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2018 SC BAR CONVENTION
Criminal Law Section (Part 2)
“Emerging Issues in Criminal Law”
Friday, January 19
SC Supreme Court Commission on CLE Course No. 180800
Social Media Basics: Snapchat, Facebook, Instagram OH My! Understanding How Social
Media Works
Erin E. Bailey
2018 SC BAR CONVENTION
Criminal Law Section (Part 2)
Friday, January 19
No Materials Available
Evidence: Review of the Basics and Study of Emerging Issues
Hon. Thomas A. Zonay
2018 SC BAR CONVENTION
Criminal Law Section (Part 2)
Friday, January 19
No Materials Available
Department of Mental Health and Criminal Cases: Where We Stand and What You Need to
Know
Hon. Frank R. Addy, Jr. Monique Lee
2018 SC BAR CONVENTION
Criminal Law Section (Part 2)
Friday, January 19
South Carolina Department of
Mental Health Mental Illness and the Justice System
The SCDMH is one of the largest hospital and community based systems of care in South Carolina, with approximately 4,200 employees.
The inpatient side comprises: • Four licensed hospitals • Four nursing care centers • A Forensics Program • A Sexually Violent Predator Treatment Program
In the community, the Department is composed of 17 community-based, outpatient mental health centers. Each center has clinics, satellite offices, and specialty programs, which serve all 46 counties.
The Department’s Inpatient side, provides twenty-four hour, seven-day-a-week care, comprised of 807 acute psychiatric beds and 780 nursing home beds.
SCDMH: Then & Now
Community Mental Health Centers and
Hospitals/Program Services
• Aiken Barnwell CMHC • Anderson-Oconee-Pickens CMHC • Beckman Center for Mental Health
Services • Berkeley CMHC • Catawba CMHC • Charleston/Dorchester CMHC • Coastal Empire CMHC • Columbia Area Mental Health Center • Greenville Mental Health Center • Lexington County CMHC • Orangeburg Area Mental Health • Pee Dee Mental Health Center • Piedmont Center for Mental Health • Santee-Wateree CMHC • Spartanburg Area Mental Health Center • Tri-County CMHC Directory Web Sit • Waccamaw Center for Mental Health
Inpatient Facilities: • G. Werber Bryan Psychiatric
Hospital • Patrick B. Harris Psychiatric
Hospital • Morris Village Alcohol & Drug
Addiction Treatment Center • William S. Hall Psychiatric
Institute/Child & Adolescent • Sexually Violent Predators
Treatment Program Nursing Homes: • C.M. Tucker Nursing Care
Center • Richard M. Campbell Veterans
Nursing Home • Stone Pavilion • Veterans' Victory House
Nursing Home
Sexually Violent Predator Program
Forensics Program
Alcohol & Drug Hospital
Adult Hospital
Children’s Hospital
MHC Clinic
Mental Health Center
Mission, Vision, & Values
MISSION OF SOUTH CAROLINA DEPARTMENT OF MENTAL HEALTH
To support the recovery of people with mental illnesses.
MISSION OF DIVISION OF INPATIENT SERVICES (DIS)
To provide inpatient and related specialty services to support the recovery of persons with mental illness, and/or addictions.
VISION OF DIVISION OF INPATIENT SERVICES (DIS)
To set the standard of excellence for public mental health care in the state of South Carolina, providing a workplace that maximizes recruitment and retention of quality employees.
GOALS OF DIVISION OF INPATIENT SERVICES (DIS)
To provide quality, individually-focused care in a safe and therapeutic environment. To actively incorporate clients and families into the planning, designing, and delivery of
services. To design and implement processes that effectively manage human, fiscal, and other
resources.
What is Mental Illness
• Mental Illness is a disease that causes mild to severe disturbances in thought and/or behavior, resulting in an inability to cope with Life’s ordinary demands and routines.
• Approximately 54 million Americans suffer from some form of a mental disorder in a given year.
• There are more than 200 classified forms of mental illness. Some of the more common disorders are depression, bipolar disorder, dementia, schizophrenia and anxiety disorders.
Inpatient Treatment
G. Werber Bryan Psychiatric Hospital
- Adult Services
- Forensic Services - Columbia Regional Care Center (Correct Care previously GEO Care / Just Care)
- William S. Hall Child and Adolescent
Patrick B. Harris Psychiatric Hospital
Forensic
• Competency to Stand Trial (CST)
▫ The Defendant’s mental state at the time of the trial. SCCA FORM 221
• Criminal Responsibility (CR)
▫ The mental state at the time of the alleged crime.
▫ SCCA FORM 222
TIME LINE
• CRIME TRIAL
• ARREST Evaluation
• • ____________________________ • JAIL
• * Competency to Stand Trial: refers to the
defendant’s mental state at the time of trial • * Criminal Responsibility and Capacity to Conform:
refer to the mental state at time of alleged crime.
Competency to Stand Trial is Raised (Can be raised at any point of the proceedings)
Order for Competent to Stand Trial Evaluation
Pursuant to State v. Blair SCCA Form 221
Hearing, following Evaluation, to Determine Issue of Competency to
Stand Trial
Found Competent Criminal Proceedings Resume. SCCA Form
221(a)
Found Incompetent Court must then determine
whether defendant is:
Evaluation for Criminal Responsibility on Capacity to Conform. SCCA Form
222
Likely To be
restored to competency
Unlikely To be
restored to competency
Defendant is committed to DMH for 60 day restoration. SCCA Form 221 (b)
Court orders Solicitor to initiate a Petition
for Judicial Admission (civil commitment to
DMH) by Probate Court
SCCA Form 221 (c)
Evaluation
Found Competent Criminal Proceedings Resume SCCA Form
221(a)
Found Incompetent & Unlikely Solicitor initiates a Petition for Judicial Admission (civil commitment to DMH) by Probate Court. SCCA Form 221 (c) Evaluation for Criminal
Responsibility on Capacity to Conform. SCCA Form 222
Competency to Stand Trial (CST)
• State v. Blair (BLAIR HEARING) 273 S.E.2d 536 (1981)
• when competency is at issue, a hearing is required to determine if the accused is competent to stand trial. SCCA Form 221
Competent to Stand Trial
• CST (Pursuant to State v. Blair) ▫ At the present time has (1) the capacity to understand
relevant legal constructs and (2) the capacity to utilize that information in appropriate ways in one’s own defense and to function in the legal setting Understanding of Rights and adversarial nature of court proceedings Capacity to assist in Defense
Understands charges
Understands defense pleas
Understands possible sentencing options
Understands jury and bench trials
Understands role of court officials
Understands the importance of courtroom behavior
Not Competent to Stand Trial
• When the General Sessions Court finds a person not competent to stand trial due to Mental Illness:
▫ Solicitor is ordered to initiate a Petition for Judicial commitment to Department of Mental Health
▫ Moves from Criminal to Probate Court
▫ Same Standards for commitment as a Civil Case
▫ Defendant is to have all rights and privileges of other involuntary hospitalized patients.
▫ If not found in need of treatment the person shall be released. Can be inpatient or outpatient.
Insanity as a Defense
• Insanity is an Affirmative Defense – defendant must raise it.
• When insanity is raised by the defendant or when sufficient evidence of a mental disease or defect of the defendant is admitted into evidence there are 4 possible verdicts:
Guilty
Not Guilty
Not Guilty by Reason of Insanity (NGRI) 17-24-10
Guilty but Mentally Ill (GBMI) 17-24-70
17-24-10 – Not Guilty by Reason of
Insanity (NGRI) – Criminal Responsibility • An affirmative defense . . . At the time of the act
constituting the offense, the defendant, as a result of mental disease or defect, lacked the capacity to distinguish legal or moral right from legal or moral wrong or to recognize the particular act charged as legally or morally wrong.
• The defendant has the burden of proving the defense by a preponderance of the evidence
▫ Order for McNaughton Evaluation – SCCA Form 222
▫ Order Finding NGRI – SCCA Form 222a
▫ NGRI – Final Order 222b
• Defendant had a mental illness that prevented him / her from controlling their actions according to the law.
• Subject to same punishment as a conviction.
• Sentenced to Department of Corrections – not treated by DMH.
Guilty but Mentally Ill (GBMI)17-24-70
DMH Forensic Inpatient Program
• Located in a Secure facility known as the Columbia Regional Care Center in Northeast Columbia.
• 229 Beds for Mental Health Clients that are involved in the Criminal Justice System.
DMH Forensic Inpatient
• Pre-trial emergency admissions – Probate Order – Admit from Detention Centers
• 15 day inpatient evaluations – General Sessions - SCCA Form 221
• 60 day competency restorations – General Sessions – SCCA Form 221b
• Incompetent to Stand Trial and Unlikely to Become Competent in the Foreseeable Future (INR) General Sessions move to Probate to determine if in need of mental health treatment – SCCA Form 221c
• Not Guilty by Reason of Insanity (NGRI) – General Sessions – Probate not involved – SCCA Form 222
Emergency Admission • Civil Commitment (S.C. Code Ann. 44-17-410)
• Admission from jail
• Stabilize psychiatric condition
• Return to jail once stable
• Charges are still pending or active
• Probate Order - Only
15 Day Inpatient Evaluation
• Person is court ordered for outpatient evaluation but it is determined that the person needs a period of inpatient evaluation (S.C. Code Ann. 44-23-410) SCCA Form 221 – General Sessions
• Once evaluation complete person is returned to jail. If on bond, patient is returned to their residence/placement
• Charges are still pending or active
60 Day Competency Restoration
• Person found by a General Sessions Court to be Incapable of Standing Trial due to Mental Illness but LIKELY to become capable or competent with treatment (S.C. Code Ann. 44-23-430(3)) – SCCA Form 221 (b)
• After 60 days a competency evaluation will be done and sent to court
• After restoration period person is usually returned to jail. If person is on bond, will return to residence/placement
• Charges are still pending or active
INR – Incompetent Not Restorable
• Person is found by the General Sessions Court to be Incompetent to Stand Trial and UNLIKELY (IST) S.C. Code Ann. 44-17-510 through 44-17-660 and 44-23-430 (2) SCCA 221c
• Judicially committed through the Probate Court (Solicitor petitions)
• Charges can still be pending or active, dismissed or Nolle Prosequi
• Problem occurs at discharge when Solicitor will not dismiss or Nolle Pross charges.
• There is a difference between competency to stand trial and meeting inpatient commitment criteria (S.C. Code Ann. 44-17-580)
▫ Probate Hearing – after a finding of not competent to stand trial and unlikely to become competent in General Sessions – matter moves to Probate Court
• At the Probate hearing, the judge, based upon the evidence presented, may order the person:
▫ Not Mentally Ill and not in need of Inpatient or Outpatient Treatment
▫ Mentally Ill and upon clear and convincing evidence that involuntary treatment is needed and determine if Outpatient or Inpatient
▫ Be committed for court ordered inpatient treatment in the hospital until the treatment team determines the person no longer requires hospital level of care.
44-17-580 Standard for Hospitalization
Same standard for Forensics Inpatient or Civil Inpatient
• If, upon completion of the hearing and consideration of the record, the court finds upon clear and convincing evidence that the person is mentally ill, needs involuntary treatment and because of his condition:
• (1) lacks sufficient insight or capacity to make responsible decisions with respect to his/her treatment OR
• (2)there is a likelihood of serious harm to himself or others
Release from inpatient - INR
• Pending Charges – 44-23-460 ▫ After a hospital finds the defendant no longer in need of
hospitalization, but prior to discharge, the Court in which the charges remain pending shall conduct a new hearing on the defendant’s capacity to stand trial.
• Nolle Prossed or Dismissed Charges ▫ Like any civilly committed patient, must be discharged
when the person no longer meets the criteria for civil commitment. no longer in need of inpatient treatment. There will be a Probate Court Order for Involuntary Outpatient Treatment.
▫ DMH notifies the Solicitor’s office prior to discharge of the plan for discharge.
NGRI
• Person found Not Guilty by Reason of Insanity is initially committed to DMH for up to 120 days – SCCA Form 222a;
• At 120 day period DMH must recommend continued inpatient treatment or outpatient treatment. If continued inpatient treatment SCCA Form 222b is used. If Outpatient Treatment is ordered by the General Sessions Judge an Outpatient Order with conditions of discharge is used.
• No pending charges • Treatment, not punishment • No Probate Order - Must have a General Sessions Court order for
Outpatient Treatment • If person violates order, must be returned to inpatient forensics unit • Must treat/follow through the max out date determined by the Chief
Administrative Judge
Forensic Inpatient
• There are approximately 50 NGRI’s admitted to the inpatient forensic program at DMH at any given time.
• There are approximately 150 treated on an outpatient basis in the community under a circuit court order.
# of Defendants found NGRI by Year in
South Carolina • 2009 – 8
• 2010 – 9
• 2011 – 12
• 2012 – 3
• 2013 - 9
• 2014- 7
• 2015-13
• 2016-14
• 2017-14
- Misconceptions
• If Found NGRI person will remain in the inpatient hospital with no possibility of release into the community.
• If Found Not Competent to Stand Trial and Judicially Committed that the person will remain in the inpatient hospital with no possibility of release into the community
