Current Status Bill Number:4057 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19970422 Primary Sponsor:J. Brown All Sponsors:J. Brown, M. Hines, Inabinett, Scott, Moody-Lawrence, Mack, Byrd, Rhoad, Riser and Davenport Drafted Document Number:psd\7230ac.97 Residing Body:House Current Committee:Judiciary Committee 25 HJ Subject:Mentally Ill Offender Act, Mental Health, Courts, mental evaluation of persons' ability to stand trial, Crimes
Body Date Action Description Com Leg Involved
______ ________ _______________________________________ _______ ____________
House 19970422 Introduced, read first time, 25 HJ
referred to Committee
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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:
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.