Bill 2064

                    Current Status

Bill Number:               2064
Ratification Number:       458
Act Number:                396
Introducing Body:          House
Subject:                   To define the meaning and requirements of
                           a verdict of "guilty but mentally ill"

(A396, R458, H2064)

AN ACT TO PROVIDE IN CRIMINAL CASES FOR THE VERDICT OF "GUILTY BUT MENTALLY ILL", TO DEFINE THE MEANING AND REQUIREMENTS OF SUCH VERDICT, TO ESTABLISH CERTAIN PROCEDURES TO BE FOLLOWED BY THE COURT IN REGARD THERETO, AND TO PROVIDE FOR A STATUTORY VERDICT OF NOT GUILTY BY REASON OF INSANITY AND CERTAIN PROCEDURES TO BE FOLLOWED BY THE COURT IN REGARD THERETO.

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

Affirmative defense

SECTION 1. (A) It shall be 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 and 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.

Guilty but mentally ill

SECTION 2. (A) A defendant is guilty but mentally ill if, at the time of the commission of the act constituting the offense, he had the capacity to distinguish right from wrong and to recognize his act as being wrong as defined in Section 1(A), but because of mental disease or defect he lacked sufficient capacity to conform his conduct to the requirements of the law.

(B) To return a verdict of "guilty but mentally ill" the burden of proof shall be upon the State to prove beyond a reasonable doubt

to the trier of fact that the defendant committed the crime and the burden of proof shall be upon the defendant to prove by a preponderance of the evidence that when he committed the crime he was mentally ill as defined in Section 2(A).

(C) The verdict of guilty but mentally ill may be rendered only during the phase of a trial which determines guilt or innocence and is not a form of verdict which may be rendered in the penalty phase of the trial if a trial has a penalty phase.

Trier of fact to find

SECTION 3. In a prosecution for a crime when the affirmative defense of insanity is sufficiently raised 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 shall so state, whether the defendant is :

(1) Guilty;

(2) Not guilty;

(3) Not guilty by reason of insanity; or

(4) Guilty but mentally ill.

Defendant must be committed

SECTION 4. (A) In the event a verdict of "not guilty by reason of insanity" is returned, the trial judge shall order the defendant committed to the South Carolina State Hospital for a period not to exceed one hundred twenty days. During that time an examination shall be made of the defendant to determine the need for hospitalization of the defendant pursuant to the standards set forth in Section 44-17-580 of the 1976 Code.

(B) A report of the findings shall be made to the chief administrative judge of the circuit in which the trial was held, the solicitor, the defendant, and the defendant's attorney.

(C) (1) Within fifteen days after receipt of this report by the court, the chief administrative judge of the circuit in which the trial was held shall hold a hearing to decide whether the defendant should be hospitalized pursuant to the standard of Section 44-17-580 of the 1976 Code.

(2) (a) If the chief administrative judge finds the defendant not to be in need of hospitalization, he may order the defendant released upon such terms or conditions, if any, as he shall deem appropriate for the safety of the community and the well-being of the defendant.

(b) In the event the chief administrative judge finds the defendant to be in need of hospitalization, he shall order him committed to the South Carolina State Hospital.

(c) If at a later date it is determined by officials at the State Hospital that the defendant is no longer in need of hospitalization, they shall 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, shall hold a hearing to determine whether the defendant is in need of continued hospitalization pursuant to the standard of Section 44-17-580 of the 1976 Code. If the finding of the court is that the defendant is in need of continued hospitalization, it shall order his continued confinement. If its 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 shall deem appropriate for the safety of the community and the well-being of the defendant.

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

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

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

(3) report periodically to the probation office for an evaluation of his reaction to his environment and his general welfare.

(E) The chief administrative judge of the circuit in which the trial was held shall at all times have jurisdiction over the defendant for the purposes of this act.

Length of confinement or being under supervision

SECTION 5. In no case shall a defendant found not guilty by reason of insanity be confined or be under supervision longer than the maximum sentence for the crime with which he was charged without full civil commitment proceedings being held.

Defendant's attorney may petition

SECTION 6. Two years from the date of commitment the defendant's attorney may petition the chief administrative judge to be relieved as counsel.

Sentencing

SECTION 7. In the event a verdict is returned or a plea is accepted of "guilty but mentally ill" the defendant shall be sentenced by the trial judge as provided by law for a defendant found guilty, however:

(A) If the sentence imposed upon the defendant includes the incarceration of the defendant, the defendant shall first be taken to a facility designated by the Department of Corrections for treatment and retained there until in the opinion of the staff at that facility the defendant may safely be moved to the general population of the Department of Corrections to serve the remainder of his sentence;

(B) If the sentence includes a probationary sentence, the judge shall have authority to impose such conditions and restrictions upon the release of the defendant as the judge shall deem necessary for the safety of the defendant and of the community.

Release of defendant

SECTION 8. (A) Should a defendant be released pursuant to Section 4(C)(2)(a), Section 4(C)(2)(c), or Section 7(B) herein, the solicitor shall immediately notify the local probation office and it shall then be the responsibility of the probation office to monitor compliance by the defendant of the terms and conditions of his release.

(B) The probation office shall file reports quarterly or more often, if necessary, of the defendant's compliance with the terms of his release with the circuit solicitor, the chief administrative judge of the circuit, the defendant's attorney, and the defendant.

(C) In the event the defendant violates any of the terms of his release, notice of the violation shall be immediately given by the probation office to the chief administrative judge of the circuit, the circuit solicitor, the defendant's attorney, and the defendant. Upon the receipt of the notice the chief administrative judge, upon notice to all parties, may order a hearing and order in-patient treatment if he finds the defendant in need of hospitalization pursuant to the standard of Section 44-17-580 of the 1976 Code, or order such other action as he may deem appropriate.

Act not to abbrogate common law

SECTION 9. This act shall abrogate the common law in its entirety as it relates to insanity as a defense to the commission of a crime or of an element thereof.

Time effective

SECTION 10. This act shall take effect upon approval by the Governor.