GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1997

S	1 

SENATE BILL 759

Short Title:  Guilty But Mentally Ill-2.	(Public)

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Sponsors: Senators Cooper; Albertson, Ballantine, Kerr, Kinnaird, Lee, Martin of Guilford, McDaniel, Odom, Rand, and Winner.

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Referred to:  Judiciary.

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April 8, 1997

A BILL TO BE ENTITLED
AN ACT TO CREATE THE VERDICT OF GUILTY BUT MENTALLY ILL AND TO PROVIDE FOR THE TREATMENT, MONITORING, AND SUPERVISION OF INSANITY ACQUITTEES.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 14-17 reads as rewritten:
"§ 14-17.  Murder in the first and second degree defined; punishment.
A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon shall be deemed to be murder in the first degree, a Class A felony, and any person who commits such murder shall be punished with death or imprisonment in the State's prison for life without parole as the court shall determine pursuant to G.S. 15A-2000, except that (i)	any such person who was under 17 years of age at the time of the murder shall be punished with imprisonment in the State's prison for life without parole, and (ii) any such person who is found guilty but mentally ill under G.S. 14-17.2 shall be guilty of second degree murder and punished as a Class B2 felon.  Provided, however, any person under the age of 17 who commits murder in the first degree while serving a prison sentence imposed for a prior murder or while on escape from a prison sentence imposed for a prior murder shall be punished with death or imprisonment in the State's prison for life without parole as the court shall determine pursuant to G.S. 15A-2000.  All other kinds of murder, including that which shall be proximately caused by the unlawful distribution of opium or any synthetic or natural salt, compound, derivative, or preparation of opium, or cocaine or other substance described in G.S. 90-90(a)4., when the ingestion of such substance causes the death of the user, shall be deemed murder in the second degree, and any person who commits such murder shall be punished as a Class B2 felon."
Section 2.  Chapter 14 of the General Statutes is amended by adding a new section to read:
"§ 14-17.2.  Guilty but mentally ill defined.
(a)	If a defendant charged with murder in the first degree asserts the defense of insanity, the trier of fact shall find the defendant guilty but mentally ill if:
(1)	The State proves beyond a reasonable doubt the elements of murder in the first degree;
(2)	The defendant fails to prove to the jury's satisfaction that the defendant was insane; and
(3)	The defendant proves to the jury's satisfaction that he or she, at the time of the offense, had a mental disease or defect that substantially impaired the defendant's ability to conform his or her conduct to the requirements of law.
(b)	'Mental disease or defect,' as used in this section, does not include:
(1)	An abnormality manifested only by repeated criminal or otherwise antisocial conduct; or
(2)	Behavior manifested only as a result of voluntary intoxication."
Section 3.  The title of Article 80 of Chapter 15A of the General Statutes reads as rewritten:
"ARTICLE 80.
Defendants Found Not Guilty by Reason of Insanity and
Defendants Found Guilty But Mentally Ill."
Section 4.  Article 80 of Chapter 15A of the General Statutes is amended by adding a new section to read:
"§ 15A-1323.  Treatment for defendants found guilty but mentally ill.
When a defendant charged with a crime is found guilty but mentally ill under G.S. 14-17.2, the presiding judge shall include in the written commitment order, in addition to that information required by G.S. 15A-1301, an order that the defendant receive a mental health evaluation arranged for or provided by the Department of Correction.  The Department of Correction shall make available to the defendant during the period of imprisonment any treatment consistent with the recommendations and findings of the mental health evaluation.  The order of the commitment shall require that, before the defendant may be released from a term of imprisonment, the Department of Correction must evaluate the defendant's mental condition and prepare a suitable community-based treatment plan for implementation upon the defendant's release.  The treatment plan shall be prepared jointly by the Department of Correction and the area mental health, developmental disabilities, and substance abuse authority serving the geographical area where the defendant plans to reside.  The treatment plan shall be specifically designed to facilitate the return of the defendant to the community as a functioning, self-supporting citizen, and may include intensive supervision, day reporting, monitored medications, and appropriate supportive provisions for assistance in establishing residency, securing gainful employment, undergoing needed vocational rehabilitation, and such other outpatient services that appear beneficial."
Section 5.  G.S. 122C-268.1(i) reads as rewritten:
"(i)	The respondent shall bear the burden to prove by a preponderance of the evidence that he (i) no longer has a mental illness as defined in G.S. 122C-3(21), or (ii) is no longer dangerous to others as defined in G.S. 122C-3(11)b. If the court is so satisfied, then the court shall order the respondent discharged and released; provided, however, that the court shall not discharge an individual who, as a result of medication or hospitalization, is no longer dangerous to others, if it can be determined within reasonable medical probability that without continued medication or supervised treatment the respondent will suffer disability or deterioration that would result in dangerousness as defined in G.S. 122C-3(11)b.  Such an individual may only be released in accordance with G.S. 122C-276.1(d).  If the court finds that the respondent has not met his burden of proof, then the court shall order that inpatient commitment continue at a 24-hour facility designated pursuant to G.S. 122C-252 for a period not to exceed 90 days. The court shall make a written record of the facts that support its findings."
Section 6.  G.S. 122C-271(c) reads as rewritten:
"(c)	If the respondent was found not guilty by reason of insanity and has been held in a 24-hour facility pending the court hearing held pursuant to G.S. 122C-268.1, the court may make one of the following dispositions:
(1)	If the court finds that the respondent has not proved by a preponderance of the evidence that he no longer has a mental illness or that he is no longer dangerous to others, it shall order inpatient treatment at a 24-hour facility for a period not to exceed 90 days.
(2)	If the court finds that the respondent has proven by a preponderance of the evidence that he no longer has a mental illness or that he is no longer dangerous to others, the court shall order the respondent discharged and released; provided, however, that the court shall not discharge an individual who is no longer dangerous to others as a result of medication or hospitalization, if it can be determined within reasonable medical probability that without continued medication or supervised treatment the respondent will suffer disability or deterioration that would result in dangerousness as defined in G.S. 122C-3(11)b.  Such an individual may only be released in accordance with the provisions for conditional release in G.S. 122C-276.1 and shall remain under commitment for a period not to exceed 90 days."
Section 7.  G.S. 122C-276.1 reads as rewritten:
"§ 122C-276.1.  Inpatient commitment; rehearings for respondents who are insanity acquittees.
(a)	At least 15 days before the end of any inpatient commitment period or conditional release ordered pursuant to G.S. 122C-268.1, the clerk shall calendar the hearing and notify the parties as specified in G.S. 122C-264(d1), unless the hearing is waived by the respondent.
(b)	The proceedings of the rehearing shall be governed by the same procedures provided by G.S. 122C-268.1.
(c)	The respondent shall bear the burden to prove by a preponderance of the evidence that he (i) no longer has a mental illness as defined in G.S. 122C-3(21), or (ii) is no longer dangerous to others as defined in G.S. 122C-3(11)b. If the court finds that the respondent has not met his burden of proof, then the court shall order inpatient commitment be continued for a period not to exceed 180 days.  If the court finds that the respondent has met his burden of proof, then the court shall order the respondent discharged and released; provided, however, that the court shall not discharge an individual who, as a result of medication or hospitalization, is no longer dangerous to others, if it can be determined within reasonable medical probability that without continued medication or supervised treatment the respondent will suffer disability or deterioration that would result in dangerousness as defined in G.S. 122C-3(11)b.  Such an individual may only be conditionally released in accordance with subsections (d) through (f) of this section.  The court shall make a written record of the facts that support its findings.
(d)	If the court finds that the respondent meets the criteria for discharge by proving by a preponderance of the evidence that he or she is no longer dangerous to others as defined in G.S. 122C-3(11)b., but also finds within a reasonable medical probability that, without continued medication or supervised treatment, the respondent will suffer disability or deterioration that would result in dangerousness as defined in G.S. 122C-3(11)b., the court shall order the respondent conditionally released in accordance with this section.  A conditional release order is a commitment order and is subject to the same limitations on periods of time as commitment orders.  Before ordering any conditional release, the court shall make findings of fact that the respondent's mental illness can be controlled with proper care, medication, supervision, or treatment if he or she is conditionally released.
(e)	If the court orders conditional release of the respondent in accordance with subsection (d) of this section, the court shall, in addition to any other conditions of release, order the respondent to report to an area authority or other facility designated by the Secretary for the treatment and supervision of individuals conditionally released under this section.  As a condition of release, the court also shall order the respondent to continue to receive periodic psychiatric or psychological treatment, as prescribed and administered by the designated area authority or facility, and to take any medication prescribed as a part of that treatment.  The area authority or other facility designated to treat and supervise the respondent shall monitor and document the respondent's compliance with prescribed treatment.
(f)	In order to ensure the safety and welfare of the citizenry of the State and a respondent who is to be conditionally released, the court may permit the facility where the respondent has been committed, or other 24-hour facility designated by the Secretary, to keep the respondent in custody for a period of time not to exceed 30 days in order to permit sufficient time for the attending physician of the facility to prepare recommendations to the court for a suitable community-based treatment program for the respondent.  The attending physician shall plan jointly with the area authority or other facility designated to supervise the respondent's treatment.  The treatment program shall be specifically designed to facilitate the return of the respondent to the community as a functioning, self-supporting citizen, and may include appropriate supportive provisions for assistance in establishing residency, securing gainful employment, undergoing needed vocational rehabilitation, receiving marital and family counseling, and such other outpatient services that appear beneficial.
(g)	If a respondent who is to be conditionally released will be residing in a county outside the judicial district of the district court ordering conditional release, the court shall transfer venue of the case to the district court of the other county and send a copy of all of the court's records of the proceedings to the other court.
	(h)	At least 15 days before the end of any commitment or conditional release period ordered pursuant to subsections (c) or (d) of this section and annually thereafter, the clerk shall calendar the hearing and notify the parties as specified in G.S. 122C-264(d1). The procedures and standards for the rehearing are the same as under this section. No third or subsequent inpatient recommitment order or conditional release order shall be for a period longer than one year."
Section 8.  Chapter 122C of the General Statutes is amended by adding a new section to read:
"§ 122C-278.  Revocation of conditional release.
(a)	The court may order revocation of a conditional release ordered pursuant to G.S. 122C-276.1 if the court finds after hearing evidence that:
(1)	The conditions of release have not been fulfilled;
(2)	The respondent is dangerous to others; or
(3)	Based on the respondent's behavior or condition during the period of conditional release and the respondent's past mental health history, there is a substantial likelihood that the respondent suffers from a mental illness that causes him or her to present:
a.	Substantial risk of serious bodily harm to the respondent or others;
b.	An imminent threat of physical injury to the respondent or others; or
c.	A substantial risk of extreme destruction of property.
(b)	The court may retain jurisdiction to revoke a conditional release for as long as continued involuntary treatment is necessary to prevent reoccurrence of the respondent's mental illness and dangerousness.
(c)	When the court finds that the conditional release should be revoked, the court shall immediately order the respondent recommited to the custody of the Department, subject to discharge or release only in accordance with the procedures provided in G.S. 122C-276.1."
Section 9.  This act becomes effective December 1, 1997, and applies to offenses committed on or after that date.