BIL: 3165

TYP: General Bill GB

INB: House

IND: 19990112

PSP: J. Brown

SPO: J. Brown

DDN: l:\council\bills\psd\7111ac99.doc

RBY: House

COM: Judiciary Committee 25 HJ

SUB: Mentally Ill Offender Act, Courts, Mental Health, Patients, Indigents

HST:

Body Date Action Description Com Leg Involved

______

House 19990112 Introduced, read first time, 25 HJ

referred to Committee

House 19990106 Prefiled, referred to Committee 25 HJ

Printed Versions of This Bill

TXT:

A BILL

TO AMEND TITLE 17, CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 28 SO AS TO ENACT THE MENTALLY ILL OFFENDER ACT TO PROVIDE PROCEDURAL SAFEGUARDS IN THE PROSECUTION OF THESE DEFENDANTS AND TO REQUIRE ADEQUATE CARE AND INDIVIDUALIZED TREATMENT FOR THESE DEFENDANTS INCLUDING REQUIRING THE DEPARTMENT OF MENTAL HEALTH TO DEVELOP A MENTALLY ILL OFFENDER PROGRAM AND TO PROVIDE FOR THE COMPONENTS OF THE PROGRAM; TO AMEND SECTION 4423210, AS AMENDED, RELATING TO TRANSFER OF CONFINED PERSONS TO OR BETWEEN MENTAL HEALTH OR MENTAL RETARDATION INSTITUTIONS, SO AS TO EXEMPT PATIENTS COMMITTED TO A MENTALLY ILL OFFENDER PROGRAM; TO AMEND SECTION 4423410, AS AMENDED, RELATING TO DETERMINATION OF THE CAPACITY OF A PERSON TO STAND TRIAL FOR A CRIMINAL OFFENSE, SO AS TO AUTHORIZE THE COURT TO ACT ON ITS OWN MOTION; TO AMEND SECTION 4423420, RELATING TO DESIGNATED EXAMINERS’ REPORTS, SO AS TO DELETE EXISTING PROVISIONS AND TO PROVIDE THAT COMPETENCY PROVISIONS OF THIS ACT APPLY; TO AMEND SECTION 4423460, RELATING TO PROCEDURES WHEN A PERSON CHARGED WITH A CRIME NO LONGER REQUIRES HOSPITALIZATION, SO AS TO PROVIDE THAT THIS SECTION DOES NOT APPLY TO PATIENTS COMMITTED TO A MENTALLY ILL OFFENDER PROGRAM; AND TO REPEAL SECTION 4423430, RELATING TO FITNESS TO STAND TRIAL; AND CHAPTER 24, TITLE 17, RELATING TO MENTALLY ILL OR INSANE DEFENDANTS.

Whereas, the General Assembly finds that among those persons who endanger the safety of others by committing felony crimes are persons with mental illness. While their conduct is not typical of the vast majority of persons with mental illness, for their own welfare and for the safety of others the State may need to exercise control over those dangerous individuals who are mentally ill, have been charged with felony crimes, and have been found either incompetent to stand trial or not guilty by reason of insanity; and

Whereas, the General Assembly believes that, where appropriate, persons with mental illness who have been charged with felony crimes and have been found incompetent to stand trial or not guilty by reason of insanity should receive state services addressing their needs, and that services must be provided in conformance with an individual treatment plan, or treatment program in a manner consistent with the needs of public safety. Now, therefore,

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. The 1976 Code is amended by adding:

“CHAPTER 28

Criminally Insane Defendants

Section 17285. This chapter may be cited as the ‘Mentally Ill Offender Act’.

Section 172810. As used in this chapter:

(1) ‘Mentally Ill Offender’ means a person who has been acquitted, by reason of insanity, of a crime charged and thereupon found to be a substantial danger to other persons or to present a substantial likelihood of committing felonious acts jeopardizing public safety or security unless kept under further control by the court or other persons or institutions.

(2) ‘Indigent’ means a person who is financially unable to obtain counsel or other necessary expert or professional services without causing substantial hardship to the person or the person’s family.

(3) ‘Director’ means the State Director of Mental Health for the State Department of Mental Health or the director’s designee.

(4) ‘Department’ means the State Department of Mental Health.

(5) ‘Treatment’ means a currently standardized medical or mental health procedure including medication.

(6) ‘Incompetency’ means a condition in which a person lacks either or both the capacity to understand the nature of the proceedings against that person or to assist in that own person’s defense as a result of mental disease or defect.

(7) No condition of mind proximately induced by the voluntary act of a person charged with a crime constitutes ‘insanity’.

(8) ‘Conditional release’ means permission to leave facility under predetermined conditions and without supervision or any release that is not a full discharge.

(9) ‘Habilitative services’ means those services provided by program personnel to assist a person in acquiring and maintaining life skills and in raising the person’s level of physical, mental, social, and vocational functioning. Habilitative services include, but are not limited to, education, training for employment, programs for chemical addiction, and therapy. The habilitative process must be undertaken with recognition of the risk to the public safety presented by the individual being assisted as manifested by prior charged criminal conduct.

(10) ‘Psychiatrist’ means a physician licensed to practice medicine in this State who has completed three years of graduate training in psychiatry in a program approved by the American Medical Association or the American Osteopathic Association and is certified or eligible to be certified by the American Board of Psychiatry and Neurology.

(11) ‘Psychologist’ means a person who has been licensed as a psychologist pursuant to Chapter 55, Title 40.

(12) ‘Social worker’ means a person with a master’s or further advanced degree from an accredited school of social work or a degree considered equivalent under regulations promulgated by the department.

(13) ‘Individualized plan’ means a plan prepared by developmental mental health professionals with other professionals as a team, for persons under the jurisdiction of the department pursuant to this chapter and shall include, but is not limited to:

(a) the determination of the nature of the person’s specific problems, prior charged criminal behavior, and habilitation needs;

(b) the determination of the conditions and strategies necessary to achieve the purposes of habilitation;

(c) the determination of the intermediate and longrange goals of the habilitation program, with a projected timetable for the attainment;

(d) the rationale for using this plan to achieve those intermediate and longrange goals;

(e) the designation of the staff responsible for carrying out the plan;

(f) the designation of where relevant in light of past criminal behavior and due consideration for public safety, the criteria for proposed movement to lessrestrictive settings, criteria for proposed eventual discharge from involuntary confinement, and a projected possible date for discharge from involuntary confinement;

(g) the type of residence immediately anticipated for the person and possible future types of residences.

Section 172820. (A) At all stages of a proceeding pursuant to this chapter, a person is entitled to the assistance of counsel, and if the person is indigent, the court shall appoint counsel. A person may waive the right to counsel; but the waiver is effective only if a court makes a specific finding that the person is competent to make the waiver. In making that finding, the court must be guided but not limited by determining: whether the person attempting to waive the assistance of counsel, does so understanding:

(1) the nature of the charges;

(2) the range of allowable punishments under the charges;

(3) possible defenses to the charges and circumstances in mitigation of the charges; and

(4) all other facts essential to a broad understanding of the whole matter.

(B) Whenever a person is subjected to an examination pursuant to this chapter, the person may retain an expert or a professional to perform an examination. Upon the request of a person who is indigent, the court shall appoint a qualified expert or a professional to examine the person or participate in the hearing, or both. An expert or a professional obtained by an indigent person pursuant to this chapter, must be compensated for these services out of funds of the department, in an amount determined by the department to be fair and reasonable. The court or the person’s attorney shall inform the person of their right to obtain an expert pursuant to this subsection.

(C) If a person has been committed under this chapter or ordered to undergo alternative treatment following acquittal, of a crime charged, the commitment or treatment may not exceed the maximum possible penal sentence for the offense charged. If at the end of that period the person has not been finally discharged and is still in need of commitment or treatment, civil commitment proceedings must be instituted, if appropriate.

(D) Any time a defendant is examined by a courtappointed expert or professional pursuant to this chapter, the defendant is entitled to have an attorney present. A defendant may refuse to answer any question if the defendant believes the answers may tend to be incriminating or form links leading to evidence of an incriminating nature. The defendant’s attorney must advise the defendant of the right to refuse to answer questions.

Section 172830. (A) Evidence of insanity is not admissible unless the defendant, at the time of arraignment or within ten days after arraignment or at a later time as the court for good cause may permit, files a written notice of intent to rely on insanity as a defense. (B) Insanity is a defense which the defendant shall establish by a preponderance of the evidence.

Section 172840. If the issue of insanity is submitted to the jury, the court shall instruct the jury to return a special verdict in substantially the following form:

1. Did the defendant commit the act charged?

Yes 

No 

2. If your answer to number 1 is yes, do you

acquit him because of insanity existing at

the time of the act charged?

Yes 

No 

3. If you answer to number 2 is yes, is the

defendant a substantial danger to other

persons unless kept under further control

by the court or other persons of institutions?

Yes 

No 

4. If your answer to number 2 is yes, does the

defendant present a substantial likelihood of

committing felonious acts jeopardizing public

safety or security unless kept under further

control by the court or other persons or

institutions?

Yes 

No 

5. If your answers to either number 3 or

4 is yes, is it in the best interest of the

defendant and others that the defendant

be placed in treatment that is less restrictive

than detention in a state mental hospital?

Yes 

No 

Section 172850. No incompetent person may be tried, convicted, or sentenced for the commission of an offense so long as the person’s incompetency continues.

Section 172860. (A) If a defendant has pleaded not guilty by reason of insanity, or there is reason to doubt the defendant’s competency, the court on its own motion or on the motion of any party shall either appoint or request the director to designate at least two qualified experts or professionals, one of whom must be approved by the prosecuting attorney, to examine and report upon the mental condition of the defendant. For purposes of the examination, the court may order the defendant committed to a hospital or other suitable facility for a period of time necessary to complete the examination, but not to exceed fifteen days.

(B) As provided for under Section 172820(B), the court may direct that a qualified expert or professional retained by or appointed for the defendant be permitted to witness the examination authorized by subsection (A) and that the defendant shall have access to all information obtained by the courtappointed experts or professionals. The defendant’s expert or professional has the right to file a report following the guidelines of subsection (C).

(C) The report of the examination shall include:

(1) a description of the nature of the examination;

(2) a diagnosis of the mental condition of the defendant;

(3) whether the defendant suffers from a mental disease or defect and an opinion of the defendant’s competency;

(4) if the defendant has indicated an intention to rely on the defense of insanity pursuant to Section 172830, an opinion of the defendant’s sanity at the time of the act;

(5) when directed by the court, an opinion of the defendant’s capacity to have a particular state of mind that is an element of the offense charged;

(6) an opinion whether the defendant is a substantial danger to others or presents a substantial likelihood of committing felonious acts jeopardizing public safety or security unless kept under further control by the court or other persons or institutions;

(7) the extent and type of control and supervision that must be exercised over the defendant.

Section 172870. Any appointed examiner shall have reasonable access to the defendant for the purpose of the examination and to all relevant medical and psychological records and reports.

Section 172880. The defendant may move the court for a judgment of acquittal on the grounds of insanity. However, a defendant acquitted on those grounds may not later contest the validity of being detained on the grounds that the defendant did not commit the acts charged. At the hearing upon that motion the defendant has the burden of proving by a preponderance of the evidence that insanity at the time of the offense with which he is charged. If the court finds that the defendant must be acquitted by reason of insanity, it shall enter specific findings in substantially the same form as set forth in Section 172840 as now or subsequently amended. If the motion is denied, the question may be submitted to the trier of fact in the same manner as other issues of fact.