South Carolina General Assembly
112th Session, 1997-1998

Bill 969


Indicates Matter Stricken
Indicates New Matter


                    Current Status

Bill Number:                    969
Type of Legislation:            General Bill GB
Introducing Body:               Senate
Introduced Date:                19980129
Primary Sponsor:                Holland 
All Sponsors:                   Holland 
Drafted Document Number:        jud9020.dhh
Residing Body:                  Senate
Subject:                        Sexually Violent Predator Act,
                                Crimes and Offenses, Sex offenses,
                                Mental Health Department

History

Body    Date      Action Description                       Com     Leg Involved
______  ________  _______________________________________  _______ ____________

Senate  19980521  Recalled from Committee                  11 SJ
Senate  19980129  Introduced, read first time,             11 SJ
                  referred to Committee


View additional legislative information at the LPITS web site.


(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

Indicates Matter Stricken
Indicates New Matter

RECALLED

May 21, 1998

S. 969

Introduced by Senator Holland

S. Printed 5/21/98--S.

Read the first time January 29, 1998.

STATEMENT OF ESTIMATED FISCAL IMPACT

ESTIMATED FISCAL IMPACT ON GENERAL FUND EXPENDITURES IS:

An Additional Cost to the General Fund of the State as Shown Below

Prosecution Coordination Commission:

The commission indicates that implementation of the requirements of this bill will not directly affect the Prosecution Coordination Commission. The Attorney General shall appoint a prosecutor's review team of which one member shall be a circuit solicitor and shall assist the Attorney General in the determination of whether or not the person satisfies the definition of a sexually violent predator. Implementation of this legislation would have minimal impact and costs can be absorbed.

Department of Probation, Pardon and Parole (DPPPS):

The department would be required to notify the Attorney General and solicitors of the parole of persons who committed a sexually violent offense. The department indicates that implementation of the requirements of this bill would have no impact on the General Fund of the State.

Department of Juvenile Justice (DJJ):

The department would be required to notify the Attorney General and solicitors of the conditional release of persons who committed a sexually violent offense. In addition, it is likely that some offenders would remain in DJJ custody until it is determined if an offender is also a sexually violent predator. DJJ indicates that implementation of these requirements would be minimal and costs could be absorbed within existing resources.

Attorney General's Office

The Attorney General's Office will be required to review the records of each referral to determine if the person meets the definition of a sexually violent predator. The agency estimates recurring personnel costs of $138,600 for two attorneys and one paralegal. Operating costs would consist of $18,000 recurring and $19,500 nonrecurring funds.

Judicial Department

The Judicial Department estimates the cost of implementation would be $844,093 in recurring dollars and $96,060 in non-recurring dollars for three new Circuit Court judges in the first year. An additional four judges would be needed over the next five years at a cost of $281,365 in recurring funds and $32,020 in non-recurring funds per judge, totaling seven new judges costing $1,969,553 in recurring funds and $224,140 in non-recurring funds. These costs are based on the number of probable cause hearings, commitment trials, annual reviews, discharge hearings, and trials requested after a discharge hearing. The judicial estimate is based on the assumption that all sexually violent offenders would satisfy the definition of a sexually violent predator and, therefore a probable cause hearing would be necessary. However, actual funding needs could be less if only a portion of sexually violent offenders are determined to be sexually violent predators as determined by the prosecutor's review committee.

Department of Corrections (SCDC)

SCDC indicates that recurring costs associated with the legislation would be minimal and can be absorbed provided the agency is not responsible for any additional evaluations in order for the courts to identify sexually violent predators. However, the Department of Mental Health may enter into an interagency agreement with the Department of Corrections for the confinement of persons determined to be sexually violent predators (see Estimated Operating Cost below).

It is anticipated that enactment of this legislation would result in the need for an additional facility or facilities. The Department of Corrections estimates the cost of new facility construction at approximately $35,000 per bed. However, construction costs could be greater since the facility would need to accommodate a treatment program developed by DMH. Total facility costs would depend on the size of the facility or facilities to be constructed. Although the costs of evaluations is reflected in the Department of Mental Health response, these costs could be associated with SCDC. There is no cost avoidance to SCDC since offenders serve the required sentence before release and evaluation.

Department of Mental Health (DMH):

For fiscal impact statement purposes it is assumed that DMH would conduct the evaluations (pursuant to a contested hearing) to determine if a sexually violent offender is also a sexually violent predator. The number of sexually violent offenders scheduled to be released by the Department of Corrections each year is estimated at 335 (based on a two year average). DMH estimates the annual average number of individuals to be evaluated is 84 (25% of the number of offenders scheduled for release). The cost per evaluation is estimated at $5,000. Therefore, the annual cost of evaluations would be approximately $420,000. DMH indicates it would either have to contract for these evaluation or pay existing staff overtime to conduct these evaluations.

Estimated Operating Costs

The number of individuals released by the Department of Corrections who would be committed under these statutes is estimated at between 17 and 34 annually (5% to 10% of the number of offenders released). The National Association of State Mental Health Program Directors surveyed other states that have implemented similar legislation. Of those states with experience under similar laws, the annual cost of commitment and treatment is between $65,600 and $127,500 per patient. Therefore, the cost of commitment and treatment for the first year is estimated at between $1.1 million and $4.3 million depending on the type of treatment program developed and the rate of commitments. Total costs would continue to increase each year until the committed population stabilized. However, it is not known at what point the patient population would stabilize or how many patients would be in the program at that time. Although there could be patients received from DJJ and other agencies, it is anticipated that the majority of patients would come from the Department of Corrections.

The Department of Mental Health is continuing to gather information concerning the potential programmatic and fiscal impact on the department. More accurate data may become available as DMH continues to collect and analyze this information.

Approved By:

Frank A. Rainwater

Office of State Budget

A BILL

TO AMEND TITLE 17, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO CRIMINAL PROCEDURES, BY ADDING CHAPTER 30, SO AS TO ENACT THE "SEXUALLY VIOLENT PREDATOR ACT" AND TO ESTABLISH PROCEDURES FOR DETERMINING IF A PERSON IS A SEXUALLY VIOLENT PREDATOR; TO PROVIDE FOR THE RIGHTS OF THESE PERSONS IN THIS PROCESS; AND TO AUTHORIZE THE COMMITMENT OF THE PERSON TO THE DEPARTMENT OF MENTAL HEALTH UPON ANTICIPATION OF RELEASE FROM INCARCERATION AND UNTIL THE PERSON IS SAFE TO BE AT LARGE.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Title 17 of the 1976 Code is amended by adding:

"CHAPTER 30

Sexually Violent Predator Act

Section 17-30-10. This chapter may be cited as the 'Sexually Violent Predator Act'.

Section 17-30-20. For purposes of this chapter:

(1) 'Sexually violent predator' means a person who has been charged with, convicted of, pled guilty or nolo contendere to, or adjudicated delinquent for a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence, if not confined in a secure facility. A person includes a child under the age of seventeen.

(2) 'Sexually violent offense' means:

(a) criminal sexual conduct in the first, second, or third degree, as provided for in Sections 16-3-652, 16-3-653, and 16-3-654;

(b) criminal sexual conduct with minors, as provided for in Section 16-3-655;

(c) assault with intent to commit criminal sexual conduct, first, second, or third degree, as provided for in Section 16-3-656;

(d) engaging a child for a sexual performance, as provided for in Section 16-3-810;

(e) committing or attempting lewd act upon a child under sixteen, as provided for in Section 16-15-140,

(f) accessory before the fact to commit an offense enumerated in this item and as provided for in Section 16-1-40;

(g) attempt to commit an offense enumerated in this item, as provided for in Section 16-1-80.

(3) 'Mental abnormality' means a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.

(4) 'Predatory' means acts directed towards strangers or individuals with whom relationships have been established or promoted for the primary purpose of victimization.

(5) 'Sexually motivated' means that one of the purposes for which the defendant committed the crime was for the purpose of the defendant's sexual gratification.

Section 17-30-30. (A) When it appears that a person satisfies the definition of a sexually violent predator, the agency with jurisdiction over that person must give written notice of this fact to the Attorney General and the multidisciplinary team established in Section 17-30-40, at least ninety days before:

(1) the anticipated release from confinement by the Department of Corrections, the Department of Mental Health, the Department of Juvenile Justice, or any other secure facility, or the anticipated release from supervision by the Department of Probation, Parole, and Pardon Services of a person who has been convicted of, pled guilty or nolo contendere to, or been adjudicated delinquent for a sexually violent offense, except that in the case of a person who is incarcerated for no more than ninety days as a result of a revocation of post-release supervision, written notice must be given as soon as practicable following the person's incarceration;

(2) the anticipated release of a person who has been charged with a sexually violent offense and who has been determined to be incompetent to stand trial pursuant to Section 44-23-430 and subsequently, pursuant to Section 44-23-460;

(3) the release of a person, pursuant to Section 17-24-40(C), who has been charged with a sexually violent offense and who has been found not guilty by reason of insanity; or

(4) the release of a person who has been charged with a sexually violent offense and who has been found guilty but mentally ill pursuant to Section 17-24-20.

(B) The agency with jurisdiction over the person shall inform the Attorney General and the multidisciplinary team of:

(1) the person's name, identifying factors, anticipated future residence, criminal offense history; and

(2) documentation of institutional adjustment, treatment received, and any disciplinary records formulated during confinement or supervision.

Section 17-30-40. The Director of the Department of Corrections shall appoint a multidisciplinary team to review the records of each person referred to the team pursuant to Section 17-30-30(A). These records may include, but are not limited to, the person's criminal offense record, any relevant medical and psychological records, treatment records, and any disciplinary or other records formulated during confinement or supervision. The team, within thirty days of receiving notice as provided for in Section 17-30-30(A), shall assess whether or not the person satisfies the definition of a sexually violent predator. The team shall forward a report of its assessment, along with copies of all records relevant to the assessment, to the Attorney General. Membership of the team must include a representative from the Department of Corrections, the Department of Probation, Parole, and Pardon Services, and the Department of Mental Health. The Director of the Department of Corrections or his designee shall be the chairman of the team.

Section 17-30-50. The Attorney General shall appoint a prosecutor's review committee to review the report and records of each person referred to the Attorney General by the multidisciplinary team. The prosecutor's review committee shall assist the Attorney General in the determination of whether or not the person satisfies the definition of a sexually violent predator. The prosecutor's review committee shall include a member of the staff of the Attorney General, a circuit solicitor, a defense attorney, and a victim's representative. The Attorney General or his designee shall be the chairman of the committee.

Section 17-30-60. When the prosecutor's review committee has determined that a person satisfies the definition of a sexually violent predator, the Attorney General may file a petition with the circuit court in the jurisdiction where the person committed the offense, within thirty days, requesting that the court make a probable cause determination as to whether the person is a sexually violent predator. The petition must allege that the person is a sexually violent predator and must state sufficient facts to support the allegation.

Section 17-30-70. (A) Upon the filing of a petition pursuant to Section 17-30-60, the court shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If the court determines that the person is a sexually violent predator, the person must be taken into custody if he is not already confined in a secure facility.

(B) Within seventy-two hours after a judicial determination that a person is a sexually violent predator, the person must be provided with notice of, and an opportunity to appear at, a hearing to contest the judicial determination of probable cause that the person is a sexually violent predator. At this hearing the person has the following rights:

(1) to be represented by counsel;

(2) to present evidence on his behalf;

(3) to cross-examine witnesses who testify against him; and

(4) to view and copy all reports which were relied upon to make the allegations brought forth in the petition filed by the Attorney General.

(C) At the hearing the court must:

(1) verify the person's identity; and

(2) determine whether probable cause exists to believe that the person is a sexually violent predator.

The State may be represented at this hearing and may rely upon the petition filed by the Attorney General and supplement that petition with additional evidence, including testimony by any relevant party.

(D) At the conclusion of the contested hearing, if the court determines that probable cause exists to believe the person is a sexually violent predator, the court shall direct that the person be transferred to an appropriate secure facility including, but not limited to, a county jail or a state correctional facility, for an evaluation by an expert as to whether the person is a sexually violent predator. The evaluation must be conducted by a person who is an expert in the field of sexual disorders.

Section 17-30-80. (A) Within sixty days after the completion of the contested hearing held pursuant to Section 17-30-70(B), the court must conduct a trial to determine whether the person is a sexually violent predator. The trial may be continued upon the request of either party and a showing of good cause, or by the court on its own motion in the due administration of justice. The trial must not be continued if either party would be substantially prejudiced by a continuance. The trial must be conducted before a jury if either the person or the Attorney General request a jury trial. A request for a jury trial must be filed, in writing, at least four days before the trial. If no request is made, the trial shall be before the court. The court or jury must determine whether, beyond a reasonable doubt, the person is a sexually violent predator. If a jury trial is held, twelve jurors must make the determination by a unanimous verdict. The South Carolina Rules of Criminal Procedure shall apply at the trial. The determination made by the court or jury may be appealed.

(B) If the court or jury determines beyond a reasonable doubt that the person is a sexually violent predator, the person must be committed to the custody of the Department of Mental Health for control, care, and treatment until such time as the person's mental abnormality or personality disorder has so changed that it is unlikely the person would engage in predatory acts of sexual violence. The control, care, and treatment must be provided at a facility operated by the Department of Mental Health. A person committed to the Department of Mental Health pursuant to this section must be kept in a secure facility and must be segregated at all times from other patients under the supervision of the department. Beginning on July 1, 1998, a person committed pursuant to this section must be kept in a facility or building separate from any other patient under the supervision of the Department of Mental Health. The Department of Mental Health may enter into an interagency agreement with the Department of Corrections for the confinement of persons determined to be sexually violent predators. A person who is confined in a facility operated by the Department of Corrections pursuant to an interagency agreement must be housed separately from other offenders in the custody of the Department of Corrections and, except for occasional instances of supervised incidental contact, must be segregated from these offenders at all times. If the court or jury does not determine, beyond a reasonable doubt, that the person is a sexually violent predator, the court must direct the person's release from custody. If a mistrial occurs, the court must direct that the person remain in custody until another trial is held. After a mistrial, a subsequent trial must be held within ninety days, unless the subsequent trial is continued as provided for in Section 17-30-60(A).

Section 17-30-90. If a person charged with a sexually violent offense has been found incompetent to stand trial and is about to be released from custody, but the person's commitment is sought pursuant to Section 17-30-80(B), the court must first determine whether the person committed the offense or offenses with which he is charged. The hearing on this issue shall be a contested proceeding before a court of competent jurisdiction, and the South Carolina Rules of Criminal Procedure shall apply at the hearing. In addition, all constitutional rights available to a defendant at a criminal trial shall apply at the hearing, other than the right not to be tried while incompetent. At the hearing, the court shall make the following findings:

(1) Whether the person committed the offense or offenses charged;

(2) The extent to which the person's developmental disability affected the outcome of the hearing, including its effect on the person's ability to consult with and assist counsel and to testify on the person's own behalf;

(3) The extent to which the evidence could be reconstructed without the assistance of the person; and

(4) The strength of the prosecution's case.

If the court finds, beyond a reasonable doubt, that the person did commit the offense or offenses with which he is charged, the court shall enter a final order on that issue, appealable by the person, and may proceed to consider whether the person should be civilly committed as a sexually violent predator pursuant to the proceedings in this chapter.

Section 17-30-100. A person committed under this chapter must have an annual examination to determine his mental condition. The person may retain an independent examiner of his own choosing, or if the person is indigent and requests an independent examiner, the court may appoint a qualified professional to examine the person. The examiner shall have access to all records and reports including, but not limited to, medical, psychological, treatment, criminal offense and disciplinary records, and any other records formulated while the person was confined or under supervision. A report of the annual examination must be provided to the court which committed the person under this chapter. Relying on the annual report, the court shall review the status of the committed person.

Section 17-30-110. If the Director of the Department of Mental Health determines that the person's mental abnormality or personality disorder has so changed that it is unlikely the person would engage in predatory acts of sexual violence, the director shall authorize the person to petition the court which committed him, at any time, for release from custody. The petition shall be served on the court which committed the person and on the Attorney General. The court, upon receipt of the petition for release, must order a hearing within thirty days. The committed person has the right to have an attorney represent him at the hearing. The committed person is entitled to be present at the hearing, is entitled to the benefit of all constitutional protections that were afforded him at the initial commitment proceeding, and the South Carolina Rules of Criminal Procedure shall apply. The Attorney General shall represent the State. The hearing must be before a jury if requested by either the petitioner or the Attorney General. A request for the hearing to be before a jury must be filed, in writing, at least four days before the hearing. If no request is made, the hearing shall be before the court. If the hearing is before a jury, twelve jurors shall make the determination as to whether the person remains a sexually violent predator and that determination shall be by a unanimous verdict. The person and the Attorney General each has the right to have the person evaluated by experts of their own choosing. The court shall appoint an expert if the person is indigent and requests an expert of his choosing. The burden of proof at the hearing is on the State to prove beyond a reasonable doubt that the person's mental abnormality or personality disorder remains such that the person is likely to engage in predatory acts of sexual violence if not confined in a secure facility. If there is not proof beyond a reasonable doubt that the person's mental abnormality or personality disorder remains such that the person is likely to engage in predatory acts of sexual violence, the person must be released from custody.

Section 17-30-120. The Director of the Department of Mental Health shall provide the committed person with an annual written notice of the person's right to petition the court for release over the director's objection. The notice shall contain a waiver of rights. The director shall forward the notice and waiver form to the court along with the annual report provided for in Section 17-30-100. If the committed person chooses to petition the court for release, he must serve a petition on the court which committed him and he must also serve the Attorney General. The court, upon receipt of the petition for release, shall order a hearing within thirty days. The committed person has the right to have an attorney represent him at the hearing. The committed person is entitled to be present at the hearing, is entitled to the benefit of all constitutional protections that were afforded him at the initial commitment proceeding, and the South Carolina Rules of Criminal Procedure shall apply. The Attorney General shall represent the State. The hearing must be before a jury if requested by either the petitioner or the Attorney General. A request for the hearing to be before a jury must be filed, in writing, at least four days before the hearing. If no request is made, the hearing shall be before the court. If the hearing is before a jury, twelve jurors shall make the determination as to whether the person remains a sexually violent predator and that determination must be by a unanimous verdict. The person and the Attorney General each have the right to have the person evaluated by experts of their own choosing. The court shall appoint an expert if the person is indigent and requests an expert of his choosing. The burden of proof at the hearing is on the State to prove beyond a reasonable doubt that the person's mental abnormality or personality disorder remains such that the person is likely to engage in predatory acts of sexual violence if not confined in a secure facility. If there is not proof beyond a reasonable doubt that the person's mental abnormality or personality disorder remains such that the person is likely to engage in predatory acts of sexual violence if not confined in a secure facility, then the person must be released from custody.

Section 17-30-130. A person is entitled to the assistance of counsel at all court proceedings provided for in this chapter. If the person is indigent, the court must appoint counsel to assist him. If a person is subjected to an examination under this chapter, he may retain experts of his own choosing to perform the examination. All examiners are permitted to have reasonable access to the person for purposes of the examination, as well as access to all relevant medical, psychological, criminal offense, and disciplinary records and reports. In the case of a person who is indigent but who would like an expert of their own choosing, the court shall determine whether the services are necessary. If the court determines that the services are necessary and the expert's requested compensation is reasonable, the court must assist the person in obtaining an expert and shall approve payment for the services. Payment shall be approved after the filing of a certified claim for compensation supported by a written statement specifying the time expended, services rendered, expenses incurred, and any compensation received in this case or for the same services from any other source.

Section 17-30-140. Relevant information and records which are confidential or privileged must be released to the agency with jurisdiction over the person and to the Attorney General if the information is relevant in determining whether a person is or continues to be a sexually violent predator.

Section 17-30-150. Psychological reports, drug and alcohol reports, treatment records, medical records, criminal offense records, disciplinary records and victim impact statements which have been submitted to the court or admitted into evidence pursuant to this chapter must be made part of the record and then sealed. These records may only be opened by an order of the court.

Section 17-30-160. The agency with jurisdiction over the person, its employees, officials, members of the multidisciplinary team, members of the prosecutor's review committee, and individuals who are contracted, appointed, or who volunteer to perform services provided for in this chapter, who act in good faith are immune from civil and criminal liability which might otherwise result by reason of their actions under this chapter. In all such civil and criminal proceedings good faith is rebuttably presumed.

Section 17-30-170. A person released pursuant to this chapter who must register as a sex offender pursuant to Article 7, Chapter 3, Title 23 must comply with Article 7, Chapter 3, Title 23."

SECTION 2. Section 16-3-1560, as last amended by Act No. 141 of 1997, is further amended to read:

"Section 16-3-1560. (A) The Department of Corrections, the Department of Probation, Parole, and Pardon Services, the Board of Juvenile Parole, or the Department of Juvenile Justice, as appropriate, reasonably must attempt to notify each victim of post-conviction proceedings affecting the probation, parole, or release of the offender, including proceedings brought under Chapter 30 of Title 17, and of the victim's right to attend and comment at these proceedings. This notification must be made sufficiently in advance to allow the victim to exercise his rights as they pertain to post-conviction proceedings.

(B) The Attorney General, upon receiving notice of appeal or other post-conviction action by an offender convicted of or adjudicated guilty for committing an offense involving one or more victims, must request from the Department of Corrections, the Department of Probation, Parole, and Pardon Services, the Board of Juvenile Parole, or the Department of Juvenile Justice, as appropriate, the victim's personal information.

(C) The Department of Corrections, the Department of Probation, Parole, and Pardon Services, the Board of Juvenile Parole, or the Department of Juvenile Justice, upon receipt of request for the victim's personal information from the Attorney General in an appeal or post-conviction proceeding, must supply the requested information within a reasonable period of time.

(D) The Attorney General must confer with victims regarding the defendant's appeal and other post-conviction proceedings, including proceedings brought under Chapter 30 of Title 17.

(E) The Attorney General must keep each victim reasonably informed of the status and progress of the appeal or other post-conviction proceedings, including proceedings brought under Chapter 30 of Title 17, until their resolution.

(F) The Attorney General reasonably must attempt to notify a victim of all post-conviction proceedings, including proceedings brought under Chapter 30 of Title 17, and of the victim's right to attend. This notification must be made sufficiently in advance to allow the victim to exercise his rights pertaining to post-conviction proceedings."

SECTION 3. If a provision of this act or the application of a provision of this act to a person or circumstance is held to be invalid, the invalidity does not affect other provisions or applications of this act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.

SECTION 4. This act takes effect upon approval by the Governor and is to be applied prospectively and retroactively to all person who have charges pending or who are currently incarcerated or otherwise confined in a secure facility for an offense provided for in Section 17-30-20(2).

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