The Supreme Court of South Carolina
Re: Interagency Protocol for Defendants Found Not Guilty by Reason of Insanity
I find that in the State of South Carolina there are currently under supervision 135 individuals who have been charged with a criminal offense and subsequently found not guilty by reason of insanity (NGRI). The treatment, care, and management of NGRI individuals require the cooperation and involvement of multiple agencies across the sixteen judicial circuits. The general statutory framework for the NGRI process is set forth in Chapter Twenty-Four (24) of Title Seventeen (17) of the South Carolina Code of Laws, and the various agencies named therein have attempted, consistent with these statutes, to cooperate in their daily administration and management of those Defendants who have been adjudicated NGRI. Although each of these entities have internal policies with regard to NGRI procedures, no comprehensive document encompassing the operations of all agencies has been promulgated prior to the development of this interagency protocol. It is clear that a consistent statewide procedure for all agencies to follow in the supervision of NGRI defendants is the most efficient method of operation, avoids disparate treatment of the NGRI population, and provides a template by which all will have a uniform understanding of the entire process.
I further find that additional purposes of the development of this protocol are the protection of the general public and particularly the victims of crimes committed by those adjudicated NGRI, to clearly set forth the rights of requesting victims throughout the NGRI process, and to assure fair treatment and equal protection of the law to those who are adjudicated NGRI.
I further find that the following underlying principles, systemic guidelines, and administrative procedures shall be adhered to by the South Carolina Judicial Department, the Department of Parole, Probation and Pardon Services, the Department of Mental Health, the Commission on Indigent Defense, the Crime Victim's Ombudsman, and the Prosecution Coordination Commission in the care, supervision, and treatment of criminal Defendants adjudicated not guilty by reason of insanity.
I further find that the attached procedure has been developed and agreed to by representatives from the South Carolina Judicial Department, the Department of Parole, Probation and Pardon Services, the Department of Mental Health, the Commission on Indigent Defense, the Crime Victim's Ombudsman, and the Prosecution Coordination Commission.
Therefore, pursuant to Article V, §4, South Carolina Constitution,
IT IS ORDERED that the attached Interagency Protocol for defendants found not guilty by reason of insanity, which is incorporated and made part of this Order, is hereby approved for use in the 16 judicial circuits statewide effective immediately.
IT IS SO ORDERED.
s/Jean H. Toal
Jean H. Toal
Chief Justice of South Carolina
Columbia, South Carolina
April 24, 2014
INTERAGENCY PROTOCOL FOR DEFENDANTS
FOUND NOT GUILTY BY REASON OF INSANITY
I. PRELIMINARY LEGAL CONSIDERATIONS
Legal insanity is an affirmative defense to a prosecution for crime. In South Carolina criminal law, a legally insane Defendant is an individual who “as a result of mental disease or defect, lacks the capacity to distinguish moral or legal right from moral or legal wrong, or to recognize the particular act charged as morally or legally wrong [SC Code Ann. 17-24-10(A)].
As an affirmative defense, the Defendant bears the burden of asserting and proving insanity by a preponderance of the evidence [SC Code Ann. 17-24-10(B)]. If it appears to the Court that the sanity of the Defendant will be an issue at trial, and the Defendant cannot afford a psychiatric examination to investigate the issue, such examination must be provided at state expense. Ake vs. Oklahoma, 470 U.S. 68 (1985). In South Carolina, the Department of Mental Health is the designated agency to conduct such examinations. The Court may order a psychiatric examination in one of three ways: (1) ex-parte at the request of the Defendant to determine the medical viability of an insanity defense; (2) by consent of both the prosecution and the Defendant without regard to whether the insanity defense has been formally asserted; or, (3) upon motion of the prosecution after the Defendant has raised the defense of insanity (See SCJD General Sessions Form Order 222). While the prosecution cannot compel a psychiatric evaluation of a Defendant who has not asserted the defense of insanity, the prosecution can force the Defendant to elect whether he intends to assert the defense through the use of current Rule 5(f), SCCrimP.
The assertion of the defense of insanity does not alter the constitutional rights of a victim to be present and participate in a trial or dispositional hearing. Further, it is the intent of this protocol that victims have the further right to be advised of a change of custody status that would return an NGRI offender to the community or release him from supervision. Victims are reminded that the triggering event for receipt of notice under the Victims and Witnesses Bill of Rights is registration with the solicitor’s office during the initial prosecution of the crime, and because the care and treatment of individuals adjudicated NGRI may occur over a span of many years, victims have the continuing responsibility to update the solicitor’s Victim Advocate with any change of address or alteration of contact information. At all times, the use of the term “victim” in this protocol refers to individuals who have properly registered and requested notification under the Victims and Witnesses Bill of Rights, and who have kept current contact information on file with the solicitor.
II. NGRI DETERMINATION—INITIAL COMMITMENT ORDER
Whether a Defendant is legally insane is a question for jury determination (SC Code Ann. 17-24-30). However, nothing prevents a Defendant from waiving a jury trial and submitting the issue to a Circuit Judge for determination. When all evidence clearly indicates that the Defendant meets the criteria for legal insanity, and there is no dispute as to this issue, nothing in our law prevents the parties from consenting to a finding of NGRI and submitting the matter to the Court.
Defendants adjudicated NGRI are not committed to the South Carolina Department of Corrections and are not considered “prisoners,” as they have not been found guilty of a crime. Rather than incarceration, they are committed to care and treatment. The terms of that care and treatment are to be therapeutic and not punitive [See SC Code Ann. 17-24-40(D)]. Throughout this protocol, individuals adjudicated NGRI are referred to as “Defendants.”
When a finding of NGRI is made, the Circuit Judge should immediately issue an Order of commitment for hospitalization [SCJD General Sessions Form Order 222(a)] at the South Carolina Department of Mental Health (hereafter, SCDMH) for a period not to exceed one hundred and twenty (120) days for purposes of an evaluation to determine the manner of future care and treatment of the Defendant.
Whether the Defendant’s underlying mental condition is considered an intellectual disability (formerly referred to as mental retardation) or a mental illness, Defendant is committed to SCDMH because of that agency’s statutory directive [(SC Code Ann. 17-24-40(A)] and the fact that SCDMH has secure hospital facilities for that purpose. Although the South Carolina Department of Disabilities and Special Needs may participate in the treatment and care of a particular Defendant, the initial commitment is always to SCDMH, and supervision is the responsibility of SCDMH.
When sufficient time for evaluation has passed, the examination report and findings are returned from SCDMH to the Chief Administrative Judge for General Sessions of the circuit where the prosecution occurred. Henceforth, all future decisions as to the care of the Defendant shall be made by the then serving Chief Administrative General Sessions Judge for the circuit [SC Code Ann. 17-24-40(E).
III. HEARING TO ESTABLISH MANNER OF TREATMENT
When the initial evaluation report is sent to the Chief Administrative Judge, within fifteen (15) business days of receipt, that Judge must conduct a hearing to decide the level of care required by the Defendant, including whether the Defendant needs continued hospitalization or not [SC Code Ann. 17-24-40(C)(1)].
The responsibility for scheduling and coordinating this hearing lies with the prosecuting solicitor, including arranging the issuance of a transport Order to bring the Defendant from SCDMH facilities to the hearing, providing for the appearance of SCDMH examiners and other witnesses if necessary, notifying victims, notifying defense counsel, and taking such other steps as are necessary to properly bring the issue before the Court.
A. PROCEDURE IF HOSPITALIZATION REQUIRED
After conducting the hearing, if the Judge determines that the Defendant is in need of continuing and ongoing hospitalization, he shall issue an Order remanding the Defendant to the custody of the SCDMH for hospitalization for care and treatment until further Order of the Court. Under such Order, the Defendant shall remain hospitalized in a secure facility at all times.
At a later time, if hospital officials charged with the care of the Defendant believe that he is no longer in need of hospitalization and is capable of being released to a less restrictive treatment environment, the hospital director shall notify the Chief Administrative Judge in writing of a request to release the Defendant from hospital care. A copy of this communication should be sent to the solicitor (whose victim advocate shall be responsible for notifying the victim), defense counsel, and the Clerk of Court for filing in the Defendant’s General Sessions file for the charge(s) on which he was adjudicated NGRI.
Within twenty-one days after receipt of such notice, the Chief Administrative Judge shall conduct a hearing on the request of SCDMH to release the Defendant from continuous hospital care. The responsibility for scheduling and coordinating this hearing lies with the original prosecuting solicitor, including arranging the issuance of a transport Order to bring the Defendant from SCDMH facilities to the hearing, providing for the appearance of SCDMH examiners and other witnesses if necessary, notifying victims, notifying defense counsel, and taking such other steps as are necessary to properly bring the issue before the Court.
After conducting the hearing, if the Judge determines that the Defendant remains in need of continued hospitalization, he shall deny the request of the hospital director and issue an Order requiring SCDMH to continue secure hospitalization for inpatient care and treatment of the Defendant until further Order of the Court. If the Judge determines the Defendant may be released from the hospital under certain terms and conditions, he shall issue an Order as outlined in section “B” below.
B. PROCEDURE IF HOSPITALIZATION NOT REQUIRED
After conducting the hearing, if the Judge determines that the Defendant IS NOT in need of continued hospitalization, he shall issue an Order releasing the Defendant to the custody of the SCDMH for care and treatment under such terms and conditions as shall be appropriate. These terms may include provisions for the safety of the community in general and the victim in particular, including “no contact” strictures, specific housing requirements, and curfew restrictions. Therapeutic terms of the Order may include requirements for following a medication regimen, prohibiting the consumption of alcohol, periodic medical and/or psychiatric examinations, scheduled reporting times to probation officers, and other necessary provisions [SC Code Ann. 17-24-40(D)]. In the event of violation, and particularly if the alleged violation is a community, victim, or Defendant safety issue, the Order may contain a provision for immediate detention of Defendant until such time as a bed is available for recommitment to a secure SCDMH hospital or other appropriate facility.
If after the hearing the Defendant is to be released from the hospital where he has been undergoing examination, the prosecuting solicitor shall immediately notify the local probation office to begin monitoring compliance by Defendant of the terms and condition of his release [SC Code Ann. 17-24-80(A)]. If later in the course of treatment the Defendant is re-hospitalized and subsequently released again, the responsibility for notification to appropriate parties for all subsequent releases lies with SCDMH as outlined below in Section VI.
IV. DUTIES OF THE PROBATION DEPARTMENT
The Probation, Parole, and Pardon Services (hereafter, Probation) office in the county where the Defendant currently resides is statutorily tasked with responsibility for monitoring compliance of NGRI Defendants who are not in need of hospitalization [SC Code Ann. 17-24-80(A)]. The role of the probation agent is not one of supervision, but of monitoring. Whether or not specifically contained in the judge’s release Order, the supervising probation agent may require that the Defendant report to the probation office on whatever schedule is deemed necessary to assure Defendant’s compliance with the Court’s Order.
Probation shall establish a statewide Administrator to ensure that monitoring protocols are maintained by local probation offices in accordance to statute. Each county Probation Agent in Charge shall appoint an agent who shall be the NGRI contact officer for that office. A statewide list of county NGRI officers shall be maintained by the statewide Administrator in the Department Central Office, and that list shall be provided by the Administrator or Office of General Counsel to each Chief Administrative General Sessions Judge for the counties in his circuit during the first week of January each year.
By January 15 of each calendar year, the Administrator shall see that each Probation county NGRI contact officer shall provide in writing to the Chief Administrative General Sessions Judge in his county with a list containing the name of each NGRI Defendant currently under monitoring in that county, the criminal charge(s) for which the Defendant was adjudicated NGRI, whether the Defendant has ever been found to have violated the terms of his Order of Release, and the quarterly monitoring report for the last quarter of the preceding calendar year. Additionally, the NGRI contact officer shall notify the Judge of the names and charges for any NGRI Defendants previously being monitored within the last calendar year but currently re-hospitalized due to violation of the Court’s release Order.
By the fifteenth (15th) day of the month following the end of each calendar year quarter, the county Probation NGRI contact officer shall provide a quarterly monitoring report to the chief administrative judge, the circuit solicitor, defense counsel, the Defendant, and the Clerk of Court for filing in the Defendant’s General Sessions file for the charge(s) on which the Defendant was adjudicated NGRI. This report shall be made upon a standard format which is attached to this Protocol as Exhibit One.
Because the role of the Probation agent is one of monitoring and not supervision, the agent shall have no discretion upon determining that a violation of the Order of Release has occurred, and shall immediately provide written notice that he has determined a violation has occurred and the nature of that violation to the chief administrative judge, the circuit solicitor, defense counsel, the Defendant, the SCDMH Outreach Clinic, and the Clerk of Court for filing in the Defendant’s General Sessions file for the charge(s) on which Defendant was adjudicated NGRI. [SC Code Ann. 17-24-80(C)]. Upon receipt and review of such notice, the Chief Administrative Judge may conduct a hearing to determine whether the Defendant’s Order of Release should be terminated and the Defendant returned to hospitalization treatment, whether changes should be made in the conditions of the Order of Release, or whether no action should be taken at that time. In the event a hearing is ordered, it shall be the responsibility of the prosecuting solicitor to schedule the hearing, require the appearance of necessary witnesses, notify the victim, notify defense counsel, and present the case to the Court. The decision as to what action to take as a result of the alleged violation, if any, is at the discretion of the Court.
V. ROLE OF COUNSEL AND OFFICE OF INDIGENT DEFENSE
Defendants in the criminal justice system are entitled to representation by counsel, and to appointment of counsel if indigent (U.S. CONST. Amend. VI). In addition to the right to counsel during the initial prosecution, NGRI Defendants are further entitled to legal representation during proceedings to determine whether there has been a violation of the terms and conditions of a release Order, as the Defendant’s liberty interests are at stake.
Original trial counsel for an NGRI Defendant is required to remain counsel for a period of two years from the original date of NGRI adjudication (SC Code Ann. 17-24-60). After that two year period has lapsed, counsel may petition the Chief Administrative Judge for General Sessions to be relieved as counsel. A copy of such petition must be filed with the Clerk of Court, served upon the Defendant, served upon the prosecuting solicitor, the Department of Mental Health Outreach Clinic, the probation agent monitoring Defendant, and also forwarded directly to the office of the Chief Administrative Judge. In the event of failure to file such petition, counsel shall continue to represent Defendant, and shall be responsible for representation during subsequent violation hearings, no matter how much time has passed from the original prosecution. If original counsel was a public defender and no petition to be relieved has been filed, yet the particular attorney who represented Defendant is no longer with the public defender office, another attorney in that office shall automatically be responsible for representation, and one shall be appointed if no one assumes representation. In that event, notices for the Defendant should be sent to the Chief Public Defender for the circuit. The same requirements are true for attorneys in private practice, with notices being sent to the managing attorney. Motions to be relieved after service of notice of a violation hearing are not timely.
If counsel has properly moved to be relieved and the Court has granted the petition, in the event there is notice of a violation hearing, the prosecuting solicitor who is scheduling the hearing shall notify the Clerk of Court, who shall immediately appoint counsel from the local public defender office to represent the Defendant. Nothing herein shall prevent SCDMH from directly contacting the local public defender office to advise of the pending violation proceedings. Because the Defendant is already under a legal disability and potentially already incarcerated or returned to the secure treatment unit (most community release orders provide for immediate re-hospitalization), he shall not be required to seek out the public defender and apply for representation. Nothing herein prevents the public defender from collecting any required application fee directly from the Defendant.
In the event of a violation hearing, defense counsel must contact the NGRI Defendant at least seventy-two (72) hours prior to the date of the hearing to discuss the purpose of the hearing, prepare any defense therefor, and arrange for witnesses who may appear on behalf of the Defendant. Because this is a public safety issue, counsel should be aware that lack of competency on the part of the Defendant is not a defense to a release violation, nor will the hearing be postponed while the competency of the Defendant is determined. Lack of competency may impact the decision of the judge and rehabilitative efforts of the Department of Mental Health, but will not bar the proceedings.
VI. DUTIES OF DEPARTMENT OF MENTAL HEALTH
The South Carolina Department of Mental Health is statutorily charged with responsibility for the care and treatment of NGRI adjudicated Defendants, regardless of whether the Defendants are hospitalized or released to community care. Once hospitalized, SCDMH may not release a Defendant to community care without approval of the Chief Administrative Judge [SC Code Ann. 17-24-40(c)]. When a Defendant is released to community care, the Department of Probation is responsible to monitor the compliance of the Defendant with the Judge’s Release Order, but the duty to supervise the Defendant remains with SCDMH. The close cooperation of personnel within these two agencies is necessary for the proper care and treatment of the Defendant, the protection of the public, and the success of the NGRI statutory scheme.
The Department of Mental Health shall operate a statewide Outreach Clinic that shall have monthly contact with each NGRI Defendant currently under supervision who is not hospitalized. In the event an NGRI Defendant is not able to attend the Outreach Clinic any particular week, DMH personnel shall contact the Defendant or his caregiver to assure that he is not in need of immediate care and in is compliance with the Release Order.
When an NGRI Defendant is released by Court Order from a hospital setting to community care, the legal office of DMH shall notify and provide a copy of the release order the local mental health center where the Defendant shall be treated, the DMH Outreach Clinic, and the legal department of SCDPPPS.
By the last day of each calendar year quarter, the mental health center in the county where the NGRI Defendant currently resides shall forward a quarterly report to the local probation agent monitoring Defendant advising of the Defendant’s care and treatment and current level of compliance with the terms and conditions of his release order. This report shall form the basis of the quarterly report from Probation to the Chief Administrative Judge due by the fifteenth (15th) day of the following month.
In the event of alleged violation of the Release Order that involves a community or Defendant safety issue, in the discretion of SCDMH employees, SCDMH shall immediately report such alleged violation to the Sheriff of the county where the Defendant is located, with a request to pick up the Defendant and return him to a facility designated by SCDMH. At that time, SCDMH legal office shall also notify the Defendant, the probation officer, the prosecuting solicitor, and defense counsel. It is then the duty of the probation officer to notify the Chief Administrative Judge [SC Code Ann. 17-24-80(C)]. If the alleged violation does not involve a safety issue for which the Defendant should be immediately taken into custody, then SCDMH should notify the same parties with the exception of the sheriff, and it is then the duty of the probation officer to notify the Chief Administrative Judge, who will determine whether a hearing on the matter is necessary.
VII. STATEMENT OF THE RIGHTS OF VICTIMS
Pursuant to the constitution of the State of South Carolina and the statutory Victims and Witnesses Bill of Rights, victims of crime shall be accorded the following rights in the NGRI process:
- The right to appear and participate in the initial prosecution of the Defendant;
- The right to be notified by the prosecuting solicitor, be present for, and be heard before the Court when an adjudication of NGRI is made, and if unable to be present in Court but requesting to be informed, the right to be notified by the prosecuting solicitor that an adjudication of NGRI has been made;
- The right to be notified in writing by the prosecuting solicitor, be present for, and be heard before the Court during the hearing when the final Order of Commitment setting the terms and conditions of care and treatment for Defendant is made by the Court, and if unable to be present in Court but requesting to be informed, the right to be notified by the prosecuting solicitor of those terms and conditions of care and treatment;
- The right to be notified in writing by the Probation Office each subsequent time after initial release when an NGRI Defendant is again released from a hospital setting to community care, whether such hospitalization was long term or temporary;
- The right to be notified in writing by the Probation Office, present for, and to be heard before the Court when a hearing for an alleged violation of a release order occurs, and if unable to be present in Court but requesting to be informed, the right to be notified by the prosecuting solicitor of the result and decision of such hearing; and,
- The right to be notified in writing by the prosecuting solicitor when an NGRI Defendant obtains final release from supervision.
VIII. FINAL RELEASE FROM NGRI SUPERVISION
South Carolina law does not permit an NGRI Defendant to remain under supervision for a period longer than the maximum sentence for the crime with which he was adjudicated NGRI. Each Final Order of NGRI Commitment [(SCJD Form Order 222(b)] contains a provision for an end date of supervision. There is no early release from NGRI supervision except by Order of the Chief Administrative Judge, and then only under exceptional circumstances. Upon the expiration of the Order of NGRI Commitment, if it is felt that further supervision is needed at that time, then a civil commit proceeding must be brought in the Probate Court by SCDMH, as the criminal court supervision shall end (SC Code Ann. 17-24-50). When the time for release from NGRI supervision is reached, SCDMH shall have the responsibility to notify the Defendant, defense counsel, probation agent, clerk of court, and the prosecuting solicitor. The victim shall then be notified by the prosecuting solicitor (because the solicitor’s office has possession of the original victim contact information and any updates thereto). No court hearing shall be necessary, as release is mandatory, and at the appointed time, the Defendant’s NGRI supervision shall end.
Sample Format for NGRI Quarterly Report Letter
The Honorable ______________
Chief Administrative Judge
Re: Not Guilty by Reason of Insanity (NGRI) Quarterly Report: Defendant _______________
Case Number: _________________________
Dear Judge ___________:
Please accept the following as the NGRI report for the quarter ending ________________ regarding defendant _________________ under Case Number _____________________.
__________ was found NGRI on ______________ for the offense of ________________. An order was issued discharging the defendant from hospitalization on ______________. The __________ Office of SCDPPPS began monitoring this defendant on ________________. There have been no admissions since the defendant was released to the community in _______. The case is currently assigned to me, Agent _________________________, of the ________________ County Office of SCDPPPS.
Indicate whether the defendant has been compliant and discuss the defendant's treatment record.
I will continue to monitor _______________________ compliance with the Order of the Court and will notify the Court immediately upon being advised of any violations. The next quarterly report will be submitted no later than ___________________.
SCDPPPS, ___________ County
_____________, _____Judicial Circuit Solicitor
_____________, __________ County Clerk of Court
_____________, Public Defender
_____________, SCDMH Treatment Counselor