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Current Status Bill Number:View additional legislative information at the LPITS web site.3180 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19990112 Primary Sponsor:Klauber All Sponsors:Klauber, Fleming, Hawkins Drafted Document Number:l:\council\bills\pt\1142som99.doc Companion Bill Number:284 Residing Body:House Current Committee:Judiciary Committee 25 HJ Subject:Sexually violent predators, notification of release; Crimes and Offenses, Sex, Mental Health, Minors, Juveniles History Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ House 19990112 Introduced, read first time, 25 HJ referred to Committee House 19990106 Prefiled, referred to Committee 25 HJ Versions of This Bill
TO AMEND SECTION 44-48-40, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO SEXUALLY VIOLENT PREDATORS, SO AS TO PROVIDE THAT THE AGENCY WITH JURISDICTION SHALL GIVE WRITTEN NOTICE TO THE MULTIDISCIPLINARY TEAM AND THE ATTORNEY GENERAL'S OFFICE AT LEAST ONE HUNDRED AND EIGHTY DAYS PRIOR TO THE PERSON'S ANTICIPATED RELEASE DATE, TO FURTHER PROVIDE THAT FOR A PERSON UNDER THE JURISDICTION OF THE DEPARTMENT OF JUVENILE JUSTICE WHO IS INDEFINITELY TRANSFERRED TO THE DEPARTMENT OF MENTAL HEALTH FOR THE TREATMENT OF A SERIOUS EMOTIONAL DISTURBANCE, NOTICE SHALL BE PROVIDED AT LEAST ONE HUNDRED EIGHTY DAYS BEFORE THE JUVENILE'S ANTICIPATED RELEASE DATE, AND TO PROVIDE THAT REQUIREMENTS OF CERTAIN PROVISIONS ARE NOT JURISDICTIONAL AND FAILURE TO COMPLY WITH THEM DOES NOT PROHIBIT THE ATTORNEY GENERAL FROM PROCEEDING AGAINST A PERSON WHO MAY BE SUBJECT TO CHAPTER 48; TO AMEND SECTION 44-48-50, SO AS TO PROVIDE THAT CERTAIN RECORDS MUST BE GIVEN TO THE MULTIDISCIPLINARY TEAM WHEN THE AGENCY WITH JURISDICTION GIVES NOTICE AND TO PROVIDE THAT REQUIREMENTS OF CERTAIN PROVISIONS ARE NOT JURISDICTIONAL AND FAILURE TO COMPLY WITH THEM DOES NOT PROHIBIT THE ATTORNEY GENERAL FROM PROCEEDING AGAINST A PERSON WHO MAY BE SUBJECT TO CHAPTER 48; TO AMEND SECTION 44-48-60, SO AS TO PROVIDE THAT REQUIREMENTS OF CERTAIN PROVISIONS ARE NOT JURISDICTIONAL AND FAILURE TO COMPLY WITH THEM DOES NOT PROHIBIT THE ATTORNEY GENERAL FROM PROCEEDING AGAINST A PERSON WHO MAY BE SUBJECT TO CHAPTER 48; TO AMEND SECTION 44-48-70, SO AS TO PROVIDE THAT THE STATE OF SOUTH CAROLINA OR A PERSON ACTING ON BEHALF OF THE STATE DOES NOT HAVE TO PAY FILING FEES FOR PROCEEDINGS BROUGHT UNDER CHAPTER 48, AND TO PROVIDE THAT REQUIREMENTS OF CERTAIN PROVISIONS ARE NOT JURISDICTIONAL AND FAILURE TO COMPLY WITH THEM DOES NOT PROHIBIT THE ATTORNEY GENERAL FROM PROCEEDING AGAINST A PERSON WHO MAY BE SUBJECT TO CHAPTER 48; TO AMEND SECTION 44-48-80, SO AS TO PROVIDE THAT THE STATE MAY USE HEARSAY EVIDENCE IN THE PROBABLE CAUSE HEARING; TO AMEND SECTION 44-48-90, SO AS TO PROVIDE THAT THE VOLUNTARY EXCHANGE OF INFORMATION BETWEEN PARTIES IS ENCOURAGED BUT FORMAL DEPOSITIONS AND DISCOVERY MAY BE CONDUCTED; AND TO ADD SECTION 44-48-180 SO AS TO PROVIDE THAT A SEXUALLY VIOLENT PREDATOR WHO IS SUBSEQUENTLY CONVICTED OF A CRIMINAL OFFENSE AND SENTENCED TO INCARCERATION, UPON SERVING SUCH SENTENCE, SHALL BE RETURNED TO THE APPROPRIATE FACILITY FOR THE TREATMENT OF SEXUALLY VIOLENT PREDATORS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 44-48-40 of the 1976 Code is amended to read:
"Section 44-48-40. (A) When a person has been convicted of a sexually violent offense, the agency with jurisdiction shall give written notice to the multidisciplinary team established in Section 44-48-50 and the Attorney General at least ninety days one hundred eighty days before:
(1) the anticipated release from total confinement of a person who has been convicted of a sexually violent offense, except that in the case of a person who is returned to prison for no more than ninety days as a result of a revocation of any type of community supervision program, written notice must be given as soon as practicable following the person's readmission to prison;, and except that in the case of a person committed to the Department of Juvenile Justice who is indefinitely transferred to the Department of Mental Health for the treatment of a serious emotional disturbance or developmental disability and who remains committed to the Department of Juvenile Justice and remains under the jurisdiction of the Board of Juvenile Parole, written notice shall be given in accordance with subsection (B), when the Board of Juvenile Parole intends to grant the person a conditional release;
(2) the anticipated hearing on fitness to stand trial following notice under Section 44-23-460 of a person who has been charged with a sexually violent offense but who was found unfit to stand trial for the reasons set forth in Section 44-23-410 following a hearing held pursuant to Section 44-23-430;
(3) the anticipated hearing pursuant to Section 17-24-40(C) of a person who has been found not guilty by reason of insanity of a sexually violent offense; or
(4) release of a person who has been found guilty of a sexually violent offense but mentally ill pursuant to Section 17-24-20.
(B) When a person has been convicted of a sexually violent offense and the Board of Probation, Parole, and Pardon Services or the Board of Juvenile Parole intends to grant the person a parole or the South Carolina Department of Corrections or the Board of Juvenile Parole intends to grant the person a conditional release, the parole or the conditional release shall be granted to be effective ninety days after the date of the order of parole or conditional release. The Board of Probation, Parole, and Pardon Services, the Juvenile Parole Board, or the South Carolina Department of Corrections shall immediately shall send notice of the parole or conditional release of the person to the multidisciplinary team and the Attorney General. If the person is determined to be a sexually violent predator pursuant to this chapter, the person shall be subject to the provisions of this chapter even though the person has been released on parole or conditional release.
(C) The agency with jurisdiction shall inform the multidisciplinary team and the Attorney General of:
(1) the person's name, identifying factors, anticipated future residence, and offense history; and
(2) documentation of institutional adjustment and any treatment received.
(D) The provisions of this section are not jurisdictional. Failure to comply with them does not prevent the Attorney General from proceeding against a person otherwise subject to this chapter.
(D)(E) The agency with jurisdiction, its employees, officials, individuals contracting, appointed, or volunteering to perform services under this chapter, the multidisciplinary team, and the prosecutor's review committee established in Section 44-48-60 are immune from civil or criminal liability for any good-faith good faith conduct under this act chapter."
SECTION 2. Section 44-48-50 of the 1976 Code is amended to read:
"Section 44-48-50. (A) 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 44-48-40. A person's records must be provided to the multidisciplinary team when the agency with jurisdiction gives notice to the team and to the Attorney General as provided for in Section 44-48-40. These records must include the person's criminal history including records of convictions and sentencing, victim impact statements, medical records, psychiatric or psychological reports, evaluations, treatment records, discipline records, and any other relevant information. These records shall be used to assist the multidisciplinary team in making their assessment. 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 44-48-40, shall assess whether or not the person satisfies the definition of a sexually violent predator. If it is determined that the person satisfies the definition of a sexually violent predator, the multidisciplinary team must forward a report of the assessment and all records provided to the team by the agency with jurisdiction to the prosecutor's review committee. The assessment must be accompanied by all records relevant to the assessment. Membership of the team shall be composed of:
(1) a representative from the Department of Corrections;
(2) a representative from the Department of Probation, Parole, and Pardon Services;
(3) a representative from the Department of Mental Health who is a trained, qualified mental health clinician with expertise in treating sexually violent offenders;
(4) a retired judge appointed by the Chief Justice who is eligible for continued judicial service pursuant to Section 2-19-100; and
(5) the Chief Attorney of the Office of Appellate Defense or his designee.
The Director of the Department of Corrections or his designee shall be the chairman of the team.
(B) The provisions of this section are not jurisdictional. Failure to comply with them does not prevent the Attorney General from proceeding against a person otherwise subject to this chapter."
SECTION 3. Section 44-48-60 of the 1976 Code is amended to read:
"Section 44-48-60. (A) The Attorney General shall appoint a prosecutor's review committee to review the report and records of each person referred to the committee by the multidisciplinary team. The prosecutor's review committee shall determine whether or not probable cause exists to believe the person is a sexually violent predator. The prosecutor's review committee shall make the probable cause determination within thirty days of receiving the report and records from the multidisciplinary team. The prosecutor's review committee shall include, but not be limited to, a member of the staff of the Attorney General, an elected circuit solicitor, and a victim's representative. The Attorney General or his designee shall be the chairman of the committee. In addition to the records and reports considered pursuant to Section 44-48-50, the committee shall also consider information provided by the circuit solicitor who prosecuted the person.
(B) The provisions of this section are not jurisdictional. Failure to comply with them does not prevent the Attorney General from proceeding against a person otherwise subject to this chapter."
SECTION 4. Section 44-48-70 of the 1976 Code is amended to read:
"Section 44-48-70. (A) When the prosecutor's review committee has determined that probable cause exists to support the allegation that the person is a sexually violent predator, the Attorney General may file a petition with the court in the jurisdiction where the person committed the offense. The petition, which must be filed within thirty forty-five days of the probable cause determination by the prosecutor's review committee, shall request 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 that would support a probable cause allegation. The State of South Carolina, or a person or entity acting on behalf of the State of South Carolina, is not required to pay filing fees in proceedings brought under Chapter 48 of Title 44.
(B) The provisions of this section are not jurisdictional. Failure to comply with them does not prevent the Attorney General from proceeding against a person otherwise subject to this chapter."
SECTION 5. Section 44-48-80 of the 1976 Code is amended to read:
"Section 44-48-80. (A) Upon filing of a petition, 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 probable cause exists to believe 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) Immediately upon being taken into custody pursuant to subsection (A), the person must be provided with notice of the opportunity to appear in person at a hearing to contest probable cause as to whether the detained person is a sexually violent predator. This hearing must be held within seventy-two hours after a person is taken into custody pursuant to subsection (A). If the person is already confined in a secure facility, the hearing must be held within seventy-two hours of the person's release date. At this hearing the court shall:
(1) verify the detainee's identity;
(2) receive evidence and hear argument from the person and the Attorney General; and
(3) determine whether probable cause exists to believe that the person is a sexually violent predator.
The State may rely upon the petition and supplement the petition with additional documentary evidence or live testimony. In making its showing of probable cause, the State may use hearsay evidence.
(C) At the probable cause hearing as provided in subsection (B), the detained person has the following rights in addition to any rights previously specified:
(1) to be represented by counsel;
(2) to present evidence on the person's behalf;
(3) to cross-examine witnesses who testify against the person; and
(4) to view and copy all petitions and reports in the court file.
(D) If the probable cause determination is made, the court shall direct that the person be transferred to an appropriate secure facility including, but not limited to, a local or regional detention facility for an evaluation as to whether the person is a sexually violent predator. The evaluation must be conducted by a qualified expert approved by the court at the probable cause hearing. The person shall not be released from confinement prior to the conclusion of trial."
SECTION 6. Section 44-48-90 of the 1976 Code is amended to read:
"Section 44-48-90. Within sixty days after the completion of a hearing held pursuant to Section 44-48-80, the court shall conduct a trial to determine whether the person is a sexually violent predator. Within thirty days after the determination of probable cause by the court pursuant to Section 44-48-80, the person or the Attorney General may request, in writing, that the trial be before a jury. If such a request is made, the court shall schedule a trial before a jury at the next available date in the court of common pleas in the county where the offense was committed. If no request is made, the trial must be before a judge in the county where the offense was committed. 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, and only if the respondent will not be substantially prejudiced. Prior to trial, the parties should exchange information and documents promptly and willingly. However, formal depositions or discovery may be conducted by stipulation of the parties or by court order if a written application is presented to the court. The court order may prescribe the manner, time, conditions, and restrictions of the deposition or discovery. At all stages of the proceedings under this chapter, a person subject to this chapter is entitled to the assistance of counsel, and if the person is indigent, the court shall appoint counsel to assist the person. If a person is subjected to an examination under this chapter, the person may retain a qualified expert of his own choosing to perform the examination. All examiners are permitted to have reasonable access to the person for the purpose of the examination, as well as access to all relevant medical, psychological, criminal offense, and disciplinary records and reports. In the case of an indigent person who would like an expert of his 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 for the services is reasonable, the court shall assist the person in obtaining the expert to perform an examination or participate in the trial on the person's behalf. The court shall approve payment for the services upon the filing of a certified claim for compensation supported by a written statement specifying the time expended, services rendered, expenses incurred on behalf of the person, and compensation received in the case or for the same services from any other source."
SECTION 7. The 1976 Code is amended by adding:
"Section 44-48-180. A person determined to be a sexually violent predator pursuant to Chapter 48 of Title 44 who is subsequently convicted of an offense which results in incarceration, upon serving such sentence, shall be returned to the appropriate facility for the treatment of sexually violent predators without additional proceedings being brought pursuant to this chapter."
SECTION 8. This act takes effect upon approval by the Governor.
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