A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY ADDING SECTION 44-23-470 SO AS TO CREATE ADDITIONAL JUDICIAL PROCEDURES FOR CERTAIN DEFENDANTS WHOSE FITNESS TO STAND TRIAL IS IN ISSUE; AND BY AMENDING SECTION 44-23-430, RELATING TO FITNESS TO STAND TRIAL HEARINGS, SO AS TO MAKE CONFORMING CHANGES.

 

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

 

SECTION 1.  Article 5, Chapter 23, Title 44 of the S.C. Code is amended by adding:

 

    Section 44-23-470. (A) Upon a finding that a defendant who is charged with an offense under Section 16-1-60 is incompetent to stand trial pursuant to Section 44-23-430(A)(2) or (3), on the motion of the solicitor or on its own motion, the court may retain jurisdiction over the defendant, if at a hearing held within thirty days of the motion, the court finds by clear and convincing evidence that:

       (1) the defendant is:

           (a) a person with a mental illness, as the term is defined in Section 44-23-10, subject to court order under Section 44-17-580(A);

           (b) a person with an intellectual disability or a person with a related disability, as those terms are defined in Section 44-20-30, subject to court order under Section 44-20-450; or

           (c) a person with a neurocognitive disorder as defined in the most current publication of the American Psychiatric Association entitled "The Diagnostic and Statistical Manual of Mental Disorders" found to be in need of placement in a facility or service program of the Department of Behavioral Health and Developmental Disabilities;

       (2) the defendant committed an offense listed in Section 16-1-60; and

       (3) the acts constituting the offense or offenses charged and any history of the defendant indicate a likelihood of serious harm to himself or others.

    (B)(1) In making a determination under subsection (A) as to whether to retain jurisdiction over the defendant, the court:

           (a) shall appoint counsel to represent the defendant if counsel has not been retained;

           (b) may admit hearsay or affidavit evidence on secondary matters such as testimony to establish the chain of custody of physical evidence, laboratory reports, authentication of transcripts taken by official reporters, court and business records, and public documents;

           (c) shall consider all relevant evidence including, but not limited to, any relevant psychiatric, psychological, or medical testimony or reports, the acts constituting the offense or offenses charged, and any history of the defendant that is relevant to the defendant's ability to conform to the law; and

           (d) may appoint one or more examiners with licensure appropriate for the defendant's condition to examine the defendant and report to the court their findings as to the defendant's condition and need for treatment.

       (2)(a) Any examination of the defendant's condition undertaken pursuant to item (1)(d) must be made at a suitable place not likely to have a harmful effect upon the defendant's health.

           (b) On a report of a designated examiner of refusal to submit to examination, the court shall order the defendant to submit to examination. If the defendant refuses to obey the court's order the court may require a state or local law enforcement officer to take the defendant into custody for a period not exceeding twenty-four hours during which time the defendant must be examined by the designated examiner. The defendant's attorney must be notified before the defendant is taken into custody.

           (c) An adequate record of the examination must be made and offered to the defendant's counsel. The defendant and the solicitor must be given the opportunity to request an additional examination by an independent designated examiner. After receiving the reports of the designated examiners, the court may appoint additional examiners as it deems necessary.

    (C) If the court conducts a hearing pursuant to subsection (A) and if the court does not make the relevant findings by clear and convincing evidence, the court shall issue an order declining to retain jurisdiction over the defendant. If the court declines jurisdiction based on the provisions of subsection (A)(2) or (3), the solicitor responsible for the criminal prosecution of the defendant shall initiate judicial admission proceedings pursuant to Sections 44-17-510 through 44-17-610 or Section 44-20-450 within fourteen days, excluding Saturdays, Sundays, and holidays, of entry of the court's order declining jurisdiction.

    (D)(1)(a) If the court conducts a hearing pursuant to subsection (A) and retains jurisdiction, the court shall commit the defendant, if determined to be a person with a mental illness, to a state hospital under the jurisdiction of the Office of Mental Health for a period not to exceed one hundred twenty days. During that time, an examination must be made of the defendant to determine the need for hospitalization of the defendant pursuant to the standards in Section 44-17-580.

           (b) A report of the findings of the examination undertaken pursuant to subitem (a) must be made to the chief administrative judge of the circuit in which the hearing was held, the solicitor, the defendant, and the defendant's attorney.

           (c) Within fifteen days after receipt of this report by the court, the chief administrative judge of the circuit in which the hearing was held must hold a hearing to decide whether the defendant should be hospitalized pursuant to the standards of Section 44-17-580. If the chief administrative judge finds the defendant not to be in need of hospitalization, the judge may order the defendant released upon such terms and conditions, if any, as the judge considers appropriate for the safety of the community and the well-being of the defendant. If the chief administrative judge finds the defendant is in need of hospitalization, the judge must order the defendant committed to a state hospital under the jurisdiction of the Office of Mental Health.

           (d) If officials of a state hospital under the jurisdiction of the Office of Mental Health later determine that a defendant committed for services is no longer in need of hospitalization, the officials must notify the chief administrative judge, the solicitor, the defendant, and the defendant's attorney. Within twenty-one days after the receipt of this notice, the chief administrative judge, upon notice to all parties, must hold a hearing to determine whether the defendant is in need of continued hospitalization pursuant to the standards of Section 44-17-580. If the finding of the court is that the defendant is in need of continued hospitalization, the court must order his continued confinement. If the court's finding is that the defendant is not in need of continued hospitalization, it may order the defendant released upon such terms and conditions, if any, as the chief administrative judge considers appropriate for the safety of the community and the well-being of the defendant.

           (e) In determining the necessity and terms of the defendant's release, the court shall consider the extent to which the defendant is a danger to himself and to others, the need for security, and the type of crime involved and shall order the least restrictive alternative that is consistent with public safety and the welfare of the defendant. In weighing these factors, the court shall give preference to protecting public safety.

           (f) Any terms and conditions imposed by the chief administrative judge must be therapeutic in nature, not punitive. Therapeutic terms must include, but not be limited to, requirements that the defendant must:

               (i) continue taking medication for an indefinite time and verify in writing the use of medication;

               (ii) receive periodic examinations and reviews by psychiatric personnel; and

               (iii) report periodically to the probation office for an evaluation of the defendant's reaction to his environment and the defendant's general welfare.

       (2)(a) If the court conducts a hearing pursuant to subsection (A) and retains jurisdiction, the court shall commit the defendant, if determined to be a person with an intellectual disability, related disability, or neurocognitive disorder, to a facility or service program operated by the Department of Behavioral Health and Developmental Disabilities, or another facility, as appropriate.

           (b) In determining the place of commitment, the court shall consider the extent to which the defendant is a danger to himself and to others, the need for security, and the type of crime involved and shall order the least restrictive alternative that is consistent with public safety and the welfare of the defendant. In weighing these factors, the court shall give preference to protecting public safety.

            (c) If the Department of Behavioral Health and Developmental Disabilities determines that a defendant admitted for services is no longer in need of placement in a facility or in need of services, the officials must notify the chief administrative judge, the solicitor, the defendant, and the defendant's attorney. Within twenty-one days after receipt of this notice, the chief administrative judge, upon notice to all parties, must hold a hearing to determine whether the defendant is in need of continued placement or treatment. If the finding of the court is that the defendant is no longer in need of the services of the department, the court shall discharge the defendant.

    (E) Regardless of the court's determination pursuant to subsection (A), proceedings under this section are not a bar to further criminal proceedings based on the same conduct.

    (F) The chief administrative judge of the circuit in which the hearing was held pursuant to subsection (A) has jurisdiction at all times over the defendant for the purposes of this section. Court administration shall administratively close all pending warrants for a defendant under the jurisdiction of the circuit court under this section and the charges shall be held in abeyance during the pendency of proceedings under this section.

    (G) For any defendant committed pursuant to this section, the treating professionals at the institution, facility, or program providing for the defendant's care shall make a report at least once annually to the chief administrative judge of the circuit in which jurisdiction was retained addressing the defendant's condition and continued need for treatment or supervision to protect the safety of the community or the well-being of the defendant.

    (H) The solicitor, the defendant, the defendant's counsel, or the defendant's legal guardian may petition for reexamination of the defendant's fitness to stand trial pursuant to Section 44-23-450.

    (I) In no case shall the retention of jurisdiction pursuant to this section exceed the maximum sentence for the crime which the defendant was found to have committed pursuant to subsection (A)(2), though additional commitment proceedings may be held pursuant to Sections 44-17-510 through 44-17-610 or Section 44-20-450 after the court's jurisdiction under this section concludes.

 

SECTION 2.  Section 44-23-430(A)(2) and (3) of the S.C. Code is amended to read:

 

    (2) the person is unfit to stand trial for the reasons set forth in Section 44-23-410 and is unlikely to become fit to stand trial in the foreseeable future, the solicitor responsible for the criminal prosecution shall initiate judicial admission proceedings pursuant to Sections 44-17-510 through 44-17-610 or Section 44-20-450, or Section 44-23-470 within fourteen days, excluding Saturdays, Sundays, and holidays, during which time the court may order the person hospitalized, may order the person to continue in detention if detained, or, if on bond, may permit the person to remain on bond;  or

       (3) the person is unfit to stand trial but likely to become fit in the foreseeable future, the court shall order him to undergo restoration treatment by the Office of Mental Health for up to one hundred eighty days from the commencement of restoration treatment.  If the person is in detention, the Office of Mental Health has the discretion to provide the restoration treatment in a hospital or detention facility.  Restoration treatment shall only occur in a detention facility with the consent and approval of the sheriff or local government, whichever has lawful custody of the detention facility.  If the person is on bond, the Office of Mental Health has the discretion to provide the restoration treatment in a hospital or on an outpatient basis.  If the person is found to be unfit at the conclusion of the period of restoration treatment, the solicitor responsible for the criminal prosecution shall initiate judicial admission proceedings pursuant to Sections 44-17-510 through 44-17-610 or, Section 44-20-450, or Section 44-23-470 within fourteen days, excluding Saturdays, Sundays, and holidays.

 

SECTION 3.  This act takes effect upon approval by the Governor.

----XX----