SB 132: Insanity and Mental Incapacity; hearing before a court orders an evaluation of the mental competency of an accused person to stand trial; require

Senate Bill 132

By: Senators Strickland of the 42nd, Kirkpatrick of the 32nd, Watson of the 1st, Jackson of the 41st and Anderson of the 43rd

AS PASSED

A BILL TO BE ENTITLED

AN ACT

To amend Part 2 of Article 6 of Chapter 7 of Title 17 of the Official Code of Georgia Annotated, relating to insanity and mental incapacity, so as to require a hearing before a court orders an evaluation of the mental competency of an accused person to stand trial; to provide for the release of reports of such evaluations; to establish different procedures in cases where the subject has been accused only of one or more nonviolent misdemeanor offenses, including automatic dismissal in some cases, subject to exceptions; to provide for such different procedures and such exceptions; to amend Article 2 of Chapter 1 of Title 37 of the Official Code of Georgia Annotated, relating to powers and duties of the Department of Behavioral Health and Developmental Disabilities, so as to provide for the receipt of conviction data; to provide for related matters; to provide for an effective date and applicability; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Part 2 of Article 6 of Chapter 7 of Title 17 of the Official Code of Georgia Annotated, relating to insanity and mental incapacity, is amended by revising Code Section 17-7-129, relating to mental capacity to stand trial and release of competency evaluation to prosecuting attorney, as follows:

"17-7-129.

(a) When information becomes known to the court sufficient to raise a bona fide doubt regarding the accused's mental competency to stand trial, the court has a duty, sua sponte, to inquire into the accused's mental competency to stand trial; provided, however, that if such information is made known to the court by the accused or the attorney for the accused, a hearing as provided for in paragraph (1) of subsection (b) of Code Section 17-7-130 shall be required. The court may order the Department of Behavioral Health and Developmental Disabilities to conduct an evaluation of the accused's competency. If the court determines that it is necessary to have a trial on the issue of competency, the court shall follow the procedures set forth in Code Section 17-7-130. The court's order shall set forth those facts which give rise to its bona fide doubt as to the accused's mental competency to stand trial. The evaluation of the Department of Behavioral Health and Developmental Disabilities shall be submitted to the court, and the court shall submit such evaluation to the attorney for the accused or, if pro se, to the accused, but otherwise, the report shall remain under seal.

(b) If the court orders a competency evaluation and the accused serves notice of a special plea of mental incompetency to stand trial or raises the issue of insanity and the court orders a competency evaluation, the court shall release the competency evaluation to the attorney for the accused or, if pro se, to the accused, and to the prosecuting attorney. Such; provided, however, that such evaluation shall not be released to any other person absent a court order.

(c) If the court determines that it is necessary to have a trial on the issue of competency, the court shall follow the procedures set forth in Code Section 17-7-130."

SECTION 2.

Said part is further amended in Code Section 17-7-130, relating to proceedings upon a plea of mental incompetency to stand trial, by revising subsections (b) and (c) as follows: "(b)(1)(A) If an accused files a motion requesting a competency evaluation, the court shall hold a hearing to determine if there is sufficient information to raise a bona fide doubt regarding the accused's current mental competency to stand trial. The prosecuting attorney may submit information regarding the accused's current mental competency to stand trial. Any evidence presented by the accused, may, upon request by the accused or the attorney for the accused, be ex parte and any evidence submitted by either party shall be filed under seal. The court may, upon cause shown at such hearing, order the department to conduct an evaluation by a physician or licensed psychologist to determine the accused's mental competency to stand trial and, if such.

(B) If the physician or licensed psychologist provided for in subparagraph (A) of this paragraph determines the accused to be mentally incompetent to stand trial, the Department of Behavioral Health and Developmental Disabilities department, in its sole discretion, shall determine an appropriate treatment with the capability to restore the accused to competency, which may include inpatient treatment in a secure facility designated by the department or a jail-based competency restoration program. If, and, if the accused is a child, the department shall be authorized to place such child in a secure facility designated by the department.

(C) The department's evaluation made pursuant to subparagraph (A) of this paragraph shall be submitted to the court, and the court shall submit such evaluation to the attorney for the accused or, if pro se, to the accused, but otherwise,; provided, however, that the evaluation shall be under seal and shall not be released to any other person absent a court order.

(D) As used in this paragraph, the term 'jail-based competency restoration' means clinical services for competency restoration that are provided in jails to persons found incompetent to stand trial pursuant to mutual agreements entered into between sheriffs and the department to offer such clinical services in jails.

(2) If the accused files a special plea alleging that the accused is mentally incompetent to stand trial, it shall be the duty of the court to have a bench trial, unless the state or the accused demands a special jury trial, to determine the accused's competency to stand trial. Once a special plea has been filed, the court shall submit the department's evaluation to the prosecuting attorney.

(c)(1) If the court finds the accused is mentally incompetent to stand trial, the court may order a department physician or licensed psychologist to evaluate and diagnose the accused as to whether there is a substantial probability that the accused will attain mental competency to stand trial in the foreseeable future. The court shall retain jurisdiction over the accused and shall transfer the accused to the physical custody of the department. At its discretion, the court may allow the evaluation to be performed on the accused as an outpatient if the accused is charged with a nonviolent offense.

(2) The Such evaluation provided for in paragraph (1) of this subsection shall be performed:

(A) Except as provided in subparagraph (B) of this paragraph, within 90 days after the department has received actual custody of an accused or, in the case of an outpatient, a court order requiring evaluation of an accused. If the accused is a child, the department shall be authorized to place such child in a secure facility designated by the department; or

(B) If the accused is charged only with one or more nonviolent misdemeanor offenses, within 45 days after the department has received actual custody of an accused or, in the case of an outpatient, a court order requiring evaluation of an accused; provided, however, that the provisions of this subparagraph shall not apply to a misdemeanor charge of driving under the influence of drugs or alcohol in violation of Code Section 40-6-391 or a misdemeanor charge involving an act of domestic violence. (3) If the evaluation provided for in paragraph (1) of this subsection shows: (1)(A) That the accused is mentally competent to stand trial, the department shall immediately report that determination and the reasons therefor to the court, and the court shall submit such determination to the attorney for the accused or, if pro se, to the accused and to the prosecuting attorney. The accused shall be returned to the court as provided for in subsection (d) of this Code section;

(2)(B) That the accused is mentally incompetent to stand trial and that there is not a substantial probability that the accused will attain competency in the foreseeable future, the court shall follow the procedures set forth in subsection (e) of this Code section for civil commitment or release; or

(3)(C) That the accused is mentally incompetent to stand trial but there is a substantial probability that the accused will attain competency in the foreseeable future:

(i) Except as provided in division (ii) of this subparagraph, by the end of the 90 day period provided for in subparagraph (A) of paragraph (2) of this subsection, or at any prior time, the department shall report that finding and the reasons therefor to the court and shall retain custody over the accused for the purpose of continued treatment for an additional period not to exceed nine months; provided, however, that if the accused is charged with a misdemeanor offense or a nonviolent offense, the court shall retain jurisdiction over the accused but may, in its discretion, allow continued treatment to be done on an outpatient basis by the department. The and the department shall monitor the accused's outpatient treatment for the additional period not to exceed nine months; or

(ii) If the accused is charged only with one or more nonviolent misdemeanor offenses, by the end of the 45 day period provided for in subparagraph (B) of paragraph (2) of this subsection, or at any prior time, the department shall report that finding and the reasons therefor to the court and shall retain custody over the accused for the purpose of continued treatment for an additional period not to exceed 120 days; provided, however, that the court shall retain jurisdiction over the accused but may, in its discretion, allow continued treatment to be done on an outpatient basis by the department and the department shall monitor the accused's outpatient treatment for the additional period not to exceed 120 days.

(D)(i) If, by the end of the nine-month period provided for in division (i) of subparagraph (C) of this paragraph or at any prior time the accused's condition warrants, the accused is still determined by the department physician or licensed psychologist to be mentally incompetent to stand trial, irrespective of the probability of recovery in the foreseeable future, the department shall report that finding and the reasons therefor to the court. The court shall then follow the procedures in subsection (e) of this Code section for civil commitment or release.

(ii) If, by the end of the 120 day period provided for in division (ii) of subparagraph (C) of this paragraph or at any prior time the accused's condition warrants, the accused is still determined by the department physician or licensed psychologist to be mentally incompetent to stand trial, irrespective of the probability of recovery in the foreseeable future, the charges against the accused shall be dismissed as a matter of law by the court and the accused shall be referred to a community service board unless otherwise ordered by the court for cause shown upon the hearing of a motion by the prosecuting attorney."

SECTION 3.

Article 2 of Chapter 1 of Title 37 of the Official Code of Georgia Annotated, relating to powers and duties of the Department of Behavioral Health and Developmental Disabilities, is amended by revising Code Section 37-1-28, relating to conviction data, as follows:

"37-1-28.

(a) As used in this Code section, the term 'conviction data' means a record of a finding or verdict of guilty or a plea of guilty or a plea of nolo contendere with regard to any crime, regardless of whether an appeal of the conviction has been sought.

(b) The department may receive from any law enforcement agency conviction data that is relevant to a person whom the department or its contractors is considering as a final selectee for employment in a position the duties of which involve direct care, treatment, custodial responsibilities, or any combination thereof for its clients. The department may also receive conviction data which is relevant to a person whom the department or its contractors is considering as a final selectee for employment in a position if, in the judgment of the employer, a final employment decision regarding the selectee can only be made by a review of conviction data in relation to the particular duties of the position and the security and safety of clients, the general public, or other employees.

(c) The department may receive from any law enforcement agency conviction data which is relevant to a person whom the department or its contractors is considering as a final selectee for employment in a position if, in the judgment of the employer, a final employment decision regarding the selectee can only be made by a review of conviction data in relation to the particular duties of the position and the security and safety of clients, the general public, or other employees.

(c)(d) The department shall establish a uniform method of obtaining conviction data under subsection (a) of this Code section which shall be applicable to the department and its contractors. Such uniform method shall require the submission to the Georgia Crime Information Center of fingerprints and the records search fee in accordance with Code Section 35-3-35. Upon receipt thereof, the Georgia Crime Information Center shall promptly transmit fingerprints to the Federal Bureau of Investigation for a search of bureau records and an appropriate report and shall promptly conduct a search of its own records and records to which it has access. After receiving the fingerprints and fee, the Georgia Crime Information Center shall notify the department in writing of any derogatory finding, including, but not limited to, any conviction data regarding the fingerprint records check or if there is no such finding.

(d)(e) All conviction data received shall be for the exclusive purpose of making employment decisions or decisions concerning individuals in the care of the department and shall be privileged and shall not be released or otherwise disclosed to any other person or agency. Immediately following the employment decisions or upon receipt of the conviction data, all such conviction data collected by the department or its agent shall be maintained by the department or agent pursuant to laws regarding and the rules or regulations of the Federal Bureau of Investigation and the Georgia Crime Information Center, as is applicable. Penalties for the unauthorized release or disclosure of any conviction data shall be as prescribed pursuant to laws regarding and rules or regulations of the Federal Bureau of Investigation and the Georgia Crime Information Center, as is applicable.

(e)(f) The department may promulgate written rules and regulations to implement the provisions of this Code section.

(f)(g) The department shall be authorized to conduct a name or descriptor based check of any person's criminal history information, including arrest and conviction data, and other information from the Georgia Crime Information Center regarding any adult person who provides care or is in contact with persons under the care of the department without the consent of such person and without fingerprint comparison to the fullest extent permissible by federal and state law.

(g)(h) If the department is participating in the program described in subparagraph (a)(1)(F) of Code Section 35-3-33, the Georgia Bureau of Investigation and the Federal Bureau of Investigation shall be authorized to retain fingerprints obtained pursuant to this Code section for such program and the department shall notify the individual whose fingerprints were taken of the parameters of such retention."

SECTION 4.

This Act shall become effective on July 1, 2025, and shall apply to any motions made or hearings or trials commenced on or after such date.

SECTION 5.

All laws and parts of laws in conflict with this Act are repealed.