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Current Status Bill Number:View additional legislative information at the LPITS web site.284 Type of Legislation:General Bill GB Introducing Body:Senate Introduced Date:19990112 Primary Sponsor:Holland All Sponsors:Holland, McConnell, Fair, Giese Drafted Document Number:l:\s-jud\bills\holland\jud0008.dhh.doc Companion Bill Number:3180 Residing Body:House Current Committee:Judiciary Committee 25 HJ Date of Last Amendment:19990428 Subject:Sexually violent predators, notification of release; Crimes and Offenses, Sex, Mental Health, Minors, Juveniles History Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ House 19990504 Introduced, read first time, 25 HJ referred to Committee Senate 19990428 Amended, read third time, sent to House Senate 19990427 Read second time, ordered to third reading with notice of general amendments Senate 19990427 Committee amendment amended and adopted Senate 19990421 Co-Sponsor added by Senator Giese Senate 19990421 Committee report: Favorable with 11 SJ amendment Senate 19990114 Committed to Committee 11 SJ Senate 19990114 Recalled from Committee 13 SMA Senate 19990112 Introduced, read first time, 13 SMA referred to Committee Senate 19981216 Prefiled, referred to Committee 13 SMA Versions of This Bill Revised on April 21, 1999 - Word format Revised on April 27, 1999 - Word format Revised on April 28, 1999 - Word format
Indicates Matter Stricken
Indicates New Matter
AS PASSED BY THE SENATE
April 28, 1999
S. 284
S. Printed 4/28/99--S.
Read the first time January 12, 1999.
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 EIGHTY DAYS PRIOR TO THE PERSON'S ANTICIPATED RELEASE DATE; TO FURTHER PROVIDE THAT FOR A PERSON UNDER THE JURISIDICTION OF THE DEPARMENT 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; TO FURTHER PROVIDE THAT THE PROVISIONS OF THE ACT ARE NOT JURISDICTIONAL AND FAILURE TO COMPLY WITH THE PROVISIONS DOES NOT PROHIBIT THE ATTORNEY GENERAL FROM PROCEEDING AGAINST A PERSON WHO MAY BE SUBJECT TO THE ACT; 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; 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 THIS ACT; 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; TO ADD SECTION 44-48-180 SO AS TO PROVIDE THAT A SEXUALLY VIOLENT PREDATOR WHO IS SUBSEQUENTLY CONVICTED OF A CRIMINAL OFFENSE AND SENTENECED TO INCARCERATION SHALL, UPON SERVING SUCH SENTENCE, BE RETURNED TO THE APPROPRIATE FACILITY FOR THE TREATMENT OF SEXUALLY VIOLENT PREDATORS.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 44-48-30(6), (8), and (10) of the 1976 Code, as added by Act 321 of 1998, is further amended to read:
"(6) 'Convicted of a sexually violent offense' means a person has:
(a) pled guilty to, pled nolo contendere to, or been convicted of a sexually violent offense;
(b) been adjudicated delinquent as a result of the commission of;
(c) been charged but determined to be incompetent to stand trial for a sexually violent offense;
(d)(c) been found not guilty by reason of insanity of a sexually violent offense; or
(e)(d) been found guilty but mentally ill of a sexually violent offense.; or
(e) been adjudicated delinquent as a result of the commission of a sexually violent offense and a family court judge orders, at the time of sentencing or at any time prior to the person's release from the confinement, that the person be subject to proceedings under this act. A family court judge must make this determination for a person adjudicated delinquent of a sexually violent offense prior to the person's release from confinement.
(8) 'Total confinement' means incarceration in a secure state or local correctional facility and does not mean any type of community supervision. A secure correctional facility includes a staff secure residential facility or program operated by the State or a facility or program providing services pursuant to a contract with the State. Staff secure residential facilities and programs include those within the Department of Juvenile Justice and facilities and programs within agencies to which a juvenile may be transferred pursuant to Section 20-7-7815. The inclusion of staff secure residential facilities is applicable only when the Board of Juvenile Parole is the releasing authority of the juvenile.
(10) 'Person' means an individual who is a potential or actual subject of proceedings under this act. Person includes an individual who was under seventeen years of age at the time of the offense only when the individual was convicted of or pled guilty or nolo contendere to a sexually violent offense in the court of general sessions or the individual was adjudicated delinquent for a sexually violent offense and a family court judge ordered, at the time of sentencing or at any time prior to the individual's release from confinement, that the individual be subject to proceedings under this act."
SECTION 2. 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;
(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) The written notice to the Attorney General and the multidisciplinary team, provided for in subsection (A), is not required when the Department of Juvenile Justice transfers a juvenile pursuant to Section 20-7-7815 to the custody of another state agency to treat the juvenile for a mental illness or developmental disability, and the Board of Juvenile Parole is the releasing authority of the juvenile.
(C) 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 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.
(D) 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.
(E) The provisions of this section are not jurisdictional, and failure to comply with them does not prevent the Attorney General from proceeding against a person otherwise subject to the provisions of this act.
(F) The agency with jurisdiction, its employees, its 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 conduct under this act."
SECTION 3. 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 its 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 to review a person convicted of a sexually violent offense 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.
Membership of the team to review a person adjudicated delinquent for a sexually violent offense shall include, in addition to the members listed above, a representative from the Department of Juvenile Justice and a trained, qualified mental health clinician with expertise in treating sexually violent juvenile offenders.
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, and failure to comply with them does not prevent the Attorney General from proceeding against a person otherwise subject to the provisions of this act."
SECTION 4. 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, and failure to comply with them does not prevent the Attorney General from proceeding against a person otherwise subject to the provisions of this act."
SECTION 5. 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, and failure to comply with them does not prevent the Attorney General from proceeding against a person otherwise subject to the provisions of this act."
SECTION 6. 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 no later than seventy-two hours after 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 7. 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 8. The 1976 Code is amended by adding:
"Section 44-48-180. A person committed as a sexually violent predator pursuant to this chapter who has not yet been released pursuant to Sections 44-48-110, 44-48-120, or 44-48-130 and who is subsequently convicted of an offense which results in incarceration shall, upon serving such sentence, be returned to the appropriate facility for the treatment of sexually violent predators without additional proceedings being brought pursuant to this chapter."
SECTION 9. Section 20-7-7815 of the 1976 Code, as last amended by Act 135 of 1997, is further amended to read:
"Section 20-7-7815. (A) No juvenile may be committed to an institution under the control of the Department of Juvenile Justice who is seriously handicapped by mental illness or retardation. If, after a juvenile is referred to the Reception and Evaluation Center, it is determined that the juvenile is mentally ill, as defined in Section 44-23-10, or mentally retarded to an extent that the juvenile could not be properly cared for in its custody, the department through the voluntary admission process or by instituting necessary legal action may accomplish the transfer of the juvenile to another state agency which in its judgment is best qualified to care for the juvenile in accordance with the laws of this State. This legal action must be brought in the juvenile's resident county. The department shall establish standards with regard to the physical and mental health of juveniles whom it can accept for commitment.
(B) When the state agency to which a juvenile is transferred determines that it is appropriate to release from commitment that juvenile, the state agency must submit a request for release to the Juvenile Parole Board. If the Juvenile Parole Board does not grant the request to release the juvenile, the juvenile must be placed in an environment consistent with the provisions of this section.
(C) The director or his designee of a state agency to which a juvenile is transferred, pursuant to this section, is authorized to request state or local law enforcement to take a juvenile into custody and return the juvenile to the facility designated by the agency, if the juvenile is absent from placement without proper authorization. A warrant or court order is not required before the juvenile is taken into custody and returned to the appropriate facility."
SECTION 10. Section 20-7-7805 of the 1976 Code, as last amended by Act 384 of 1998, is further amended by adding a subsection to read:
"(D) When a child is adjudicated delinquent of a sexually violent offense as defined in Section 44-48-30 and committed to the Department of Juvenile Justice, the court must determine at the time of sentencing or at any time prior to the child's release from commitment whether or not the child should be subjected to proceedings under the Sexually Violent Predator Act in Chapter 48 of Title 44."
SECTION 11. This act takes effect upon approval by the Governor.
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