H 4311 Session 111 (1995-1996)
H 4311 General Bill, By J. Brown, Anderson, Breeland, T. Brown, A.W. Byrd, Cave,
Cobb-Hunter, Harvin, J. Hines, Inabinett and Lloyd
Similar(S 1138)
A Bill to amend Title 17, Code of Laws of South Carolina, 1976, by adding
Chapter 28 so as to enact the Criminally Insane Defendant Act to provide
procedural safeguards in the prosecution of these defendants, and to require
adequate care and individualized treatment for these defendants.
12/06/95 House Prefiled
12/06/95 House Referred to Committee on Judiciary
01/09/96 House Introduced and read first time HJ-52
01/09/96 House Referred to Committee on Judiciary HJ-52
A BILL
TO AMEND TITLE 17, CODE OF LAWS OF SOUTH
CAROLINA, 1976, BY ADDING CHAPTER 28 SO AS TO
ENACT THE CRIMINALLY INSANE DEFENDANT ACT TO
PROVIDE PROCEDURAL SAFEGUARDS IN THE
PROSECUTION OF THESE DEFENDANTS, AND TO REQUIRE
ADEQUATE CARE AND INDIVIDUALIZED TREATMENT
FOR THESE 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 17-28-10. As used in this chapter:
(1) `Criminally insane person' 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. 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
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 43.
(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 nature of the person's specific problems, prior charged
criminal behavior, and habilitation needs;
(b) the conditions and strategies necessary to achieve the
purposes of habilitation;
(c) the intermediate and long-range goals of the habilitation
program, with a projected timetable for the attainment;
(d) the rationale for using this plan to achieve those
intermediate and long-range goals;
(e) the staff responsible for carrying out the plan;
(f) where relevant in light of past criminal behavior and due
consideration for public safety, the criteria for proposed movement
to less-restrictive 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 17-28-20. (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 persons'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 court-appointed
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 17-28-30. (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 17-28-40. 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:
Answer
Yes or No
1. Did the defendant commit the act
charged? _____
2. If your answer to number 1 is yes,
do you acquit him because of insanity
existing at the time of the act charged? _____
3. If your 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? _____
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? _____
5. If your answers to either number
3 or number 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? _____
Section 17-28-50. No incompetent person may be tried,
convicted, or sentenced for the commission of an offense so long as
the persons's incompetency continues.
Section 17-28-60. (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. At least one of the experts
or professionals appointed must be a developmental disabilities
professional if the court is advised by any party that the defendant
may be developmentally disabled. 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 17-28-20(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 court appointed 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 17-28-30, 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 17-28-70. 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 17-28-80. 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 17-28-40 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.
Section 17-28-90. (A) If during the pendency of an action and
before judgment, the court finds following a report as provided in
Section 17-28-60 that the defendant is incompetent, the court shall
order the proceedings against the defendant be stayed, except as
provided in subsection (E) and, if the defendant is charged with a
felony may commit the defendant to the custody of the director,
who shall place the defendant in the admission, observation, and
evaluation unit of the department for evaluation and treatment, or
the court alternatively may order the defendant to undergo
evaluation and treatment at another facility, or under the guidance
and control of some other person, until the defendant possesses the
competency necessary to understand the proceedings and assist in
the defense, but in any event, for no longer than ninety days. A
defendant found incompetent must be evaluated at the direction of
the director and a determination made whether the defendant is
mentally ill. The evaluation and determination must be
accomplished as soon as possible following the court's placement of
the defendant in the custody of the department. When appropriate a
defendant who is determined to be mentally ill may be placed in a
program specifically reserved for the treatment and training of
persons with mental illness where the defendant has the right to
habilitation according to an individualized service plan specifically
developed for the particular needs of the defendant. The program
must be appropriately secure under the circumstances and must be
administered by mental health professionals who shall direct the
habilitation efforts. The program shall provide security appropriate
with the charged criminal behavior and necessary to protect the
public safety. The department may establish admission priorities in
the event that the number of eligible persons exceeds the available
services and housing. A copy of these priorities must be sent to the
facility. Provisions must be made for temporary placement of
persons while awaiting the availability of services and housing. On
or before expiration of the initial ninety-day period of commitment
the court shall conduct a hearing, at which it shall determine
whether or not the defendant is incompetent. If the defendant is
charged with a crime which is not a felony, the court may stay or
dismiss proceedings and detain the defendant for sufficient time to
allow a department mental health professional to evaluate the
defendant and commence proceedings under Chapter 17, Title 44 if
appropriate and subsections (B) and (C) do not apply. However,
upon order of the court, the prosecutor may directly petition for
fourteen days of involuntary commitment under Chapter 17, Title
44.
(B) If the court finds by a preponderance of the evidence that
the defendant is incompetent, the court has the option of extending
the order of commitment or alternative treatment for an additional
ninety-day period, but it shall at the time of extension set a date for
a prompt hearing to determine the defendant's competency before
the expiration of the second ninety-day period. The defendant, the
defendant's attorney, the prosecutor, or the judge has the right to
demand that the hearing on or before the expiration of the second
ninety-day period be before a jury. No extension may be ordered
for a second ninety-day period or for a subsequent period as
provided in subsection (C) if the defendant's incompetence has been
determined by the department to be solely the result of a mental
illness which is such that competence is not reasonably likely to be
attained during an extension. If no demand is made, the hearing
must be before the court. The court or jury shall determine whether
the defendant has attained competency.
(C) At the hearing upon the expiration of the second ninety-day
period, if the jury or court finds that the defendant is incompetent,
the charges must be dismissed without prejudice and civil
commitment proceedings must be instituted, if appropriate, or the
court shall order the release of the defendant. However, the
criminal charges may not be dismissed if at the end of the second
ninety-day period, the court or jury finds that the defendant is a
substantial danger to others or presents a substantial likelihood of
committing felonious acts jeopardizing public safety or security and
that there is a substantial probability that the defendant will attain
competency within a reasonable period of time. If the court or jury
makes that finding, the court may extend the period of commitment
for an additional six months. If the defendant remains incompetent
at the end of the six-month period, the charges must be dismissed
without prejudice and civil commitment proceedings must be
instituted, if appropriate, or the court shall order release of the
defendant.
(D) If the defendant is unfit to proceed, that does not preclude a
pretrial proceeding which does not require the personal participation
of the defendant.
(E) A defendant receiving medication for physical or mental
problems may not be prohibited from standing trial if the
medication enables the defendant to understand the proceedings or
to assist in the defense or does not disable the defendant from
understanding and assisting.
(F) At or before the conclusion of a commitment period
provided for by this section, the facility providing evaluation and
treatment shall provide to the court a written report of the
examination which meets the requirements of Section 17-28-60.
Section 17-28-100. Subject to the rules of evidence, experts or
professionals who have reported pursuant to this chapter may be
called as witnesses at any proceeding held pursuant to this chapter.
The prosecution or the defendant, or both, may summon any other
qualified expert or professional to testify.
Section 17-28-110. (A) If a defendant is found not guilty, by
reason of insanity, of a felony and it is found that the defendant is
not a substantial danger to others and does not present a substantial
likelihood of committing felonious acts jeopardizing public safety or
security unless kept under further control by the court, other
persons, or institutions, the court shall direct the defendant's final
discharge. If it is found that a defendant is a substantial danger to
other persons or presents a substantial likelihood of committing
felonious acts jeopardizing public safety or security unless kept
under further control by the court, other persons, or institutions, the
court shall order the defendant's hospitalization or an appropriate
alternative treatment less restrictive than detention in a state mental
hospital pursuant to this chapter.
(B) If the defendant has been found not guilty by reason of
insanity and a substantial danger to others or presents a substantial
likelihood of committing felonious acts jeopardizing public safety or
security so as to require treatment, the department immediately shall
cause the defendant to be committed to the Mentally Ill Offender
Program as provided for in Section 17-28-120. A person
committed to that program shall receive habilitation services
according to an individualized service plan specifically developed to
treat the behavior that was the subject of the criminal proceedings.
The treatment program must be administered by mental health
professionals. The treatment program shall provide physical
security consistent with the finding that the defendant is dangerous
and shall incorporate varying conditions of security and alternative
sites when the degree of dangerousness of a defendant makes this
necessary. The department may establish admission priorities in
the event that the number of eligible persons exceeds the limits set
by the department. Provisions must be made for temporary
placement of those persons while awaiting the availability of
services and housing. Temporary placement must be under the
supervision of a mental health professional. South Carolina
Department of Corrections facilities may be utilized for no longer
than thirty days.
(C) If it is found that a defendant is not a substantial danger to
others and does not present a substantial likelihood of committing
felonious acts jeopardizing public safety or security, but that the
defendant is in need of control by the court, other persons, or
institutions, the court shall direct the defendant's conditional
release. If the defendant is acquitted by reason of insanity of a
crime which is not a felony, the court shall order the defendant's
release or order the defendant's continued custody only for a
reasonable time to allow the county-designated mental-health
professional to evaluate the individual and to proceed with civil
commitment pursuant to Chapter 17, Title 44 if considered
appropriate.
Section 17-28-120. (A) The department shall develop a Mentally
Ill Offender Program for all such persons committed to the
department pursuant to this chapter. All such persons are
considered to be involuntarily committed to the department. The
program must include, but is not limited to, these components:
(1) an admission, observation, and evaluation unit for the
purpose of providing intake services, short term observation, and
evaluation services and preparing an individualized service plan;
(2) a subacute unit for persons committed for extended
observation in connection with competency determinations and
attaining competency for persons on conditional release returned to
be stabilized or reevaluated; and for persons recently found not
guilty by reason of insanity or who have had their conditional
release revoked and who are to be placed in the inpatient program
and for persons who have been granted `partial release' under
Section 17-28-150(A);
(3) an inpatient unit which provides long-term treatment for
those persons who have been found not guilty by reason of insanity
and were found to be a substantial danger to others and/or who
presents a substantial likelihood of committing felonious acts
jeopardizing public safety or security;
(4) a community program for persons who have been granted
conditional releases by the courts and who are involved in a gradual
transition into the community.
(B) A person who is committed to the department under this
chapter must be assigned to the admission, observation, and
evaluation unit and must be examined promptly by qualified
personnel. A person may only be assigned to this program unit as
long as necessary to determine proper placement in the Mentally Ill
Defender Program and in no case longer than sixty days.
(C) A person committed to the department under this chapter
must not be discharged from the control of the department, except
upon an order of the court, following a hearing.
Section 17-28-130. If a committed person is entitled to attend a
hearing the department shall send the person in the custody of one
or more department employees to the county where the hearing is to
be held at the time the case is called. During the person's absence
from the facility, the person must be confined in a facility
designated by and arranged for by the department and at all times is
considered to be in the custody of the department employee and
must be provided necessary treatment. If the decision of the
hearing remits the person to custody, the department employee
immediately shall return the person to the institution or facility
designated by the department. If the State appeals an order of
discharge or release of any type, the appeal operates as a stay, and
the person in custody shall remain and immediately be returned to
the institution or facility designated by the department until a final
decision has been rendered in the case. If the decision of the
hearing is for discharge, the department employee immediately shall
return the person to the designated facility of the department only
as long as is necessary to make provisions for a safe and orderly
discharge and in no case longer than seven days.
Section 17-28-140. A person committed to a hospital or other
facility or conditionally released pursuant to this chapter must be
examined by one or more experts or professionals at least once
every six months. As provided for in Section 17-28-20(B) and
upon the request of a person who is indigent, the court shall appoint
a qualified expert or professional to examine the person. The
department, upon receipt of the periodic report, shall provide the
court that committed the person with written notice of compliance
with this section.
Section 17-28-150. (A) A person examined pursuant to Section
17-28-140 may make application to the director for conditional
release. After considering the reports of experts or professionals
who conducted the examination pursuant to Section 17-28-140, the
director shall forward to the court which ordered the commitment
the person's application for conditional release, recommendations
concerning the application, and any proposed terms or conditions
upon which the director reasonably believes the person is able to be
conditionally released. Conditional release may include `partial
release' for work, training, or educational purposes.
(B) Upon receipt of an application for conditional release with
the recommendation for conditional release, the court of the county
that ordered the commitment shall schedule a hearing within thirty
days. The court also may schedule a hearing on an application
recommended by the director for disapproval. The prosecuting
attorney shall represent the State at these hearings and has the right
to have the patient examined by an expert or professional of the
person's choice. As provided for in Section 17-28-20(B) and upon
the request of a person who is indigent, the court shall appoint a
qualified expert or professional to examine the person. The issue to
be determined at the hearing is whether the person may be released
conditionally without substantial danger to others and without
substantial likelihood of committing felonious acts jeopardizing
public safety or security. After the hearing and after considering
the application and the director's recommendations or proposed
terms or conditions for release, the court shall rule on the
application. A denial of a conditional release must be based upon
substantial evidence. The court may modify the suggested terms
and conditions of the conditional release. If the court grants the
application for conditional release, the person must be released
under the conditions set forth by the court. If the application is
denied the person must be remitted to the custody of the department
as provided for in Section 17-28-130.
(C) If the court orders regular or periodic medication or other
medical treatment for the person as a condition of the release, the
court shall require the person to report to a physician or other
person for the medication or treatment. If the released person fails
to appear for the medication or treatment, the physician or other
person immediately shall report the failure to the court and to the
prosecuting attorney of the county in which the released person was
committed.
(D) A person whose application for conditional release has been
denied may reapply after six months from the date of denial.
Section 17-28-160. When a conditionally released person is
required by the terms of the conditional release to report to a
physician, probation officer, or other person on a regular or periodic
basis, the doctor, probation officer, or other person monthly, or as
otherwise directed by the court, shall submit to the court, the
director, the institution from which the person was released, and the
prosecuting attorney of the county in which the person was
committed a report stating whether the person is complying with the
terms and conditions of the conditional release.
Section 17-28-170. (A) Before a person committed under this
chapter is permitted to leave a treatment facility on conditional
release, the superintendent or professional in charge of the treatment
facility or a professional designee shall notify in writing the
prosecuting attorney of any county to which the person is released
and the prosecuting attorney of the county in which the criminal
charges against the committed person were dismissed of the
decision conditionally to release the person. The notice must be
provided at least thirty days before the anticipated release and shall
describe the conditions under which the release is to occur.
(B) In addition to the notice required by subsection (A) of this
section, the superintendent of a state institution designated for the
custody, care, and treatment of persons committed under this
chapter shall notify appropriate law enforcement agencies through
the state law enforcement network of the conditional release of
persons committed under this chapter. Notification must be made at
least forty-eight hours before the conditional release and shall
include the name of the person, the place to which the person has
permission to go, and the dates and times during which the person
will be on conditional release.
(C) Upon receiving notice that a person committed under this
chapter is being temporarily released under subsections (A) or (B)
or (A) and (B), the prosecuting attorney may seek a temporary
restraining order to prevent the release of the person on the grounds
that the person is dangerous to self or others.
Section 17-28-180. (A) If a person committed under this chapter
escapes from a state facility or disappears under a conditional
release, the superintendent of the facility shall notify as appropriate,
local law enforcement officers, other governmental agencies, the
person's relatives, and any other appropriate persons about
information necessary for public safety or to assist in the
apprehension of the person.
(B) Upon receiving notification of the apprehension, the court
shall promptly schedule a hearing. In accordance with the court's
findings, the court may continue, modify, or revoke the conditional
release. If the release is revoked the person must be remitted
subject to release only in accordance with this chapter.
Section 17-28-190. The Mentally Ill Offender Community
Program shall provide adequate monitoring and resources to ensure
that a released person has the necessary means of living a healthy
and productive life.
Section 17-28-200. A person who is conditionally released
pursuant to this chapter must be reviewed by the court that granted
the conditional release no later than one year after the release and
every two years thereafter. The review may be held sooner or more
frequently if the court determines it is necessary based on its own
motion or on motion of the person, the director, the prosecuting
attorney, or another concerned person. The question to be
determined by the court on review is whether the person may
continue to be conditionally released. The court in making its
determination shall consider the periodic reports filed pursuant to
this chapter and the opinions of the director and other experts or
professionals.
Section 17-28-210. (A) If a released person fails to comply with
the terms of the release or is in need of additional care and
treatment, an immediate hearing may be scheduled by the court on
its own motion or on the petition of a person who submits reports
pursuant to Section 17-28-160, the department, the prosecuting
attorney, or another concerned person for the purpose of modifying
the terms of conditional release.
(B) If the prosecuting attorney, the commissioner, or the court
reasonably believes that a conditionally released person is failing to
comply with terms and conditions of the release the court or
director may order that the conditionally released person be
apprehended and taken into custody until a hearing is scheduled.
The court must be notified before the close of the next judicial day
that the person was apprehended. The prosecuting attorney and the
conditionally released person have the right to request an immediate
psychiatric examination of the conditionally released person as
provided for in Section 17-28-20(B) and upon the request of a
conditionally released person who is indigent, the court shall
appoint a qualified expert or professional to examine the person.
Section 17-28-220. (A) Upon application by the committed or
conditionally released person, the director shall determine whether
reasonable grounds exist for final discharge. If the director
approves final discharge, the director shall authorize the person to
petition the court. If the director denies approval of the formal
discharge, the petitioner may apply again in six months. After
three denials, the person may petition the court directly.
(B) The court and the prosecuting attorney must be served with
the petition. Within forty-five days of receiving the petition for
final discharge, the court shall schedule a hearing. A continuance
of the hearing may be granted only for good cause shown. The
prosecuting attorney shall represent the State and has the right to
have the petitioner examined by an expert or professional of the
person's choice. As provided for in Section 17-28-20(B) and upon
the request of a petitioner who is indigent, the court shall appoint a
qualified expert or professional to examine the petitioner. The
hearing must be before a jury if requested by the petitioner or the
prosecuting attorney. The petitioner has the burden to prove by a
preponderance of the evidence that the petitioner may be finally
discharged without substantial danger to others and without
presenting 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.
(C) Nothing contained in this section, or any other provision of
this chapter prohibits the person from petitioning the court for final
discharge or conditional release from the institution in which the
person is committed. The issue to be determined on the proceeding
is whether the petitioner 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.
(D) Nothing contained in this chapter prohibits the committed
person from petitioning for release by writ of habeas corpus.
Section 17-28-230. (A) A person involuntarily detained,
hospitalized, or committed pursuant to this chapter has the right to
adequate care and individualized treatment. The person who has
custody of the patient or is in charge of treatment shall keep records
detailing all medical, expert, and professional care and treatment
received by a committed person, and shall keep copies of all reports
of periodic examinations of the patient filed with the director
pursuant to this chapter.
(B) All records and reports made pursuant to this chapter must
be made available only upon request to the committed person, to
the person's attorney or physician, the prosecuting attorney, the
court, the South Carolina Protection and Advocacy for the
Handicapped, or other experts or professionals who, upon proper
showing, demonstrate a need for access to the records. All records
and reports made pursuant to this chapter also must be made
available, upon request, to the Department of Probation, Parole and
Pardon Services if the person was on parole or probation at the time
of detention, hospitalization, or commitment.
Section 17-28-240. No person confined pursuant to this chapter
may be incarcerated in a state correctional institution or facility,
except as provided for in Section 17-28-110(B). Confinement in a
county jail or other local detention facility while awaiting placement
in a treatment program or a court hearing pursuant to this chapter is
permitted for no more than seven days.
Section 17-28-250. A party may seek appellate review of the
decision or order from any hearing held pursuant to this chapter.
The court shall advise the person of this right.
Section 17-28-260. Nothing in this chapter prohibits a person
committed prior to the effective date of this chapter from exercising
a right available to him at the time of commitment or as provided
for in this chapter for obtaining release from confinement, including
the right to petition for a writ of habeas corpus.
Section 17-28-270. The department is responsible for all costs
relating to the evaluation and treatment of a person committed to
the department pursuant to this chapter, including the logistical and
support services pertaining to evaluation and treatment."
SECTION 2. (A) Chapter 28, Title 17 of the 1976 Code, as added
by Section 1 of this act, must not be construed in such a manner so
as to:
(1) punish a person more harshly for commission of an
offense than the person could have been punished at the time of
commission of the offense;
(2) impair any constitutional right;
(3) impair any proceedings pending under statutes in effect
prior to the effective date of this chapter.
(B) Whenever a court so rules, Chapter 28, Title 17 of the 1976
Code, as added by Section 1 of this act, must be applied to persons
previously committed as incompetent or as criminally insane. The
decision of whether to apply this chapter must be based upon the
following:
(1) In the interest of justice should the former procedures be
applied?
(2) Is it feasible to apply the procedures of Chapter 28, Title
17?
SECTION 3. This act takes effect July 1, 1996.
-----XX----- |