H 4057 Session 112 (1997-1998)
H 4057 General Bill, By J. Brown, A.W. Byrd, Davenport, M. Hines, Inabinett,
Mack, Moody-Lawrence, Rhoad, Riser and Scott
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 44-23-210, 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 44-23-410, 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 44-23-420, RELATING TO DESIGNATION EXAMINERS' REPORTS, SO AS TO
DELETE EXISTING PROVISIONS AND TO PROVIDE THAT COMPETENCY PROVISIONS OF THIS
ACT APPLY; TO AMEND SECTION 44-23-460, 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 44-23-430, RELATING TO FITNESS TO STAND TRIAL;
AND CHAPTER 24, TITLE 17, RELATING TO MENTALLY ILL OR INSANE DEFENDANTS.
04/22/97 House Introduced and read first time HJ-9
04/22/97 House Referred to Committee on Judiciary HJ-10
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
44-23-210, 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 44-23-410, 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 44-23-420,
RELATING TO DESIGNATED EXAMINERS' REPORTS, SO AS
TO DELETE EXISTING PROVISIONS AND TO PROVIDE THAT
COMPETENCY PROVISIONS OF THIS ACT APPLY; TO
AMEND SECTION 44-23-460, 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 44-23-430, 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 17-28-5. This chapter may be cited as the 'Mentally Ill
Offender Act'.
Section 17-28-10. 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 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 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 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 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 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 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? _______
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
4 is yes, is it in the best interest of the
defendant and others that the defendant
be placed in treatment that is less restric-
tive 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 person'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. 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 must 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. The
report shall meet the requirements of Section 17-28-60(C).
(G) If the court finds that there is no evidence of incompetency as
a result of mental illness but there is reason to suspect mental
retardation, the court shall order examination of the defendant by the
Department of Disabilities and Special Needs. All requirements of
Section 17-28-90 apply except that the Department of Disabilities
and Special Needs is the responsible agency.
(H) If the court finds that there is evidence of both mental illness
and mental retardation, the commitment for evaluation and treatment
under this section shall meet the needs as caused by both deficiencies.
(I) If the court finds that there is evidence of mental retardation
but no mental illness, the case must be remanded to the court.
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) It is an affirmative defense to a
prosecution for a crime that, at the time of the commission of the act
constituting the offense, the defendant, as a result of mental disease
or defect, lacked the capacity to distinguish moral or legal right from
moral or legal wrong or to recognize the particular act charged as
morally or legally wrong.
(B) The defendant has the burden of proving the defense of
insanity by a preponderance of the evidence.
(C) Evidence of a mental disease or defect that is manifested
only by repeated criminal or other antisocial conduct is not sufficient
to establish the defense of insanity,
Section 17-28-120. In a prosecution for a crime when the
affirmative defense of insanity is raised sufficiently by the defendant,
or when sufficient evidence of a mental disease or defect of the
defendant is admitted into evidence, the trier of fact shall find under
the applicable law, and the verdict must so state, whether the
defendant is:
(1) guilty;
(2) not guilty; or
(3) not guilty by reason of insanity.
Section 17-28-130. (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 in a state mental hospital, the department
immediately shall cause the defendant to be committed to the
mentally ill offender program as provided for in Section 17-28-140.
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 17-28-140. (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) mentally ill offender 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
offender 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 17-28-150. 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 17-28-160. 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 and submit a periodic
report. 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 17-28-170. (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. At the same
time the director 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.
(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. In either case the person must be returned to the custody
of the department for as long as is necessary to make provisions for
a safe and orderly discharge and in no case longer than seven days.
(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 17-28-180. 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 17-28-190. The director 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.
Section 17-28-200. (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 17-28-210. 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 17-28-220. 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 17-28-230. (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 17-28-240. (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.
Section 17-28-250. (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 17-28-260. 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 17-28-270. 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 17-28-280. 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 commission of the offense or
as provided for in this chapter for obtaining release from
confinement.
Section 17-28-290. 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.
(4) deny the right to petition for a writ of habeas corpus.
(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?
(3) Is there any constitutional ex post facto violation?
SECTION 3. Section 44-23-210 of the 1976 Code, as last amended
by Act 181 of 1993, is further amended by adding at the end:
"This section does not apply to patients committed to a mentally ill
offender program under Chapter 28, Title 17."
SECTION 4. Section 44-23-410 of the 1976 Code, as last amended
by Act 181 of 1993, is further amended to read:
"Section 44-23-410. Whenever a judge of the circuit court or
family court has reason to believe that a person on trial before him,
charged with the commission of a criminal offense or civil contempt,
is not fit to stand trial because the person lacks the capacity to
understand the proceedings against him or to assist in his own
defense as a result of a lack of mental capacity, the judge
shall, on his own motion, or the motion of any party, shall
order examination of the person in accordance with the requirements
of Section 17-28-60 and shall:
(1) order examination of the person by two examiners
designated by the Department of Mental Health if the person is
suspected of having a mental illness or designated by the Department
of Disabilities and Special Needs if the person is suspected of being
mentally retarded or having a related disability or by both sets of
examiners if the person is suspected of having both mental illness and
mental retardation or a related disability; the examination must be
made within fifteen days after the receipt of the court's order and
may be conducted in any suitable place unless otherwise designated
by the court; or
(2) order the person committed for examination and observation
to an appropriate facility of the Department of Mental Health or the
Department of Disabilities and Special Needs for a period not to
exceed fifteen days. If at the end of fifteen days the examiners have
been unable to determine whether the person is fit to stand trial, the
director of the facility shall request in writing an additional period for
observation not to exceed fifteen days. If the person or his counsel
requests, the person may be examined additionally by a designated
examiner of his choice. The report of the examination is admissible
as evidence in subsequent hearings pursuant to Section 44-23-430.
However, the court may prescribe the time and conditions under
which the independent examination is conducted. If the examiners
designated by the Department of Mental Health find indications of
mental retardation or a related disability but not mental illness, the
department shall not render an evaluation on the person's mental
capacity, but shall inform the court that the person is 'not mentally ill'
and recommend that the person should be evaluated for competency
to stand trial by the Department of Disabilities and Special Needs. If
the examiners designated by the Department of Disabilities and
Special Needs find indications of mental illness but not mental
retardation or a related disability, the department shall not render an
evaluation on the person's mental capacity, but shall inform the court
that the person does 'not have mental retardation or a related
disability' and recommend that the person should be evaluated for
competency to stand trial by the Department of Mental Health. If
either the Department of Mental Health or the Department of
Disabilities and Special Needs finds a preliminary indication of a
dual diagnosis of mental illness and mental retardation or a related
disability, this preliminary finding must be reported to the court with
the recommendation that one examiner from the Department of
Mental Health and one examiner from the Department of Disabilities
and Special Needs be designated to further evaluate the person and
render a final report on his mental capacity. The requirements of
Section 17-28-60(B), Section 17-28-60(C)(1)(2)(3) and Section
17-28-70 apply to this section."
SECTION 5. Section 44-23-420 of the 1976 Code is amended to
read:
"Section 44-23-420. Within five days of examination under
Section 44-23-410(1) or at the conclusion of the observation period
under Section 44-23-410(2), the designated examiners shall make a
written report to the court which shall include:
(1) A diagnosis of the person's mental
condition, and
(2) Clinical findings bearing on the issues of
whether or not the person is capable of understanding the proceedings
against him and assisting in his own defense, and if there is a
substantial probability that he will attain that capacity in the
foreseeable future.
The report of the designated examiners shall not contain
any findings nor shall the examiners testify on the question of
insanity should it be raised as a defense unless further examination
on the question of insanity is ordered by the court. The
provisions of Section 17-28-90 apply to this article."
SECTION 6. Section 44-23-460 of the 1976 Code is amended to
read:
"Section 44-23-460. When the superintendent of a hospital or
mental retardation facility believes that a person against whom
criminal charges are pending no longer requires hospitalization, the
court in which criminal charges are pending shall be notified and
shall set a date for and notify the person of a hearing on the issue of
fitness pursuant to Section 44-23-430. At such time, the
person shall be entitled to assistance of counsel.
(1) If upon the completion of the hearing, the court finds the
person unfit to stand trial, it shall order his release from the hospital;
and
(2) If such a person has been hospitalized for a period of time
exceeding the maximum possible period of imprisonment to which
the person could have been sentenced if convicted as charged, the
court shall order the charges dismissed and the person released; or
(3) The court may order that criminal proceedings against a
person who has been found fit to stand trial be resumed, or the court
may dismiss criminal charges and order the person released if so
much time has elapsed that prosecution would not be in the interest
of justice. This section does not apply to patients committed to
a mentally ill offender program under Chapter 28, Title 17."
SECTION 7. Section 44-23-430 and Chapter 24, Title 17 of the
1976 Code are repealed.
SECTION 8. This act takes effect July 1, 1998.
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