Current Status Bill Number:502 Type of Legislation:General Bill GB Introducing Body:Senate Introduced Date:19950214 Primary Sponsor:Passailaigue All Sponsors:Passailaigue Drafted Document Number:RES9633.ELP Residing Body:Senate Current Committee:Judiciary Committee 11 SJ Subject:Defense by reason of mental disease
Body Date Action Description Com Leg Involved
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Senate 19950214 Introduced, read first time, 11 SJ
referred to Committee
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TO AMEND TITLE 17, CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 26 AND REPEALING CHAPTER 24 SO AS TO ABOLISH THE DEFENSE OF NOT GUILTY BY REASON OF INSANITY AND CREATING GUILTY BY REASON OF MENTAL DISEASE OR DEFECT.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 17 of the 1976 Code is amended by adding:
Section 17-26-10. As used in this chapter, the term `mental disease or defect' does not include an abnormality manifested only by repeated criminal or other antisocial behavior.
Section 17-26-20. Evidence that the defendant suffered from a mental disease or defect is admissible to prove that the defendant did or did not have a state of mind that is an element of the offense.
Section 17-26-30. A person who, as a result of mental disease or defect, is unable to understand the proceedings against the person or to assist in the person's own defense may not be tried, convicted, or sentenced for the commission of an offense so long as the incapacity endures.
Section 17-26-40. When the defendant is found not guilty of the charged offense or offenses or any lesser included offense for the reason that due to a mental disease or defect the defendant did not have a particular state of mind that is an essential element of the
offense charged, the verdict and the judgment must state that reason.
Section 17-26-50. (A) The issue of the defendant's fitness to proceed may be raised by the court, the defendant or the defendant's counsel, or by the prosecutor. When the issue is raised, it must be determined by the court. If neither the prosecutor nor counsel for the defendant contests the court's findings, the court may make the determination on the basis of the report prepared by the psychiatrist or licensed clinical psychologist who has evaluated the defendant. If the finding is contested, the court shall hold a hearing on the issue. If the report is received in evidence upon the hearing, the parties have the right to subpoena and cross-examine the psychiatrists or licensed clinical psychologists who joined in the report and to offer evidence upon the issue.
(B) If the court determines that the defendant lacks fitness to proceed, the proceeding against the defendant must be suspended. An examination of the defendant shall be made to determine the need for hospitalization of the defendant pursuant to the standards set forth in Chapter 17 of Title 44 of the 1976 Code.
(C) The fact that the defendant is unfit to proceed does not preclude any legal objection to the prosecution that is susceptible to fair determination prior to trial and without the personal participation of the defendant.
(D) The expenses of sending the defendant to the custody of the South Carolina Department of Mental Health, of keeping the defendant in an appropriate institution, and of bringing the defendant back are chargeable to the State.
Section 17-26-60. (A) When a defendant is found not guilty for the reason that due to a mental disease or defect the defendant could not have a particular state of mind that is an essential element of the offense charged, the court shall order a predisposition investigation in accordance with Chapter 17 of Title 44 of the 1976 Code, which must include an investigation of the present mental condition of the defendant. If the trial was by jury, the court shall hold a hearing to determine the appropriate disposition of the defendant. If the trial was by the court, the court may hold a hearing to obtain any additional testimony it considers necessary to determine the appropriate disposition of the defendant. In either case, the testimony and evidence presented at the trial must be considered by the court in making its determination.
(B) The court shall evaluate the nature of the offense with which the defendant was charged.
(1) If the offense:
(a) involved a substantial risk of serious bodily injury or death, actual bodily injury, or substantial property damage, the court may find that the defendant suffers from a mental disease or defect that renders the defendant a danger to the defendant or others. If the court finds that the defendant presents a danger to the defendant or others, the defendant may be committed to the custody of the South Carolina Department of Mental Health to be placed in the South Carolina State Hospital for custody, care, and treatment. However, if the court finds that the defendant is seriously developmentally disabled, as defined in Section 43-33-340, the prosecutor shall petition the court in the manner provided in Chapter 17 of Title 44 of the 1976 Code;
(b) charged did not involve a substantial risk of serious bodily injury or death, actual bodily injury, or substantial property damage, the court shall release the defendant. The prosecutor may petition the court in the manner provided in Chapter 17 of Title 44 of the 1976 Code.
(2) A person committed to the custody of the South Carolina Department of Mental Health must have a hearing within 120 days of confinement to determine the person's present mental condition and whether the person must be discharged or released or whether the commitment may be extended because the person continues to suffer from a mental disease or defect that renders the person a danger to the person or others. The hearing must be conducted by the court that ordered the commitment unless that court transfers jurisdiction to the circuit court in the circuit in which the person has been placed. The court shall cause notice of the hearing to be served upon the person, the person's counsel, the prosecutor, and the court that originally ordered the commitment. The hearing is a civil proceeding, and the burden is upon the State to prove by clear and convincing evidence that the person may not be safely released because the person continues to suffer from a mental disease or defect that causes the person to present a substantial risk of:
(a) serious bodily injury or death to the person or others;
(b) an imminent threat of physical injury to the person or others; or
(c) substantial property damage.
(3) According to the determination of the court upon the hearing, the person must be discharged or released on conditions the court determines to be necessary or must be committed to the custody of the South Carolina Department of Mental Health to be placed in the South Carolina State Hospital for custody, care, and treatment.
(4) A professional person shall review the status of the person each year. At the time of the annual review, the Commissioner of the prison system or the person or the representative of the person may petition for discharge or release of the person. Upon request for a hearing, a hearing must be held pursuant to the provisions of subsection (2).
Section 17-26-70. (A) If the discharge or release of the committed individual is recommended pursuant to Section 44-17-810, on condition without danger to the person or others because the person no longer suffers from a mental disease or defect that causes the person to present a substantial risk of serious bodily injury or death to the person or others, a substantial risk of an imminent threat of physical injury to the person or others, or a substantial risk of substantial property damage, the South Carolina Department of Mental Health shall make application for the discharge or release of the person in a report to the circuit court by which the person was committed unless that court transfers jurisdiction to the court in the circuit in which the person has been placed and shall send a copy of the application and report to the prosecutor of the county from which the person was committed.
(B) Either the South Carolina Department of Mental Health or the person may also make application to the court for discharge or release as part of the person's annual treatment review.
(C) The court shall then appoint at least one person who is either a qualified psychiatrist or licensed clinical psychologist to examine the person and to report as to the person's mental condition within sixty days or a longer period that the court determines to be necessary for the purpose. To facilitate the examinations and the proceedings on the examinations, the court may have the person confined in any mental health facility located near the place where the court sits that may be designated by the South Carolina Department of Mental Health as suitable for the temporary detention of persons suffering from mental disease or defect.
(D) The committed person or the person's attorney may secure a professional person of the committed person's choice to examine the committed person and to testify at the hearing. If the person wishing to secure the testimony of a professional person is unable to do so because of financial reasons, the court shall appoint an additional professional person to perform the examination. Whenever possible, the court shall allow the committed person or the person's attorney a reasonable choice of an available professional person qualified to perform the requested examination. The professional person must be compensated by the department of corrections and human services.
(E) If the court is satisfied by the report filed under subsection (A) and the testimony of the reporting psychiatrist or licensed clinical psychologist that the committed person may be discharged or released on condition because the person no longer suffers from a mental disease or defect that causes the person to present a substantial risk of serious bodily injury or death to the person or others, a substantial risk of an imminent threat of physical injury to the person or others, or a substantial risk of substantial property damage, the court shall order the person's discharge.
(F)(1)If the court is not satisfied, it shall promptly order a hearing to determine whether the person may safely be discharged or released on the grounds that the person no longer suffers from a mental disease or defect that causes the person to present a substantial risk of:
(a) serious bodily injury or death to the person or others;
(b) an imminent threat of physical injury to the person or others; or
(c) substantial property damage.
(2) The hearing is a civil proceeding, and the burden is upon the State to prove by clear and convincing evidence that the person may not be safely discharged or released because the person continues to suffer from a mental disease or defect that causes the person to present a substantial risk of:
(a) serious bodily injury or death to the person or others;
(b) an imminent threat of physical injury to the person or others; or
(c) substantial property damage.
(3) According to the determination of the court upon the hearing, the committed person must then be discharged or released on conditions that the court determines to be necessary or must be recommitted to the custody of the South Carolina Department of Mental Health, subject to discharge or release only in accordance with the procedures provided in this Section and Section 44-17-810.
Section 17-26-80. A committed person may make application for discharge or release to the circuit court by which the person was committed unless that court transfers jurisdiction to the court in the circuit in which the person has been placed, and the procedure to be followed upon the application is the same as that prescribed in Chapter 17 of Title 44 of the 1976 Code in the case of an application by the South Carolina Department of Mental Health. However, an application by a committed person need not be considered until the person has been confined for a period of not less than 6 months from the date of the order of commitment, and if the determination of the court is adverse to the application, the person may not be permitted to file a further application until one year has elapsed from the date of any preceding hearing on an application for the person's release or discharge.
Section 17-26-90. (A) The court may order revocation of a person's conditional release if the court determines after hearing evidence that:
(1) the conditions of release have not been fulfilled; and
(2) based on the violations of the conditions and the person's past mental health history, there is a substantial likelihood that the person continues to suffer from a mental disease or defect that causes the person to present a substantial risk of:
(a) serious bodily injury or death to the person or others;
(b) an imminent threat of physical injury to the person or others; or
(c) substantial property damage.
(B) The court may retain jurisdiction to revoke a conditional release for no longer than five years.
(C) If the court finds that the conditional release should be revoked, the court shall immediately order the person to be recommitted to the custody of the Commissioner of the prison system, subject to discharge or release only in accordance with the procedures provided in Section 44-17-810.
Section 17-26-100. Whenever a defendant is convicted on a verdict or a plea of guilty and claims that at the time of the commission of the offense of which convicted the defendant was suffering from a mental disease or defect that rendered the defendant unable to appreciate the criminality of the defendant's behavior or to conform the defendant's behavior to the requirements of law, the sentencing court shall consider any relevant evidence presented at the trial and shall require additional evidence as it considers necessary for the determination of the issue, including examination of the defendant and a report of the examination.
Section 17-26-110. (A) If the court finds that the defendant at the time of the commission of the offense of which the defendant was convicted did not suffer from a mental disease or defect as described in Section 17-26-100, the court shall sentence the defendant pursuant to normal sentencing guidelines commensurate with the offense to which the defendant is convicted.
(B) If the court finds that the defendant at the time of the commission of the offense suffered from a mental disease or defect as described in Section 17-26-100, any mandatory minimum sentence prescribed by law for the offense need not apply and the court shall sentence the defendant to be committed to the custody of the South Carolina Department of Mental Health to be placed in the South Carolina State Hospital for custody, care, and treatment for a definite period of time not to exceed the maximum term of imprisonment that could be imposed under subsection (A).
(C) Either the Commissioner of the prison system or a defendant whose sentence has been imposed under subsection (B) may petition the sentencing court for review of the sentence if the professional person certifies that:
(1) the defendant no longer suffers from a mental disease or defect;
(2) the defendant's mental disease or defect no longer renders the defendant unable to appreciate the criminality of the defendant's conduct or to conform the defendant's conduct to the requirements of law;
(3) the defendant suffers from a mental disease or defect but is not a danger to the defendant or others; or
(4) the defendant suffers from a mental disease or defect that makes the defendant a danger to the defendant or others, but:
(a) there is no treatment available for the mental disease or defect;
(b) the defendant refuses to cooperate with treatment; or
(c) the defendant will no longer benefit from active inpatient treatment for the mental disease or defect.
(D) The sentencing court may make any order not inconsistent with its original sentencing authority except that the length of confinement or supervision must be equal to that of the original sentence. The professional person hired by the defendant or appointed by the court shall review the defendant's status each year."
SECTION 2. Chapter 24, Title 17 of the 1976 Code is repealed.
SECTION 3. This act takes effect upon approval by the Governor.