S 969 Session 112 (1997-1998)
S 0969 General Bill, By Holland
Similar(S 860, H 3315, H 4360, H 4411)
A BILL TO AMEND TITLE 17, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO
CRIMINAL PROCEDURES, BY ADDING CHAPTER 30, SO AS TO ENACT THE "SEXUALLY
VIOLENT PREDATOR ACT" AND TO ESTABLISH PROCEDURES FOR DETERMINING IF A PERSON
IS A SEXUALLY VIOLENT PREDATOR; TO PROVIDE FOR THE RIGHTS OF THESE PERSONS IN
THIS PROCESS; AND TO AUTHORIZE THE COMMITMENT OF THE PERSON TO THE DEPARTMENT
OF MENTAL HEALTH UPON ANTICIPATION OF RELEASE FROM INCARCERATION AND UNTIL THE
PERSON IS SAFE TO BE AT LARGE.
01/29/98 Senate Introduced and read first time SJ-6
01/29/98 Senate Referred to Committee on Judiciary SJ-6
05/21/98 Senate Recalled from Committee on Judiciary SJ-3
Indicates Matter Stricken
Indicates New Matter
RECALLED
May 21, 1998
S. 969
Introduced by Senator Holland
S. Printed 5/21/98--S.
Read the first time January 29, 1998.
STATEMENT OF ESTIMATED FISCAL
IMPACT
ESTIMATED FISCAL IMPACT ON GENERAL FUND
EXPENDITURES IS:
An Additional Cost to the General Fund of the State as Shown Below
Prosecution Coordination Commission:
The commission indicates that implementation of the
requirements of this bill will not directly affect the Prosecution
Coordination Commission. The Attorney General shall appoint a
prosecutor's review team of which one member shall be a circuit
solicitor and shall assist the Attorney General in the determination
of whether or not the person satisfies the definition of a sexually
violent predator. Implementation of this legislation would have
minimal impact and costs can be absorbed.
Department of Probation, Pardon and Parole (DPPPS):
The department would be required to notify the Attorney General
and solicitors of the parole of persons who committed a sexually
violent offense. The department indicates that implementation of the
requirements of this bill would have no impact on the General Fund
of the State.
Department of Juvenile Justice (DJJ):
The department would be required to notify the Attorney General
and solicitors of the conditional release of persons who committed a
sexually violent offense. In addition, it is likely that some offenders
would remain in DJJ custody until it is determined if an offender is
also a sexually violent predator. DJJ indicates that implementation
of these requirements would be minimal and costs could be absorbed
within existing resources.
Attorney General's Office
The Attorney General's Office will be required to review the
records of each referral to determine if the person meets the definition
of a sexually violent predator. The agency estimates recurring
personnel costs of $138,600 for two attorneys and one paralegal.
Operating costs would consist of $18,000 recurring and $19,500
nonrecurring funds.
Judicial Department
The Judicial Department estimates the cost of implementation
would be $844,093 in recurring dollars and $96,060 in non-recurring
dollars for three new Circuit Court judges in the first year. An
additional four judges would be needed over the next five years at a
cost of $281,365 in recurring funds and $32,020 in non-recurring
funds per judge, totaling seven new judges costing $1,969,553 in
recurring funds and $224,140 in non-recurring funds. These costs are
based on the number of probable cause hearings, commitment trials,
annual reviews, discharge hearings, and trials requested after a
discharge hearing. The judicial estimate is based on the assumption
that all sexually violent offenders would satisfy the definition of a
sexually violent predator and, therefore a probable cause hearing
would be necessary. However, actual funding needs could be less if
only a portion of sexually violent offenders are determined to be
sexually violent predators as determined by the prosecutor's review
committee.
Department of Corrections (SCDC)
SCDC indicates that recurring costs associated with the legislation
would be minimal and can be absorbed provided the agency is not
responsible for any additional evaluations in order for the courts to
identify sexually violent predators. However, the Department of
Mental Health may enter into an interagency agreement with the
Department of Corrections for the confinement of persons determined
to be sexually violent predators (see Estimated Operating Cost
below).
It is anticipated that enactment of this legislation would result in
the need for an additional facility or facilities. The Department of
Corrections estimates the cost of new facility construction at
approximately $35,000 per bed. However, construction costs could
be greater since the facility would need to accommodate a treatment
program developed by DMH. Total facility costs would depend on
the size of the facility or facilities to be constructed. Although the
costs of evaluations is reflected in the Department of Mental Health
response, these costs could be associated with SCDC. There is no
cost avoidance to SCDC since offenders serve the required sentence
before release and evaluation.
Department of Mental Health (DMH):
For fiscal impact statement purposes it is assumed that DMH would
conduct the evaluations (pursuant to a contested hearing) to
determine if a sexually violent offender is also a sexually violent
predator. The number of sexually violent offenders scheduled to be
released by the Department of Corrections each year is estimated at
335 (based on a two year average). DMH estimates the annual
average number of individuals to be evaluated is 84 (25% of the
number of offenders scheduled for release). The cost per evaluation
is estimated at $5,000. Therefore, the annual cost of evaluations
would be approximately $420,000. DMH indicates it would either
have to contract for these evaluation or pay existing staff overtime to
conduct these evaluations.
Estimated Operating Costs
The number of individuals released by the Department of
Corrections who would be committed under these statutes is
estimated at between 17 and 34 annually (5% to 10% of the number
of offenders released). The National Association of State Mental
Health Program Directors surveyed other states that have
implemented similar legislation. Of those states with experience
under similar laws, the annual cost of commitment and treatment is
between $65,600 and $127,500 per patient. Therefore, the cost of
commitment and treatment for the first year is estimated at between
$1.1 million and $4.3 million depending on the type of treatment
program developed and the rate of commitments. Total costs would
continue to increase each year until the committed population
stabilized. However, it is not known at what point the patient
population would stabilize or how many patients would be in the
program at that time. Although there could be patients received
from DJJ and other agencies, it is anticipated that the majority of
patients would come from the Department of Corrections.
The Department of Mental Health is continuing to gather
information concerning the potential programmatic and fiscal impact
on the department. More accurate data may become available as
DMH continues to collect and analyze this information.
Approved By:
Frank A. Rainwater
Office of State Budget
A BILL
TO AMEND TITLE 17, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO CRIMINAL PROCEDURES,
BY ADDING CHAPTER 30, SO AS TO ENACT THE
"SEXUALLY VIOLENT PREDATOR ACT" AND TO
ESTABLISH PROCEDURES FOR DETERMINING IF A PERSON
IS A SEXUALLY VIOLENT PREDATOR; TO PROVIDE FOR
THE RIGHTS OF THESE PERSONS IN THIS PROCESS; AND TO
AUTHORIZE THE COMMITMENT OF THE PERSON TO THE
DEPARTMENT OF MENTAL HEALTH UPON ANTICIPATION
OF RELEASE FROM INCARCERATION AND UNTIL THE
PERSON IS SAFE TO BE AT LARGE.
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 30
Sexually Violent Predator Act
Section 17-30-10. This chapter may be cited as the 'Sexually
Violent Predator Act'.
Section 17-30-20. For purposes of this chapter:
(1) 'Sexually violent predator' means a person who has been
charged with, convicted of, pled guilty or nolo contendere to, or
adjudicated delinquent for a sexually violent offense and who suffers
from a mental abnormality or personality disorder which makes the
person likely to engage in predatory acts of sexual violence, if not
confined in a secure facility. A person includes a child under the age
of seventeen.
(2) 'Sexually violent offense' means:
(a) criminal sexual conduct in the first, second, or third degree,
as provided for in Sections 16-3-652, 16-3-653, and 16-3-654;
(b) criminal sexual conduct with minors, as provided for in
Section 16-3-655;
(c) assault with intent to commit criminal sexual conduct, first,
second, or third degree, as provided for in Section 16-3-656;
(d) engaging a child for a sexual performance, as provided for
in Section 16-3-810;
(e) committing or attempting lewd act upon a child under
sixteen, as provided for in Section 16-15-140,
(f) accessory before the fact to commit an offense enumerated
in this item and as provided for in Section 16-1-40;
(g) attempt to commit an offense enumerated in this item, as
provided for in Section 16-1-80.
(3) 'Mental abnormality' means a congenital or acquired condition
affecting the emotional or volitional capacity which predisposes the
person to commit sexually violent offenses in a degree constituting
such person a menace to the health and safety of others.
(4) 'Predatory' means acts directed towards strangers or individuals
with whom relationships have been established or promoted for the
primary purpose of victimization.
(5) 'Sexually motivated' means that one of the purposes for which
the defendant committed the crime was for the purpose of the
defendant's sexual gratification.
Section 17-30-30. (A) When it appears that a person satisfies the
definition of a sexually violent predator, the agency with jurisdiction
over that person must give written notice of this fact to the Attorney
General and the multidisciplinary team established in Section
17-30-40, at least ninety days before:
(1) the anticipated release from confinement by the Department
of Corrections, the Department of Mental Health, the Department of
Juvenile Justice, or any other secure facility, or the anticipated release
from supervision by the Department of Probation, Parole, and Pardon
Services of a person who has been convicted of, pled guilty or nolo
contendere to, or been adjudicated delinquent for a sexually violent
offense, except that in the case of a person who is incarcerated for no
more than ninety days as a result of a revocation of post-release
supervision, written notice must be given as soon as practicable
following the person's incarceration;
(2) the anticipated release of a person who has been charged
with a sexually violent offense and who has been determined to be
incompetent to stand trial pursuant to Section 44-23-430 and
subsequently, pursuant to Section 44-23-460;
(3) the release of a person, pursuant to Section 17-24-40(C),
who has been charged with a sexually violent offense and who has
been found not guilty by reason of insanity; or
(4) the release of a person who has been charged with a sexually
violent offense and who has been found guilty but mentally ill
pursuant to Section 17-24-20.
(B) The agency with jurisdiction over the person shall inform the
Attorney General and the multidisciplinary team of:
(1) the person's name, identifying factors, anticipated future
residence, criminal offense history; and
(2) documentation of institutional adjustment, treatment
received, and any disciplinary records formulated during confinement
or supervision.
Section 17-30-40. The Director of the Department of Corrections
shall appoint a multidisciplinary team to review the records of each
person referred to the team pursuant to Section 17-30-30(A). These
records may include, but are not limited to, the person's criminal
offense record, any relevant medical and psychological records,
treatment records, and any disciplinary or other records formulated
during confinement or supervision. The team, within thirty days of
receiving notice as provided for in Section 17-30-30(A), shall assess
whether or not the person satisfies the definition of a sexually violent
predator. The team shall forward a report of its assessment, along
with copies of all records relevant to the assessment, to the Attorney
General. Membership of the team must include a representative from
the Department of Corrections, the Department of Probation, Parole,
and Pardon Services, and the Department of Mental Health. The
Director of the Department of Corrections or his designee shall be the
chairman of the team.
Section 17-30-50. The Attorney General shall appoint a
prosecutor's review committee to review the report and records of
each person referred to the Attorney General by the multidisciplinary
team. The prosecutor's review committee shall assist the Attorney
General in the determination of whether or not the person satisfies the
definition of a sexually violent predator. The prosecutor's review
committee shall include a member of the staff of the Attorney
General, a circuit solicitor, a defense attorney, and a victim's
representative. The Attorney General or his designee shall be the
chairman of the committee.
Section 17-30-60. When the prosecutor's review committee has
determined that a person satisfies the definition of a sexually violent
predator, the Attorney General may file a petition with the circuit
court in the jurisdiction where the person committed the offense,
within thirty days, requesting that the court make a probable cause
determination as to whether the person is a sexually violent predator.
The petition must allege that the person is a sexually violent predator
and must state sufficient facts to support the allegation.
Section 17-30-70. (A) Upon the filing of a petition pursuant to
Section 17-30-60, the court shall determine whether probable cause
exists to believe that the person named in the petition is a sexually
violent predator. If the court determines that the person is a sexually
violent predator, the person must be taken into custody if he is not
already confined in a secure facility.
(B) Within seventy-two hours after a judicial determination that a
person is a sexually violent predator, the person must be provided
with notice of, and an opportunity to appear at, a hearing to contest
the judicial determination of probable cause that the person is a
sexually violent predator. At this hearing the person has the
following rights:
(1) to be represented by counsel;
(2) to present evidence on his behalf;
(3) to cross-examine witnesses who testify against him; and
(4) to view and copy all reports which were relied upon to make
the allegations brought forth in the petition filed by the Attorney
General.
(C) At the hearing the court must:
(1) verify the person's identity; and
(2) determine whether probable cause exists to believe that the
person is a sexually violent predator.
The State may be represented at this hearing and may rely upon the
petition filed by the Attorney General and supplement that petition
with additional evidence, including testimony by any relevant party.
(D) At the conclusion of the contested hearing, if the court
determines that probable cause exists to believe the person is a
sexually violent predator, the court shall direct that the person be
transferred to an appropriate secure facility including, but not limited
to, a county jail or a state correctional facility, for an evaluation by
an expert as to whether the person is a sexually violent predator. The
evaluation must be conducted by a person who is an expert in the
field of sexual disorders.
Section 17-30-80. (A) Within sixty days after the completion of
the contested hearing held pursuant to Section 17-30-70(B), the court
must conduct a trial to determine whether the person is a sexually
violent predator. The trial may be continued upon the request of
either party and a showing of good cause, or by the court on its own
motion in the due administration of justice. The trial must not be
continued if either party would be substantially prejudiced by a
continuance. The trial must be conducted before a jury if either the
person or the Attorney General request a jury trial. A request for a
jury trial must be filed, in writing, at least four days before the trial.
If no request is made, the trial shall be before the court. The court or
jury must determine whether, beyond a reasonable doubt, the person
is a sexually violent predator. If a jury trial is held, twelve jurors must
make the determination by a unanimous verdict. The South Carolina
Rules of Criminal Procedure shall apply at the trial. The
determination made by the court or jury may be appealed.
(B) If the court or jury determines beyond a reasonable doubt that
the person is a sexually violent predator, the person must be
committed to the custody of the Department of Mental Health for
control, care, and treatment until such time as the person's mental
abnormality or personality disorder has so changed that it is unlikely
the person would engage in predatory acts of sexual violence. The
control, care, and treatment must be provided at a facility operated by
the Department of Mental Health. A person committed to the
Department of Mental Health pursuant to this section must be kept in
a secure facility and must be segregated at all times from other
patients under the supervision of the department. Beginning on July
1, 1998, a person committed pursuant to this section must be kept in
a facility or building separate from any other patient under the
supervision of the Department of Mental Health. The Department of
Mental Health may enter into an interagency agreement with the
Department of Corrections for the confinement of persons determined
to be sexually violent predators. A person who is confined in a
facility operated by the Department of Corrections pursuant to an
interagency agreement must be housed separately from other
offenders in the custody of the Department of Corrections and, except
for occasional instances of supervised incidental contact, must be
segregated from these offenders at all times. If the court or jury does
not determine, beyond a reasonable doubt, that the person is a
sexually violent predator, the court must direct the person's release
from custody. If a mistrial occurs, the court must direct that the
person remain in custody until another trial is held. After a mistrial,
a subsequent trial must be held within ninety days, unless the
subsequent trial is continued as provided for in Section 17-30-60(A).
Section 17-30-90. If a person charged with a sexually violent
offense has been found incompetent to stand trial and is about to be
released from custody, but the person's commitment is sought
pursuant to Section 17-30-80(B), the court must first determine
whether the person committed the offense or offenses with which he
is charged. The hearing on this issue shall be a contested proceeding
before a court of competent jurisdiction, and the South Carolina
Rules of Criminal Procedure shall apply at the hearing. In addition,
all constitutional rights available to a defendant at a criminal trial
shall apply at the hearing, other than the right not to be tried while
incompetent. At the hearing, the court shall make the following
findings:
(1) Whether the person committed the offense or offenses
charged;
(2) The extent to which the person's developmental disability
affected the outcome of the hearing, including its effect on the
person's ability to consult with and assist counsel and to testify on the
person's own behalf;
(3) The extent to which the evidence could be reconstructed
without the assistance of the person; and
(4) The strength of the prosecution's case.
If the court finds, beyond a reasonable doubt, that the person did
commit the offense or offenses with which he is charged, the court
shall enter a final order on that issue, appealable by the person, and
may proceed to consider whether the person should be civilly
committed as a sexually violent predator pursuant to the proceedings
in this chapter.
Section 17-30-100. A person committed under this chapter must
have an annual examination to determine his mental condition. The
person may retain an independent examiner of his own choosing, or
if the person is indigent and requests an independent examiner, the
court may appoint a qualified professional to examine the person.
The examiner shall have access to all records and reports including,
but not limited to, medical, psychological, treatment, criminal offense
and disciplinary records, and any other records formulated while the
person was confined or under supervision. A report of the annual
examination must be provided to the court which committed the
person under this chapter. Relying on the annual report, the court
shall review the status of the committed person.
Section 17-30-110. If the Director of the Department of Mental
Health determines that the person's mental abnormality or personality
disorder has so changed that it is unlikely the person would engage
in predatory acts of sexual violence, the director shall authorize the
person to petition the court which committed him, at any time, for
release from custody. The petition shall be served on the court which
committed the person and on the Attorney General. The court, upon
receipt of the petition for release, must order a hearing within thirty
days. The committed person has the right to have an attorney
represent him at the hearing. The committed person is entitled to be
present at the hearing, is entitled to the benefit of all constitutional
protections that were afforded him at the initial commitment
proceeding, and the South Carolina Rules of Criminal Procedure shall
apply. The Attorney General shall represent the State. The hearing
must be before a jury if requested by either the petitioner or the
Attorney General. A request for the hearing to be before a jury must
be filed, in writing, at least four days before the hearing. If no
request is made, the hearing shall be before the court. If the hearing
is before a jury, twelve jurors shall make the determination as to
whether the person remains a sexually violent predator and that
determination shall be by a unanimous verdict. The person and the
Attorney General each has the right to have the person evaluated by
experts of their own choosing. The court shall appoint an expert if
the person is indigent and requests an expert of his choosing. The
burden of proof at the hearing is on the State to prove beyond a
reasonable doubt that the person's mental abnormality or personality
disorder remains such that the person is likely to engage in predatory
acts of sexual violence if not confined in a secure facility. If there is
not proof beyond a reasonable doubt that the person's mental
abnormality or personality disorder remains such that the person is
likely to engage in predatory acts of sexual violence, the person must
be released from custody.
Section 17-30-120. The Director of the Department of Mental
Health shall provide the committed person with an annual written
notice of the person's right to petition the court for release over the
director's objection. The notice shall contain a waiver of rights. The
director shall forward the notice and waiver form to the court along
with the annual report provided for in Section 17-30-100. If the
committed person chooses to petition the court for release, he must
serve a petition on the court which committed him and he must also
serve the Attorney General. The court, upon receipt of the petition
for release, shall order a hearing within thirty days. The committed
person has the right to have an attorney represent him at the hearing.
The committed person is entitled to be present at the hearing, is
entitled to the benefit of all constitutional protections that were
afforded him at the initial commitment proceeding, and the South
Carolina Rules of Criminal Procedure shall apply. The Attorney
General shall represent the State. The hearing must be before a jury
if requested by either the petitioner or the Attorney General. A
request for the hearing to be before a jury must be filed, in writing,
at least four days before the hearing. If no request is made, the
hearing shall be before the court. If the hearing is before a jury,
twelve jurors shall make the determination as to whether the person
remains a sexually violent predator and that determination must be by
a unanimous verdict. The person and the Attorney General each have
the right to have the person evaluated by experts of their own
choosing. The court shall appoint an expert if the person is indigent
and requests an expert of his choosing. The burden of proof at the
hearing is on the State to prove beyond a reasonable doubt that the
person's mental abnormality or personality disorder remains such that
the person is likely to engage in predatory acts of sexual violence if
not confined in a secure facility. If there is not proof beyond a
reasonable doubt that the person's mental abnormality or personality
disorder remains such that the person is likely to engage in predatory
acts of sexual violence if not confined in a secure facility, then the
person must be released from custody.
Section 17-30-130. A person is entitled to the assistance of
counsel at all court proceedings provided for in this chapter. If the
person is indigent, the court must appoint counsel to assist him. If a
person is subjected to an examination under this chapter, he may
retain experts of his own choosing to perform the examination. All
examiners are permitted to have reasonable access to the person for
purposes of the examination, as well as access to all relevant medical,
psychological, criminal offense, and disciplinary records and reports.
In the case of a person who is indigent but who would like an expert
of their own choosing, the court shall determine whether the services
are necessary. If the court determines that the services are necessary
and the expert's requested compensation is reasonable, the court must
assist the person in obtaining an expert and shall approve payment for
the services. Payment shall be approved after the filing of a certified
claim for compensation supported by a written statement specifying
the time expended, services rendered, expenses incurred, and any
compensation received in this case or for the same services from any
other source.
Section 17-30-140. Relevant information and records which are
confidential or privileged must be released to the agency with
jurisdiction over the person and to the Attorney General if the
information is relevant in determining whether a person is or
continues to be a sexually violent predator.
Section 17-30-150. Psychological reports, drug and alcohol
reports, treatment records, medical records, criminal offense records,
disciplinary records and victim impact statements which have been
submitted to the court or admitted into evidence pursuant to this
chapter must be made part of the record and then sealed. These
records may only be opened by an order of the court.
Section 17-30-160. The agency with jurisdiction over the person,
its employees, officials, members of the multidisciplinary team,
members of the prosecutor's review committee, and individuals who
are contracted, appointed, or who volunteer to perform services
provided for in this chapter, who act in good faith are immune from
civil and criminal liability which might otherwise result by reason of
their actions under this chapter. In all such civil and criminal
proceedings good faith is rebuttably presumed.
Section 17-30-170. A person released pursuant to this chapter
who must register as a sex offender pursuant to Article 7, Chapter 3,
Title 23 must comply with Article 7, Chapter 3, Title 23."
SECTION 2. Section 16-3-1560, as last amended by Act No. 141
of 1997, is further amended to read:
"Section 16-3-1560. (A) The Department of Corrections, the
Department of Probation, Parole, and Pardon Services, the Board of
Juvenile Parole, or the Department of Juvenile Justice, as appropriate,
reasonably must attempt to notify each victim of post-conviction
proceedings affecting the probation, parole, or release of the offender,
including proceedings brought under Chapter 30 of Title 17,
and of the victim's right to attend and comment at these proceedings.
This notification must be made sufficiently in advance to allow the
victim to exercise his rights as they pertain to post-conviction
proceedings.
(B) The Attorney General, upon receiving notice of appeal or other
post-conviction action by an offender convicted of or adjudicated
guilty for committing an offense involving one or more victims, must
request from the Department of Corrections, the Department of
Probation, Parole, and Pardon Services, the Board of Juvenile Parole,
or the Department of Juvenile Justice, as appropriate, the victim's
personal information.
(C) The Department of Corrections, the Department of Probation,
Parole, and Pardon Services, the Board of Juvenile Parole, or the
Department of Juvenile Justice, upon receipt of request for the
victim's personal information from the Attorney General in an appeal
or post-conviction proceeding, must supply the requested information
within a reasonable period of time.
(D) The Attorney General must confer with victims regarding the
defendant's appeal and other post-conviction proceedings,
including proceedings brought under Chapter 30 of Title 17.
(E) The Attorney General must keep each victim reasonably
informed of the status and progress of the appeal or other
post-conviction proceedings, including proceedings brought
under Chapter 30 of Title 17, until their resolution.
(F) The Attorney General reasonably must attempt to notify a
victim of all post-conviction proceedings, including proceedings
brought under Chapter 30 of Title 17, and of the victim's right to
attend. This notification must be made sufficiently in advance to
allow the victim to exercise his rights pertaining to post-conviction
proceedings."
SECTION 3. If a provision of this act or the application of a
provision of this act to a person or circumstance is held to be invalid,
the invalidity does not affect other provisions or applications of this
act which can be given effect without the invalid provision or
application, and to this end the provisions of this act are severable.
SECTION 4. This act takes effect upon approval by the Governor
and is to be applied prospectively and retroactively to all person who
have charges pending or who are currently incarcerated or otherwise
confined in a secure facility for an offense provided for in Section
17-30-20(2).
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