S 502 Session 111 (1995-1996)
S 0502 General Bill, By Passailaigue
A Bill to amend Title 17, Code of Laws of South Carolina, 1976, by adding
Chapter 26 and repealing Chapter 24 so as to abolish the defense of not guilty
by reason of insanity and creating guilty by reason of mental disease or
defect.
02/14/95 Senate Introduced and read first time SJ-6
02/14/95 Senate Referred to Committee on Judiciary SJ-6
A BILL
TO AMEND TITLE 17, CODE OF LAWS OF SOUTH
CAROLINA, 1976, BY ADDING CHAPTER 26 AND
REPEALING CHAPTER 24 SO AS TO ABOLISH THE
DEFENSE OF NOT GUILTY BY REASON OF INSANITY AND
CREATING GUILTY BY REASON OF MENTAL DISEASE OR
DEFECT.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Title 17 of the 1976 Code is amended by adding:
"CHAPTER 26
Section 17-26-10. As used in this chapter, the term `mental
disease or defect' does not include an abnormality manifested only
by repeated criminal or other antisocial behavior.
Section 17-26-20. Evidence that the defendant suffered from a
mental disease or defect is admissible to prove that the defendant
did or did not have a state of mind that is an element of the
offense.
Section 17-26-30. A person who, as a result of mental disease or
defect, is unable to understand the proceedings against the person or
to assist in the person's own defense may not be tried, convicted, or
sentenced for the commission of an offense so long as the
incapacity endures.
Section 17-26-40. When the defendant is found not guilty of the
charged offense or offenses or any lesser included offense for the
reason that due to a mental disease or defect the defendant did not
have a particular state of mind that is an essential element of the
offense charged, the verdict and the judgment must state that
reason.
Section 17-26-50. (A) The issue of the defendant's fitness to
proceed may be raised by the court, the defendant or the
defendant's counsel, or by the prosecutor. When the issue is raised,
it must be determined by the court. If neither the prosecutor nor
counsel for the defendant contests the court's findings, the court
may make the determination on the basis of the report prepared by
the psychiatrist or licensed clinical psychologist who has evaluated
the defendant. If the finding is contested, the court shall hold a
hearing on the issue. If the report is received in evidence upon the
hearing, the parties have the right to subpoena and cross-examine
the psychiatrists or licensed clinical psychologists who joined in the
report and to offer evidence upon the issue.
(B) If the court determines that the defendant lacks fitness to
proceed, the proceeding against the defendant must be suspended.
An examination of the defendant shall be made to determine the
need for hospitalization of the defendant pursuant to the standards
set forth in Chapter 17 of Title 44 of the 1976 Code.
(C) The fact that the defendant is unfit to proceed does not
preclude any legal objection to the prosecution that is susceptible to
fair determination prior to trial and without the personal
participation of the defendant.
(D) The expenses of sending the defendant to the custody of the
South Carolina Department of Mental Health, of keeping the
defendant in an appropriate institution, and of bringing the
defendant back are chargeable to the State.
Section 17-26-60. (A) When a defendant is found not guilty for
the reason that due to a mental disease or defect the defendant
could not have a particular state of mind that is an essential element
of the offense charged, the court shall order a predisposition
investigation in accordance with Chapter 17 of Title 44 of the 1976
Code, which must include an investigation of the present mental
condition of the defendant. If the trial was by jury, the court shall
hold a hearing to determine the appropriate disposition of the
defendant. If the trial was by the court, the court may hold a
hearing to obtain any additional testimony it considers necessary to
determine the appropriate disposition of the defendant. In either
case, the testimony and evidence presented at the trial must be
considered by the court in making its determination.
(B) The court shall evaluate the nature of the offense with which
the defendant was charged.
(1) If the offense:
(a) involved a substantial risk of serious bodily injury or
death, actual bodily injury, or substantial property damage, the court
may find that the defendant suffers from a mental disease or defect
that renders the defendant a danger to the defendant or others. If the
court finds that the defendant presents a danger to the defendant or
others, the defendant may be committed to the custody of the South
Carolina Department of Mental Health to be placed in the South
Carolina State Hospital for custody, care, and treatment. However,
if the court finds that the defendant is seriously developmentally
disabled, as defined in Section 43-33-340, the prosecutor shall
petition the court in the manner provided in Chapter 17 of Title 44
of the 1976 Code;
(b) charged did not involve a substantial risk of serious
bodily injury or death, actual bodily injury, or substantial property
damage, the court shall release the defendant. The prosecutor may
petition the court in the manner provided in Chapter 17 of Title 44
of the 1976 Code.
(2) A person committed to the custody of the South Carolina
Department of Mental Health must have a hearing within 120 days
of confinement to determine the person's present mental condition
and whether the person must be discharged or released or whether
the commitment may be extended because the person continues to
suffer from a mental disease or defect that renders the person a
danger to the person or others. The hearing must be conducted by
the court that ordered the commitment unless that court transfers
jurisdiction to the circuit court in the circuit in which the person has
been placed. The court shall cause notice of the hearing to be
served upon the person, the person's counsel, the prosecutor, and
the court that originally ordered the commitment. The hearing is a
civil proceeding, and the burden is upon the State to prove by clear
and convincing evidence that the person may not be safely released
because the person continues to suffer from a mental disease or
defect that causes the person to present a substantial risk of:
(a) serious bodily injury or death to the person or others;
(b) an imminent threat of physical injury to the person or
others; or
(c) substantial property damage.
(3) According to the determination of the court upon the
hearing, the person must be discharged or released on conditions the
court determines to be necessary or must be committed to the
custody of the South Carolina Department of Mental Health to be
placed in the South Carolina State Hospital for custody, care, and
treatment.
(4) A professional person shall review the status of the person
each year. At the time of the annual review, the Commissioner of
the prison system or the person or the representative of the person
may petition for discharge or release of the person. Upon request
for a hearing, a hearing must be held pursuant to the provisions of
subsection (2).
Section 17-26-70. (A) If the discharge or release of the
committed individual is recommended pursuant to Section 44-17-810, on condition without danger to the person or others because
the person no longer suffers from a mental disease or defect that
causes the person to present a substantial risk of serious bodily
injury or death to the person or others, a substantial risk of an
imminent threat of physical injury to the person or others, or a
substantial risk of substantial property damage, the South Carolina
Department of Mental Health shall make application for the
discharge or release of the person in a report to the circuit court by
which the person was committed unless that court transfers
jurisdiction to the court in the circuit in which the person has been
placed and shall send a copy of the application and report to the
prosecutor of the county from which the person was committed.
(B) Either the South Carolina Department of Mental Health or
the person may also make application to the court for discharge or
release as part of the person's annual treatment review.
(C) The court shall then appoint at least one person who is
either a qualified psychiatrist or licensed clinical psychologist to
examine the person and to report as to the person's mental
condition within sixty days or a longer period that the court
determines to be necessary for the purpose. To facilitate the
examinations and the proceedings on the examinations, the court
may have the person confined in any mental health facility located
near the place where the court sits that may be designated by the
South Carolina Department of Mental Health as suitable for the
temporary detention of persons suffering from mental disease or
defect.
(D) The committed person or the person's attorney may secure a
professional person of the committed person's choice to examine
the committed person and to testify at the hearing. If the person
wishing to secure the testimony of a professional person is unable
to do so because of financial reasons, the court shall appoint an
additional professional person to perform the examination.
Whenever possible, the court shall allow the committed person or
the person's attorney a reasonable choice of an available
professional person qualified to perform the requested examination.
The professional person must be compensated by the department of
corrections and human services.
(E) If the court is satisfied by the report filed under subsection
(A) and the testimony of the reporting psychiatrist or licensed
clinical psychologist that the committed person may be discharged
or released on condition because the person no longer suffers from
a mental disease or defect that causes the person to present a
substantial risk of serious bodily injury or death to the person or
others, a substantial risk of an imminent threat of physical injury to
the person or others, or a substantial risk of substantial property
damage, the court shall order the person's discharge.
(F)(1)If the court is not satisfied, it shall promptly order a
hearing to determine whether the person may safely be discharged
or released on the grounds that the person no longer suffers from a
mental disease or defect that causes the person to present a
substantial risk of:
(a) serious bodily injury or death to the person or others;
(b) an imminent threat of physical injury to the person or
others; or
(c) substantial property damage.
(2) The hearing is a civil proceeding, and the burden is upon
the State to prove by clear and convincing evidence that the person
may not be safely discharged or released because the person
continues to suffer from a mental disease or defect that causes the
person to present a substantial risk of:
(a) serious bodily injury or death to the person or others;
(b) an imminent threat of physical injury to the person or
others; or
(c) substantial property damage.
(3) According to the determination of the court upon the
hearing, the committed person must then be discharged or released
on conditions that the court determines to be necessary or must be
recommitted to the custody of the South Carolina Department of
Mental Health, subject to discharge or release only in accordance
with the procedures provided in this Section and Section 44-17-810.
Section 17-26-80. A committed person may make application for
discharge or release to the circuit court by which the person was
committed unless that court transfers jurisdiction to the court in the
circuit in which the person has been placed, and the procedure to be
followed upon the application is the same as that prescribed in
Chapter 17 of Title 44 of the 1976 Code in the case of an
application by the South Carolina Department of Mental Health.
However, an application by a committed person need not be
considered until the person has been confined for a period of not
less than 6 months from the date of the order of commitment, and
if the determination of the court is adverse to the application, the
person may not be permitted to file a further application until one
year has elapsed from the date of any preceding hearing on an
application for the person's release or discharge.
Section 17-26-90. (A) The court may order revocation of a
person's conditional release if the court determines after hearing
evidence that:
(1) the conditions of release have not been fulfilled; and
(2) based on the violations of the conditions and the person's
past mental health history, there is a substantial likelihood that the
person continues to suffer from a mental disease or defect that
causes the person to present a substantial risk of:
(a) serious bodily injury or death to the person or others;
(b) an imminent threat of physical injury to the person or
others; or
(c) substantial property damage.
(B) The court may retain jurisdiction to revoke a conditional
release for no longer than five years.
(C) If the court finds that the conditional release should be
revoked, the court shall immediately order the person to be
recommitted to the custody of the Commissioner of the prison
system, subject to discharge or release only in accordance with the
procedures provided in Section 44-17-810.
Section 17-26-100. Whenever a defendant is convicted on a
verdict or a plea of guilty and claims that at the time of the
commission of the offense of which convicted the defendant was
suffering from a mental disease or defect that rendered the
defendant unable to appreciate the criminality of the defendant's
behavior or to conform the defendant's behavior to the requirements
of law, the sentencing court shall consider any relevant evidence
presented at the trial and shall require additional evidence as it
considers necessary for the determination of the issue, including
examination of the defendant and a report of the examination.
Section 17-26-110. (A) If the court finds that the defendant at
the time of the commission of the offense of which the defendant
was convicted did not suffer from a mental disease or defect as
described in Section 17-26-100, the court shall sentence the
defendant pursuant to normal sentencing guidelines commensurate
with the offense to which the defendant is convicted.
(B) If the court finds that the defendant at the time of the
commission of the offense suffered from a mental disease or defect
as described in Section 17-26-100, any mandatory minimum
sentence prescribed by law for the offense need not apply and the
court shall sentence the defendant to be committed to the custody of
the South Carolina Department of Mental Health to be placed in the
South Carolina State Hospital for custody, care, and treatment for a
definite period of time not to exceed the maximum term of
imprisonment that could be imposed under subsection (A).
(C) Either the Commissioner of the prison system or a defendant
whose sentence has been imposed under subsection (B) may petition
the sentencing court for review of the sentence if the professional
person certifies that:
(1) the defendant no longer suffers from a mental disease or
defect;
(2) the defendant's mental disease or defect no longer renders
the defendant unable to appreciate the criminality of the defendant's
conduct or to conform the defendant's conduct to the requirements
of law;
(3) the defendant suffers from a mental disease or defect but
is not a danger to the defendant or others; or
(4) the defendant suffers from a mental disease or defect that
makes the defendant a danger to the defendant or others, but:
(a) there is no treatment available for the mental disease or
defect;
(b) the defendant refuses to cooperate with treatment; or
(c) the defendant will no longer benefit from active
inpatient treatment for the mental disease or defect.
(D) The sentencing court may make any order not inconsistent
with its original sentencing authority except that the length of
confinement or supervision must be equal to that of the original
sentence. The professional person hired by the defendant or
appointed by the court shall review the defendant's status each
year."
SECTION 2. Chapter 24, Title 17 of the 1976 Code is repealed.
SECTION 3. This act takes effect upon approval by the
Governor.
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