The Treatment and Probation Law for Individual Committing Grave Act under Insanity: A Due Process Perspective

Abstract

The Treatment and Probation Law for Individual Committing Grave Act under Insanity (Treatment and Probation Law) was passed in 2003 and became in effect in 2005. This legislation aims at preventing the future risk of committing similar acts by involuntarily providing hospital or community psychiatric treatment for individuals who have committed felony while under insanity. The public prosecutor can require the court to examine such a person either before indictment or after the court decision wich found not guilty for reason of insanity whether he/she should be treated under the new law. From the perspective of due process, there are two issues that merit comments. Firstly, the person who has not been prosecuted is examined usually by a single judge for fact finding. This is in contrast to the normal and common criminal proceedings where three judges are required to participate in judgment. Judgment by multiple judges should be considered in the future amendment. Secondly, because of difficulty of predicting the future dangerous act in an annual basis, the requirement of the commitment should be regarded as void for vagueness. The focus of the goal of service provision should be shifted from the prevention of dangerous act to the prevention of relapse that is likely to reduce the risk of recommitment.