CHAPTER 328

FORMERLY

HOUSE BILL NO. 567

AS AMENDED BY HOUSE AMENDMENTS NOS. 1 AND 2

AN ACT TO AMEND CHAPTER 4 AND CHAPTER 39, TITLE 11 OF THE DELAWARE CODE RELATING TO CRIMES AND CRIMINAL PROCEDURE; AND PROVIDING FOR CERTAIN VERDICTS IN CRIMINAL CASES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each House thereof concurring therein):

Section 1. Amend §401, Chapter 4, Title 11 of the Delaware Code by striking said section in its entirety, and substituting in lieu thereof the following'

"§401. Insanity; Mental Illness; Defenses and Verdicts

(a) In any prosecution for an offense, it is an affirmative defense that, at the time of the conduct charged, as a result of mental illness or mental defect, the accused lacked substantial capacity to appreciate the wrongfulness of his conduct. If the defendent prevails in establishing the affirmative defense provided in this subsection, the trier of fact shall return a verdict of "not guilty by reason of Insanity."

(b) Where the trier of facts determines that, at the time of the conduct charged, a defendant suffered from a psychiatric disorder which substantially disturbed such person's thinking, feeling, or behavior and/or that such psychiatric disorder left such person with insufficient willpower to choose whether he would do the act or refrain from doing it, although physically capable, the trier of fact shall return a verdict of "guilty, but mentally ill."

(c) It is shall not be a defense under this section if the alledged insanity or mental illness was proximately caused by the voluntary ingestion, inhalation or injection of intoxicated liquor, any drug or other mentally-debilitating substance, or any combination thereof, unless such substance was prescribed for the defendant by a licensed health care practioner and was used in accordance with the directions of such prescription. As used in this chapter, the terms "insanity" or "mental Illness" do not include an abnormality manifested only by repeated criminal or other non-social conduct."

Section 2. Amend Chapter 4, Part I, Title 11 of the Delaware Code by adding thereto a new section, designated as §407, which new section shall read as follows:

"§407. Guilty, But Mentally Ill

(a) Where a defendant's defense is based upon allegations which, if true, would be grounds for a verdict of "guilty, but mentally ill" or desires to enter a plea to that effect, no finding of "guilty, but mentally ill" shall be rendered until the trier of fact has examined all appropriate reports (including the pre-sentence investigation); has held a hearing on the sole issue of the defendant's mental Illness, at which either party may present evidence; and is satisfied that the defendant was in fact mentally ill at the time of the offense to which the plea is entered. Where the trier of fact, after such hearing, is not satisfied that the defendant was mentally Ill at the time of the offense, or determines that the facts do not support a "guilty but mentally Ill" plea, he shall strike such plea, or permit such plea to be withdrawn by the defendant. A defendant whose plea is not accepted by the trier of fact shall be entitled to a Jury trial, except that if a defendant subsequently waives his right to a Jury trial, the Judge who presided at the hearing on mental illness shall not preside at the trial.

(b) In a trial under this section a defendant found guilty but mentally ill, or whose plea to that effect is accepted, may have any sentence imposed on him which may lawfully be imposed upon any defendant for the same offense. Such defendant shall be committed into the custody of the Department of Correction, and shall undergo such further evaluation and be given such Immediate and temporary treatment as is psychiatrically indicated. The Commissioner shall retain exclusive jurisdiction over such person in all matters relating to security. The Commissioner shall thereupon confine such person in the Delaware State Hospital. Although such person shall remain under the jurisdiction of the Department of Correction, decisions directly related to treatment for his mental Illness shall be the Joint responsibility of the Director of Mental Health and those persons at the Delaware State Hospital who are directly responsible for such treatment. The Delaware State Hospital, or any other residential treatment facility to which the defendant is committed by the Commissioner, shall have the authority to discharge the defendant from the facility and return the defendant to the physical custody of the Commissioner whenever the facility believes that such a discharge is in the best interests of the defendant. The offender may, by written statement, refuse to take any drugs which are prescribed for treatment of his mental illness; except when such a refusal will endanger the life of the offender, or the lives or property of other persons with whom the offender has contact.

(c) When the State Hospital or Other treating facility designated by the Commissioner discharges an offender prior to the expiration of such person's sentenci, the treating facility shall transmit to the Commissioner and to the parole board a report on the condition of the offender which contains the clinical facts; the diagnosis; the course of treatment, and prognosis for the remission of symptoms; the potential for the recidivism, and for danger to himself or the'public; and recommendations for future treatment. Where an offender under this section is sentenced to the the State Hospital or other facility, he shall not be eligible for any privileges not permitted in writing by the Commissioner (including escorted or unescorted on-grounds or off-grounds privileges) until the offender has become eligible for parole. Where the Court finds that the offender, before completing his sentence no longer needs nor could benefit from treatment for his mental illness, the offender shall be remanded to the Department of Correction. The offender shall have credited toward his sentence the time served at the State Hospital or other facility.

§408. Probation and Parole

(a) A person who has been adjudged "guilty, but mentally ill" and who during his incarceration Is discharged from treatment may be placed on pre-release or parole status under the same terms and laws applicable to any other offender. Psychological or psychiatric counseling and treatment may be required as a condition for such status. Failure to continue treatment, except by agreement of the Department of Correction, shall be a basis for terminating pre-release status or instituting parole violation hearings.

(b) If the report of the State Hospital or other facility recommends parole, the paroling authority shall within forty-five days or at the expiration of the offender's minimum sentence, whichever is later, meet to consider the offender's request for parole. If the report does not recommend parole, but other laws or administrative rules of the Department permit parole, the paroling authority may meet to consider a parole request. When the paroling authority considers the offender for parole, it shall consult with the State Hospital or other facility at which the offender had been treated, or from which the offender has been discharged.

(c) If an offender who is been found "guilty, but mentally ill" is placed on probation, the Court, upon recommendation by the Attorney General, shall make treatment a condition of probation. Reports as specified by the trial Judge shall be filed with the probation officer, and the sentencing court. Treatment shall be provided by an agency of the State or, with the approval of the sentencing court and at individual pense, private agencies, private physicians or other mental health personnel."

Section 3. Amend Chapter 39, Part II, Title 11 of the Delaware Code by adding thereto a new §3904, which new section shall read as follows:

"§3904. Instructions' Sentencing

At the conclusion of a trial under this Title, where warranted by the evidence, the charge to the jury shall contain instructions that shall consider separately the issues of guilt and the presence or absence of insanity, and shall also contain instructions as to the verdicts of 'guilty;"guilty, but mentally ill'; 'not guilty by reason of insanity'; and 'not guilty' with regard to the offense or offenses charged and, as required by law, any lesser included offenses."

Section 4. In the event the provisions of this Act conflict with the provisions of any other Act or statute relating to admissions to the Delaware State Hospital or to the institutional treatment of mental illness, this Act shall take precedence.

Approved July 2, 1982.