If a person is found not guilty by reason of insanity (NGRI) in South Carolina, they are not released. They are committed to a state hospital for an initial period of 120 days, and then they are evaluated at regular intervals to determine whether they are a danger to self or others. If they are dangerous, they remain in the hospital for a period of time not to exceed the maximum sentence they could have received for the crime that they were charged with.
If a person is found guilty but mentally ill (GBMI), they are sent to prison. They are “flagged” as mentally ill, but they are sent to prison. In the prison there is a mental ward, where inmates can be kept for 45 days before they are released to the general prison population.
In South Carolina, the guilty but mentally ill statute is designed to prevent juries from ever finding a defendant NGRI. The Court and the attorneys are not allowed to tell the jury what will happen if they find a defendant NGRI or GBMI, and they are left to assume that NGRI means the defendant is set free and that GBMI means they go to a hospital.
Even worse, the language of the GBMI statute says that GBMI is an “affirmative defense,” and that the defendant has the burden of proving it by preponderance of the evidence. If the defendant proves that it is more likely than not that the defendant was mentally ill and could not conform his actions to the law, then the jury must find the defendant GBMI. ??? The statute mandates that the judge charge the jury on GBMI any time that insanity is raised. Except, it is not a defense. It is a guilty verdict.
The only reason that this language is in the statute is to confuse the jury so that they will always find a person GBMI and not NGRI. It is wrong. It is a lie. We ask the jury to give us a verdict that speaks the truth, and then we lie to the jury about what the law is to ensure that mentally ill defendants go to prison, and to keep the truth from them. This is a joke, and there is no justice in South Carolina for the mentally ill.
We just finished a week long trial where our doctor and the state’s doctor testified that our client was mentally ill and that he did not understand the difference between right and wrong (the test for not guilty by reason of insanity). I believe that the jury understood that our client was mentally ill and that he needed help and not prison. During deliberations, they came back with a question – “if we find the defendant guilty but mentally ill, where will he be housed?” And the Court had to tell them, I cannot answer that question.
I will say that, regarding the judge and the prosecutor in our case, our client received as fair a trial as he possibly could under the circumstances. This trial was an example of how a prosecutor can be ethical, not cheat, and still win a conviction. And I know that he received the best defense that he possibly could under these circumstances. The problem here is that the system is designed so that there will never be a jury verdict of not guilty by reason of insanity. Why do we lie to juries? If the only option is to put a person in prison, why don’t we just do away with the notion of NGRI, and tell the jury that their only option is guilty or not guilty?
