HOUSE BILL No. 4935


     September 30, 1999, Introduced by Reps. Raczkowski, Julian and Scranton and referred
to the Committee on Criminal Law and Corrections.


        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, the defendant may be found

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

 5    finds  all of the following beyond a reasonable doubt:
              THAT THE

 6    DEFENDANT HAS ESTABLISHED HIS OR HER MENTAL ILLNESS BY A PREPON-

 7    DERANCE OF THE EVIDENCE BUT HAS NOT ESTABLISHED BY A PREPONDER-

 8    ANCE OF THE EVIDENCE THAT HE OR SHE LACKED THE SUBSTANTIAL CAPAC-

 9    ITY EITHER TO APPRECIATE THE NATURE AND QUALITY OR THE

10    WRONGFULNESS OF HIS OR HER CONDUCT OR TO CONFORM HIS OR HER

11    CONDUCT TO THE REQUIREMENTS OF THE LAW.


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 1          (a) That the defendant is guilty of an offense.

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

 3     commission of that offense.

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

 5     the commission of that offense. 

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

 7    pliance with section 20a and the defendant waives his OR HER

 8    right to trial, by jury or by judge, the trial judge, with the

 9    approval of the prosecuting attorney, may accept a plea of guilty

10    but mentally ill in lieu of a plea of guilty or a plea of nolo

11    contendere.  The judge  may  SHALL not accept a
             plea of guilty

12    but mentally ill until, with the defendant's consent,  he
              THE

13    JUDGE has examined the report or reports prepared  pursuant
             to 

14    IN COMPLIANCE WITH section 20a, THE JUDGE has held a hearing on

15    the issue of the defendant's mental illness at which either party

16    may present evidence, and THE JUDGE is satisfied that the

17    defendant HAS PROVEN BY A PREPONDERANCE OF THE EVIDENCE THAT THE

18    DEFENDANT was mentally ill at the time of the offense to which

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

20    record of the case.

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

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

23    court shall impose any sentence  which  THAT could
             be imposed

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

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

26    the department of corrections,  he  THE DEFENDANT
             shall undergo

27    further evaluation and be given such treatment as is



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 1    psychiatrically indicated for his OR HER mental illness or

 2    retardation.  Treatment may be provided by the department of cor-

 3    rections or by the department of  mental  COMMUNITY
             health  after

 4     his transfer pursuant to sections 1000 or 1002 of Act No.
                       258 of

 5     the Public Acts of 1974, being sections 330.2000 or 330.2002
                       of

 6     the Michigan Compiled Laws  AS PROVIDED BY LAW. 
                       Sections 1004

 7    and 1006 of  Act No. 258 of the Public Acts of 1974 shall
              THE

 8    MENTAL HEALTH CODE, 1974 PA 258, MCL 330.2004 TO 330.2006, apply

 9    to the discharge of  such a  THE defendant from a
             facility of the

10    department of  mental  COMMUNITY health to which
              he  THE

11    DEFENDANT has been admitted and  shall apply  to
             the return of

12     such a  THE defendant to the department of
             corrections for the

13    balance of the defendant's sentence.  When a treating facility

14    designated by either the department of corrections or the depart-

15    ment of  mental  COMMUNITY health discharges
              such a  THE

16    defendant  prior to  BEFORE the expiration of
              his  THE

17    DEFENDANT'S sentence, that treating facility shall transmit to

18    the parole board a report on the condition of the defendant

19     which  THAT contains the clinical facts, the
             diagnosis, the

20    course of treatment,  and  the prognosis for the
             remission of

21    symptoms, the potential for recidivism,  and for 
             the danger OF

22    THE DEFENDANT to himself OR HERSELF or TO the public, and recom-

23    mendations for future treatment.  In the event that
              IF the

24    parole board  pursuant to law or administrative rules should
             con-

25     sider him  CONSIDERS THE DEFENDANT for parole, the
                       board shall

26    consult with the treating facility at which the defendant is

27    being treated or from which  he  THE DEFENDANT has
             been



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 1    discharged and a comparable report on the condition of the

 2    defendant shall be filed with the board.  If  he 
             THE DEFENDANT

 3    is placed on parole,  by the parole board, his  THE
             DEFENDANT'S

 4    treatment shall, upon recommendation of the treating facility, be

 5    made a condition of parole.  , and failure  FAILURE
             to continue

 6    treatment except by agreement with the designated facility and

 7    parole board  shall be a basis  IS GROUNDS for
              the institution

 8     of parole violation hearings  REVOCATION OF PAROLE.

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

10    placed on probation under the jurisdiction of the sentencing

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

12    recommendation of the center for forensic psychiatry, shall make

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

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

15    sentencing court.  Failure to continue treatment, except by

16    agreement with the treating agency and the sentencing court,

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

18    probation.  violation hearings.  The period of
             probation shall

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

20    receipt and consideration of a forensic psychiatric report by the

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

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

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

24    private agencies, private physicians, or other mental health

25    personnel.  A psychiatric report shall be filed with the proba-

26    tion officer and the sentencing court every 3 months during the

27    period of probation.  If a motion on a petition to discontinue



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 1    probation is made by the defendant, the probation officer shall

 2    request a report as specified from the center for forensic psy-

 3    chiatry or any other facility certified by department of 
             mental 

 4    COMMUNITY health for the performance of forensic psychiatric

 5    evaluation.














































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