H 4642 — Fitness to Stand Trial

PK2025-2026 ÕH/\,žŸ‰Bill ì&4642 Text of Previous Version (Dec.

17, 2025) - South Carolina Legislature Online South Carolina General Assembly126th Session, 2025-2026Bill 4642Indicates Matter StrickenIndicates New Matter(Text matches printed bills.

Document has been reformatted to meet World Wide Web specifications.)                 A bill   TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY ADDING SECTION 44-23-470 SO AS TO CREATE ADDITIONAL JUDICIAL PROCEDURES FOR CERTAIN DEFENDANTS WHOSE FITNESS TO STAND TRIAL IS IN ISSUE;

AND BY AMENDING SECTION 44-23-430, RELATING TO FITNESS TO STAND TRIAL HEARINGS, SO AS TO MAKE CONFORMING CHANGES.

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

  SECTION 1.  Article 5, Chapter 23, Title 44 of the S.C.

Code is amended by adding:

      Section 44-23-470.

(A) Upon a finding that a defendant who is charged with an offense under Section 16-1-60 is incompetent to stand trial pursuant to Section 44-23-430(A)(2) or (3), on the motion of the solicitor or on its own motion, the court may retain jurisdiction over the defendant, if at a hearing held within thirty days of the motion, the court finds by clear and convincing evidence that:

       (1) the defendant is:

           (a) a person with a mental illness, as the term is defined in Section 44-23-10, subject to court order under Section 44-17-580(A);

           (b) a person with an intellectual disability or a person with a related disability, as those terms are defined in Section 44-20-30, subject to court order under Section 44-20-450;

or            (c) a person with a neurocognitive disorder as defined in the most current publication of the American Psychiatric Association entitled "The Diagnostic and Statistical Manual of Mental Disorders" found to be in need of placement in a facility or service program of the Department of Behavioral Health and Developmental Disabilities;

       (2) the defendant committed an offense listed in Section 16-1-60;

and        (3) the acts constituting the offense or offenses charged and any history of the defendant indicate a likelihood of serious harm to himself or others.

    (B)(1) In making a determination under subsection (A) as to whether to retain jurisdiction over the defendant, the court:

           (a) shall appoint counsel to represent the defendant if counsel has not been retained;

           (b) may admit hearsay or affidavit evidence on secondary matters such as testimony to establish the chain of custody of physical evidence, laboratory reports, authentication of transcripts taken by official reporters, court and business records, and public documents;

           (c) shall consider all relevant evidence including, but not limited to, any relevant psychiatric, psychological, or medical testimony or reports, the acts constituting the offense or offenses charged, and any history of the defendant that is relevant to the defendant's ability to conform to the law;

and            (d) may appoint one or more examiners with licensure appropriate for the defendant's condition to examine the defendant and report to the court their findings as to the defendant's condition and need for treatment.

       (2)(a) Any examination of the defendant's condition undertaken pursuant to item (1)(d) must be made at a suitable place not likely to have a harmful effect upon the defendant's health.

           (b) On a report of a designated examiner of refusal to submit to examination, the court shall order the defendant to submit to examination.

If the defendant refuses to obey the court's order the court may require a state or local law enforcement officer to take the defendant into custody for a period not exceeding twenty-four hours during which time the defendant must be examined by the designated examiner.

The defendant's attorney must be notified before the defendant is taken into custody.

           (c) An adequate record of the examination must be made and offered to the defendant's counsel.

The defendant and the solicitor must be given the opportunity to request an additional examination by an independent designated examiner.

After receiving the reports of the designated examiners, the court may appoint additional examiners as it deems necessary.

    (C) If the court conducts a hearing pursuant to subsection (A) and if the court does not make the relevant findings by clear and convincing evidence, the court shall issue an order declining to retain jurisdiction over the defendant.

If the court declines jurisdiction based on the provisions of subsection (A)(2) or (3), the solicitor responsible for the criminal prosecution of the defendant shall initiate judicial admission proceedings pursuant to Sections 44-17-510 through 44-17-610 or Section 44-20-450 within fourteen days, excluding Saturdays, Sundays, and holidays, of entry of the court's order declining jurisdiction.

    (D)(1)(a) If the court conducts a hearing pursuant to subsection (A) and retains jurisdiction, the court shall commit the defendant, if determined to be a person with a mental illness, to a state hospital under the jurisdiction of the Office of Mental Health for a period not to exceed one hundred twenty days.

During that time, an examination must be made of the defendant to determine the need for hospitalization of the defendant pursuant to the standards in Section 44-17-580.

           (b) A report of the findings of the examination undertaken pursuant to subitem (a) must be made to the chief administrative judge of the circuit in which the hearing was held, the solicitor, the defendant, and the defendant's attorney.

           (c) Within fifteen days after receipt of this report by the court, the chief administrative judge of the circuit in which the hearing was held must hold a hearing to decide whether the defendant should be hospitalized pursuant to the standards of Section 44-17-580.

If the chief administrative judge finds the defendant not to be in need of hospitalization, the judge may order the defendant released upon such terms and conditions, if any, as the judge considers appropriate for the safety of the community and the well-being of the defendant.

If the chief administrative judge finds the defendant is in need of hospitalization, the judge must order the defendant committed to a state hospital under the jurisdiction of the Office of Mental Health.

           (d) If officials of a state hospital under the jurisdiction of the Office of Mental Health later determine that a defendant committed for services is no longer in need of hospitalization, the officials must notify the chief administrative judge, the solicitor, the defendant, and the defendant's attorney.

Within twenty-one days after the receipt of this notice, the chief administrative judge, upon notice to all parties, must hold a hearing to determine whether the defendant is in need of continued hospitalization pursuant to the standards of Section 44-17-580.

If the finding of the court is that the defendant is in need of continued hospitalization, the court must order his continued confinement.

If the court's finding is that the defendant is not in need of continued hospitalization, it may order the defendant released upon such terms and conditions, if any, as the chief administrative judge considers appropriate for the safety of the community and the well-being of the defendant.

           (e) In determining the necessity and terms of the defendant's release, the court shall consider the extent to which the defendant is a danger to himself and to others, the need for security, and the type of crime involved and shall order the least restrictive alternative that is consistent with public safety and the welfare of the defendant.