SENATE BILL No. 704

October 11, 2001, Introduced by Senators VAN REGENMORTER, DINGELL and MC COTTER and referred to the Committee on Judiciary.

A bill to amend 1927 PA 175, entitled

"The code of criminal procedure,"

by amending section 36 of chapter VIII (MCL 768.36).

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

1 CHAPTER VIII

2 Sec. 36. (1) If the defendant asserts a defense of insanity

3 in compliance with section 20a OF THIS CHAPTER, the defendant may

4 be found "guilty but mentally ill" if, after trial, the trier of

5 fact finds all of the following: beyond a reasonable doubt:

6 (a) That the defendant is guilty of an offense, BEYOND A

7 REASONABLE DOUBT.

8 (b) That the defendant was mentally ill at the time of the

9 commission of that offense.

10 (c) That the defendant was not legally insane at the time of

11 the commission of that offense.

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1 (B) THAT THE DEFENDANT HAS ESTABLISHED HIS OR HER MENTAL

2 RETARDATION OR MENTAL ILLNESS AT THE TIME OF THE COMMISSION OF

3 THE OFFENSE BY A PREPONDERANCE OF THE EVIDENCE BUT HAS NOT ESTAB-

4 LISHED BY A PREPONDERANCE OF THE EVIDENCE THAT HE OR SHE LACKED

5 THE SUBSTANTIAL CAPACITY EITHER TO APPRECIATE THE NATURE AND

6 QUALITY OR THE WRONGFULNESS OF HIS OR HER CONDUCT OR TO CONFORM

7 HIS OR HER CONDUCT TO THE REQUIREMENTS OF THE LAW.

8 (2) If the defendant asserts a defense of insanity in com-

9 pliance with section 20a OF THIS CHAPTER and the defendant waives

10 his OR HER right to trial, by jury or by judge, the trial judge,

11 with the approval of the prosecuting attorney, may accept a plea

12 of guilty but mentally ill in lieu of a plea of guilty or a plea

13 of nolo contendere. The judge may SHALL not accept a plea of

14 guilty but mentally ill until, with the defendant's consent, he

15 THE JUDGE has examined the report or reports prepared pursuant

16 to IN COMPLIANCE WITH section 20a OF THIS CHAPTER, THE JUDGE has

17 held a hearing on the issue of the defendant's mental illness OR

18 MENTAL RETARDATION at which either party may present evidence,

19 and THE JUDGE is satisfied that the defendant HAS PROVEN BY A

20 PREPONDERANCE OF THE EVIDENCE THAT THE DEFENDANT was MENTALLY

21 RETARDED OR mentally ill at the time of the offense to which the

22 plea is entered. The reports shall be made a part of the record

23 of the case.

24 (3) If a defendant is found guilty but mentally ill or

25 enters a plea to that effect which is accepted by the court, the

26 court shall impose any sentence which THAT could be imposed

27 pursuant to BY law upon a defendant who is convicted of the

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1 same offense. If the defendant is committed to the custody of

2 the department of corrections, he THE DEFENDANT shall undergo

3 further evaluation and be given such treatment as is psychiatri-

4 cally indicated for his OR HER mental illness or retardation.

5 Treatment may be provided by the department of corrections or by

6 the department of mental COMMUNITY health after his transfer

7 pursuant to sections 1000 or 1002 of Act No. 258 of the Public

8 Acts of 1974, being sections 330.2000 or 330.2002 of the Michigan

9 Compiled Laws AS PROVIDED BY LAW. Sections 1004 and 1006 of

10 Act No. 258 of the Public Acts of 1974 shall THE MENTAL HEALTH

11 CODE, 1974 PA 258, MCL 330.2004 AND 330.2006, apply to the dis-

12 charge of such a THE defendant from a facility of the depart-

13 ment of mental COMMUNITY health to which he THE DEFENDANT has

14 been admitted and shall apply to the return of such a THE

15 defendant to the department of corrections for the balance of the

16 defendant's sentence. When a treating facility designated by

17 either the department of corrections or the department of

18 mental COMMUNITY health discharges such a THE defendant

19 prior to BEFORE the expiration of his THE DEFENDANT'S sen-

20 tence, that treating facility shall transmit to the parole board

21 a report on the condition of the defendant which THAT contains

22 the clinical facts, the diagnosis, the course of treatment, and

23 the prognosis for the remission of symptoms, the potential for

24 recidivism, and for the danger OF THE DEFENDANT to himself OR

25 HERSELF or TO the public, and recommendations for future

26 treatment. In the event that IF the parole board pursuant to

27 law or administrative rules should consider him CONSIDERS THE

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1 DEFENDANT for parole, the board shall consult with the treating

2 facility at which the defendant is being treated or from which

3 he THE DEFENDANT has been discharged and a comparable report on

4 the condition of the defendant shall be filed with the board. If

5 he THE DEFENDANT is placed on parole, by the parole board,

6 his THE DEFENDANT'S treatment shall, upon recommendation of the

7 treating facility, be made a condition of parole. , and failure

8 FAILURE to continue treatment except by agreement with the desig-

9 nated facility and parole board shall be a basis IS GROUNDS for

10 the institution of parole violation hearings REVOCATION OF

11 PAROLE.

12 (4) If a defendant who is found guilty but mentally ill is

13 placed on probation under the jurisdiction of the sentencing

14 court pursuant to AS PROVIDED BY law, the trial judge, upon

15 recommendation of the center for forensic psychiatry, shall make

16 treatment a condition of probation. Reports as specified by the

17 trial judge shall be filed with the probation officer and the

18 sentencing court. Failure to continue treatment, except by

19 agreement with the treating agency and the sentencing court,

20 shall be a basis IS GROUNDS for the institution REVOCATION of

21 probation. violation hearings. The period of probation shall

22 not be for less than 5 years and shall not be shortened without

23 receipt and consideration of a forensic psychiatric report by the

24 sentencing court. Treatment shall be provided by an agency of

25 the department of mental COMMUNITY health , or, with the

26 approval of the sentencing court and at individual expense, by

27 private agencies, private physicians, or other mental health

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1 personnel. A psychiatric report shall be filed with the

2 probation officer and the sentencing court every 3 months during

3 the period of probation. If a motion on a petition to discon-

4 tinue probation is made by the defendant, the probation officer

5 shall request a report as specified from the center for forensic

6 psychiatry or any other facility certified by department of

7 mental COMMUNITY health for the performance of forensic psychi-

8 atric evaluation.

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