Substance Abuse Services to have counsel at court hearings arising from recommendations of the Forensic Review Board. Subject to prior approval from the Director of the Oklahoma Indigent Defense System ("OIDS"), attorneys affiliated with OIDS may represent indigent committed individuals at these court hearings.

II. BACKGROUND

Criminal defendants experiencing mental illness can be adjudicated as 1) guilty with mental defect or 2) not guilty by reason of mental illness. 22 O.S.2021, § 1161(A)(1). The consequences of being guilty versus not guilty could not be more different. Whereas guilty criminal defendants experiencing mental illness serve a statutory sentence in the custody of the county jail or Department of Corrections, their not-guilty counterparts are subject to examination by, and treatment from, the Department of Mental Health and Substance Abuse Services. This opinion focuses on the experience of individuals adjudicated not guilty by reason of mental illness and who were committed to the state's mental health care system.

Upon adjudication of not guilty by reason of mental illness, the person is not to be discharged from custody until a district court decides that "the person is not dangerous to the public peace and safety and is a person requiring treatment." To assist the court with its determination, these individuals are subject to two court-ordered statutory examinations by the Oklahoma Department of Mental Health and Substance Abuse Services ("ODMHSAS"). Following the examinations, the findings are presented to the court, district attorney, and trial counsel for the individual. The court then holds a hearing to determine whether the person is "dangerous to the public peace or safety . . . or, if not, is in need of continued supervision . . . ." At this hearing, the district attorney has the burden to prove that the individual is dangerous to the public peace or safety and the individual unequivocally "shall have the assistance of counsel and may present independent evidence."

If not discharged, but instead committed to the custody of ODMHSAS, the Forensic Review Board ("Board") may subsequently recommend three courses of action for an individual: therapeutic visits, conditional release, or discharge. It is upon these recommendations that your questions are focused.

III. DISCUSSION

A. Committed individuals have a statutory right to counsel in court hearings related to Board recommendations.

Reading section 1161 as a whole and considering its general purpose and objective, this office determines that the Legislature intended for committed individuals to have the right to counsel in any section 1161 hearing.

1. Title 22, section 1161(G) of the Oklahoma Statutes adopts the procedure for the hearing on examinations under title 22, section 1161(C) for hearings related to conditional release or discharge.

Section 1161(G) appears clear as to what procedures must be utilized at hearings on a recommendation for conditional release or discharge. It states:

Upon motion by the district attorney or upon a recommendation for conditional release or discharge by the Forensic Review Board, the court shall conduct a hearing to ascertain if the person is dangerous and a person requiring treatment. This hearing shall be conducted under the same procedure as the first hearing and must occur not less than ten (10) days following the motion or request by the Forensic Review Board.

Under the express language in section 1161(C), an individual "shall have the assistance of counsel and may present independent evidence." Accordingly, section 1161(G) hearings on the Board's recommendations for conditional release or discharge require that an individual shall have the assistance of counsel.

2. Objections on Board recommendation for therapeutic visits fall within section 1161(G) because they are a motion by the district attorney.

While the procedures in section 1161(C) are to be followed in hearings on recommendations for conditional release or discharge, a fundamental question remains as to what governs hearings on recommendations for therapeutic visits. This office believes committed individuals have the right to counsel at a hearing on the district attorney's objection to a therapeutic visit. After all, a committed individual's trial counsel has a right to receive the Board's recommendation for therapeutic visits.

To not construe the provisions together would result in an individual having almost no hearing rights, besides at the first hearing. This interpretation would render the language of section 1161(G) meaningless.

B. Under title 22, section 1355.6, OIDS is allowed to represent indigent individuals at the aforementioned hearings.

Hearings under section 1161 are deemed civil in nature and thus OIDS is not required to provide representation. However, upon approval by the Executive Director, OIDS would be allowed to represent individuals during the hearings that arise in section 1161.

Oklahoma law explicitly states that upon approval, OIDS can provide representation in "other state proceedings" if the representation is related to the original case of representation and is not prohibited by the Indigent Defense Act. "State proceeding" is broadly defined to include "any proceeding or investigation before or by any judicial, legislative, executive or administrative body in this state." Hearings that arise under section 1161, which are before a district court, are a "state proceeding." Section 1161 hearings occur after an individual is found "not guilty by reason of mental illness" in their criminal case, so they are directly related to the criminal case.

Section 1355.6(A) excludes only "mental health cases, in-need-of-supervision proceedings, and any other juvenile proceedings that are civil in nature." There is no prohibition for an OIDS attorney to provide counsel in adult mental health cases.

It is, therefore, the official Opinion of the Attorney General that:

1. Certain individuals have a right to counsel, under title 22, section 1161 of the Oklahoma Statutes, at hearings that arise from recommendations made by the Forensic Review Board.

2. Under the provisions of title 22, section 1355.6 of the Oklahoma Statutes, the Oklahoma Indigent Defense System is allowed to represent indigent persons at hearings that arise from recommendations made by the Forensic Review Board.

GENTNER DRUMMOND
ATTORNEY GENERAL OF OKLAHOMA

BAILEY M. WARREN
ASSISTANT ATTORNEY GENERAL