(A19, R26, S146)

AN ACT TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY ADDING SECTIONS 44-48-115 AND 44-48-180 SO AS TO PROVIDE FOR THE RIGHT TO CHALLENGE COMMITMENT TO THE SEXUALLY VIOLENT PREDATOR TREATMENT PROGRAM BASED ON INEFFECTIVE ASSISTANCE OF COUNSEL AND TO GIVE PRIORITY STATUS TO SEXUALLY VIOLENT PREDATOR CASES FOR PURPOSES OF SCHEDULING COURT PROCEEDINGS, RESPECTIVELY; BY AMENDING SECTIONS 44-48-30, 44-48-40, 44-48-50, 44-48-80, 44-48-90, 44-48-100, 44-48-110, 44-48-120, 44-48-130, 44-48-150, AND 44-48-160, ALL RELATING TO THE SEXUALLY VIOLENT PREDATOR ACT, SO AS TO ADD DEFINITIONS FOR "QUALIFIED EVALUATOR" AND "RESIDENT" AND CHANGE THE DEFINITION OF "LIKELY TO ENGAGE IN ACTS OF SEXUAL VIOLENCE", TO ESTABLISH EFFECTIVE DATES FOR THE GRANTING OF SUPERVISED REENTRY, TO REQUIRE MULTIDISCIPLINARY TEAMS TO DETERMINE WHETHER THERE IS PROBABLE CAUSE TO BELIEVE A PERSON IS A SEXUALLY VIOLENT PREDATOR, TO PROVIDE FOR THE USE OF COURT-APPOINTED QUALIFIED EVALUATORS AND TO ESTABLISH CERTAIN TIMELINES FOR EVALUATIONS, TO ALLOW FOR THE USE OF INDEPENDENT, QUALIFIED EVALUATORS IN CERTAIN CIRCUMSTANCES, TO REQUIRE COURTS TO CONDUCT A NONJURY HEARING BEFORE RELEASE OF A PERSON FOUND INCOMPETENT TO STAND TRIAL, TO ESTABLISH CERTAIN BENCHMARKS FOR ADDITIONAL REVIEWS OF MENTAL CONDITIONS, TO ESTABLISH CERTAIN REQUIREMENTS REGARDING EVALUATORS IN PROCEEDINGS ON PETITIONS FOR RELEASE, TO ALLOW ACCESS TO SEALED COURT RECORDS BY THE ATTORNEY GENERAL AND OTHER COUNSEL OF RECORD, TO MAKE CONFORMING CHANGES, AND FOR OTHER PURPOSES; AND BY AMENDING SECTION 24-21-32, RELATING TO REENTRY SUPERVISION, SO AS TO MAKE INMATES DETERMINED TO BE SEXUALLY VIOLENT PREDATORS INELIGIBLE FOR REENTRY SUPERVISION.

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

Definitions

SECTION 1.    Section 44-48-30 of the S.C. Code is amended by adding:

(13) "Qualified evaluator" means an individual who has education, training, and experience in sex offender evaluations and who is:

(a) a licensed psychiatrist or psychologist; or

(b) a trainee of the Department of Mental Health Fellowship Program who is working under the supervision and license of a Department of Mental Health psychiatrist or psychologist and who is approved for exemption by the Department of Mental Health Fellowship Program.

(14) "Resident" means a person who has been committed as a sexually violent predator for the purposes of long-term control, care, and treatment.

Definition

SECTION 2.    Section 44-48-30(9) of the S.C. Code is amended to read:

(9) "Likely to engage in acts of sexual violence" means that a person is predisposed to engage in acts of sexual violence and more probably than not will engage in acts of sexual violence to such a degree as to pose a menace to the health and safety of others.

Supervised reentry

SECTION 3.    Section 44-48-40(B) of the S.C. Code is amended to read:

(B) If 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 or supervised reentry, then the parole, conditional release, or supervised reentry must be granted to be effective one hundred eighty days after the date of the order of parole, conditional release, or supervised reentry. The Board of Probation, Parole and Pardon Services, the Board of Juvenile Parole, or the South Carolina Department of Corrections immediately must send notice of the parole, conditional release, or supervised reentry of the person to the multidisciplinary team, the victim, and the Attorney General. If the person is determined to be a sexually violent predator pursuant to this chapter, then the person is subject to the provisions of this chapter even though the person has been released on parole, conditional release, or supervised reentry. If at any time the person is determined to not be a sexually violent predator pursuant to this chapter, then the person shall be released pursuant to the order granting parole, or the order for conditional release or supervised reentry.

Multidisciplinary team

SECTION 4.    Section 44-48-50 of the S.C. Code is amended to read:

Section 44-48-50.    (A) The Director of the Department of Corrections must appoint a multidisciplinary team to review the records of each person referred to the team pursuant to Section 44-48-40. These records may include, but are not limited to, the person's criminal offense record, any relevant medical and psychological records, treatment records, victim's impact statement, 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, must assess whether or not there is probable cause to believe the person satisfies the definition of a sexually violent predator. If it is determined that probable cause does exist, then the multidisciplinary team must forward a report of the assessment to the prosecutor's review committee and notify the victim. The assessment must be accompanied by all records relevant to the assessment. Membership of the team must include:

(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 education, training, or experience in assessing, examining, or treating sex 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) an attorney with substantial experience in the practice of criminal defense law to be appointed by the Chief Justice to serve a term of one year.

(B) The Director of the Department of Corrections or his designee appointed pursuant to subsection (A)(1) shall be the chairman of the team.

Probable cause determination and evaluations

SECTION 5.    Section 44-48-80(D) of the S.C. Code is amended to read:

(D) If the probable cause determination is made, then the court must direct that, upon completion of the criminal sentence, the person must be transferred to a local or regional detention facility pending the conclusion of the proceedings under this chapter. The court must further direct that the person be transported to an appropriate facility of the South Carolina Department of Mental Health for an evaluation as to whether the person is a sexually violent predator and must order the person to comply with all reasonable testing and assessments deemed necessary by a court-appointed qualified evaluator. The court-appointed qualified evaluator must complete the evaluation within ninety days after the Department of Mental Health provides written certification to the Attorney General's Office and the person's legal counsel that it has received all medical, psychological, criminal offense, and disciplinary records and reports concerning the person but not greater than one hundred eighty days after the probable cause order is filed. The court may grant one extension upon the request of the court-appointed qualified evaluator and a showing of extraordinary circumstances. After the evaluation by the court-appointed qualified evaluator, if the person or the Attorney General seeks an independent evaluation by an independent qualified evaluator, pursuant to Section 44-48-90(C), then that evaluation must be completed within ninety days after receipt of the report by the court-appointed qualified evaluator. The court may grant an extension upon the request of the independent qualified evaluator and a showing of extraordinary circumstances. Any qualified evaluator who will be submitted as an expert at either a hearing or trial must submit a written report available to both parties.

Trial proceedings

SECTION 6.    Section 44-48-90(B) and (C) of the S.C. Code is amended to read:

(B) 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 no request is made, the trial must be before a judge in the county where the offense was committed within ninety days of the date the independent qualified evaluator requested by the person or Attorney General pursuant to Section 44-48-90(C) issues a report as to whether the person is a sexually violent predator, pursuant to Section 44-48-80(D), or, if there is no term of court, the next available date thereafter, and the case shall be treated as a priority case. If neither party seeks an independent evaluation, then the trial must be before a judge, or a jury if a jury trial is requested, in the county where the offense was committed within ninety days of the date the court appointed qualified evaluator issues the report as to whether the person is a sexually violent predator, pursuant to Section 44-48-80(D), or, if there is no term of court, the next available date thereafter. 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. The Attorney General must notify the victim, in a timely manner, of the time, date, and location of the trial. 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 must appoint counsel designated by the Office of Indigent Defense to handle sexual predator cases to assist the person.

(C) If the court appointed qualified evaluator determines that the person is not a sexually violent predator, then the Attorney General, with notice to the person, may seek an independent evaluation pursuant to this section. If the court appointed qualified evaluator determines that the person is a sexually violent predator, then the person, with notice to the Attorney General, may seek an opinion by an independent qualified evaluator pursuant to this section. In the case of an indigent person who requests an independent qualified evaluator, the indigent person must file and serve upon the Attorney General and the Commission on Indigent Defense a motion requesting payment and costs. The Attorney General shall have ten days from the date of service to file a response to the motion. If the court determines that the services are necessary and the requested compensation for the independent qualified evaluator is reasonable, then the court must authorize, in a written order prior to any fees or expenses being incurred, the person's attorney to obtain the services of an independent qualified evaluator to perform an evaluation or participate in the trial on the person's behalf and must authorize the payment from funds available to the Commission on Indigent Defense. All qualified evaluators are permitted to have reasonable access to the person for the purpose of the evaluation, as well as reasonable access to all relevant medical, psychological, criminal offense, and disciplinary records and reports. The court shall order the person to comply with any reasonable testing and assessments deemed necessary by the qualified evaluator for a thorough evaluation.

Persons incompetent to stand trial

SECTION 7.    Section 44-48-100(B) of the S.C. Code is amended to read:

(B) If the person charged with a sexually violent offense has been found incompetent to stand trial and is about to be released and the person's commitment is sought pursuant to subsection (A), then the court first shall conduct a non-jury hearing, where it will hear evidence and determine whether the person committed the act or acts with which he is charged. The hearing on this issue must comply with all the procedures specified in this section. In addition, the rules of evidence applicable in criminal cases apply, and all constitutional rights available to defendants at criminal hearings, except the right not to be tried while incompetent and the right to a jury trial, apply. After hearing evidence on this issue, the court must make specific findings on whether the person committed the act or acts with which he is charged; the extent to which the person's incompetence or developmental disability affected the outcome of the hearing, including its effect on the person's ability to consult with and assist counsel and to testify on the person's own behalf; the extent to which the evidence could be reconstructed without the assistance of the person; and the strength of the prosecution's case. If, after the conclusion of the hearing on this issue, the court finds beyond a reasonable doubt that the person committed the act or acts with which he is charged, then the court must enter a final order, appealable by the person, on that issue, and may proceed to consider whether the person should be committed pursuant to this chapter.

Evaluation of mental condition and related proceedings

SECTION 8.    Section 44-48-110 of the S.C. Code is amended to read:

Section 44-48-110.    (A)(1) A resident committed pursuant to this chapter must have an evaluation of his mental condition performed by a Department of Mental Health-designated qualified evaluator within one year from the filing date of the initial commitment order. Thereafter, a Department of Mental Health-designated qualified evaluator will evaluate the resident's mental condition within one year after a pending review is resolved by a filed court order indicating:

(a) a finding of no probable cause;

(b) a waiver by the resident; or

(c) an order of continued commitment after a periodic review trial.

(2) The designated qualified evaluator's report must be provided to the clerk of the court in the jurisdiction that committed the resident pursuant to this chapter, the Attorney General, the solicitor who prosecuted the resident, and the resident. The resident is entitled to the assistance of counsel, and if the person is indigent, the court must appoint counsel designated by the Office of Indigent Defense to handle sexual predator cases to assist the person.

(B) The resident may retain or, if the resident is indigent and so requests, the court may appoint a qualified evaluator to evaluate the resident, and the resident's qualified evaluator must have reasonable access to all medical, psychological, criminal offense, disciplinary, and treatment records and reports concerning the resident. In the case of an indigent resident who seeks to retain a qualified evaluator, the indigent resident must file and serve upon the Attorney General and the Commission on Indigent Defense a motion requesting payment and costs. The Attorney General shall have ten days from the date of service to file a response to the motion. If, after considering the number and dates of the resident's prior requests for funding, the court determines the resident's request is reasonable, then the court must approve all reasonable expenses associated with the evaluation.

(C) The Attorney General must serve upon the resident a copy of the annual report along with a notice of the right to request a hearing within sixty days of service. The resident must request a hearing in writing for the court to review the resident's status. If no request is made within sixty days of service, the resident's right to a hearing pursuant to this chapter is deemed waived.

(D) The Department of Mental Health must provide the resident with written notice of the resident's right to petition the court for release without the Department of Mental Health's authorization and a waiver of rights form, within one year of the last periodic review order or waiver of rights. The department must forward the designated qualified evaluator's report with the notice and waiver form to the clerk of court in the jurisdiction that committed the resident pursuant to this chapter, the Attorney General, and the solicitor who prosecuted the resident.

(E) The resident has a right to have an attorney represent him at the periodic review hearing, but the resident is not entitled to be present at the hearing. The resident may only be present at the hearing upon the issuance of a transport order received by the Department of Mental Health within not less than fifteen days of the hearing date. The Department of Mental Health-designated qualified evaluator will only be required to be present at the hearing if subpoenaed by the resident's attorney or the Attorney General in accordance with the South Carolina Rules of Civil Procedure. The Department of Mental Health must accept service of subpoenas for the appearance of the Department of Mental Health-designated qualified evaluator at the periodic review hearing.

(F) If the court determines that probable cause exists to believe that the resident's mental abnormality or personality disorder has so changed that the resident is safe to be at large and, if released, is not likely to commit acts of sexual violence, the court must schedule a trial on the issue. At the trial, the resident is entitled to the benefit of all constitutional protections that were afforded the resident at the initial commitment proceeding. The Attorney General must notify the victim of all proceedings. The Attorney General must represent the State and has the right to have the resident evaluated by a qualified evaluator chosen by the State. The trial must be before a jury if requested in writing by either the resident, the Attorney General, or the solicitor. If no request is made, the trial must be before a judge in the county where the offense was committed. The resident also has the right to have a qualified evaluator evaluate the resident on the resident's behalf, an