House Introduced Bill 5298

HOUSE BILL No. 5298


     October 18, 2001, Introduced by Reps. Koetje, Raczkowski, Kooiman, Bishop, Ruth Johnson, Julian, Faunce, Shulman, Newell, Patterson, Vander
Roest, Kuipers and Drolet and referred to the Committee on Criminal Justice.


        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  THE defendant is guilty BEYOND A REASONABLE

 7
      DOUBT of an offense.

 8
           (b)  That the  THE defendant HAS PROVEN BY A PREPONDERANCE

 9
      OF THE EVIDENCE THAT HE OR SHE was mentally ill at the time of

10
      the commission of that offense.




   02935'01 *                                               DRM                                   2

 1
           (c)  That the  THE defendant  was not legally insane at the

 2
      time of the commission of that offense  HAS NOT ESTABLISHED BY A

 3
      PREPONDERANCE OF THE EVIDENCE THAT HE OR SHE LACKED THE SUBSTAN-

 4
      TIAL CAPACITY EITHER TO APPRECIATE THE NATURE AND QUALITY OR THE

 5
      WRONGFULNESS OF HIS OR HER CONDUCT OR TO CONFORM HIS OR HER CON-

 6
      DUCT TO THE REQUIREMENTS OF THE LAW.

 7
           (2) If the defendant asserts a defense of insanity in com-

 8
      pliance with section 20a OF THIS CHAPTER and the defendant waives

 9
      his OR HER right to trial, by jury or by judge, the trial judge,

10
      with the approval of the prosecuting attorney, may accept a plea

11
      of guilty but mentally ill in lieu of a plea of guilty or a plea

12
      of nolo contendere.  The judge  may  SHALL not accept a plea of

13
      guilty but mentally ill until, with the defendant's consent,  he

14
      THE JUDGE has examined the report or reports prepared  pursuant

15
      to  IN COMPLIANCE WITH section 20a OF THIS CHAPTER, THE JUDGE has

16
      held a hearing on the issue of the defendant's mental illness at

17
      which either party may present evidence, and THE JUDGE is satis-

18
      fied that the defendant HAS PROVEN BY A PREPONDERANCE OF THE EVI-

19
      DENCE THAT THE DEFENDANT was mentally ill at the time of the

20
      offense to which the plea is entered.  The reports shall be made

21
      a part of the record of the case.

22
           (3) If a defendant is found guilty but mentally ill or

23
      enters a plea to that effect which is accepted by the court, the

24
      court shall impose any sentence  which  THAT could be imposed

25
       pursuant to  BY law upon a defendant who is convicted of the

26
      same offense.  If the defendant is committed to the custody of

27
      the department of corrections,  he  THE DEFENDANT shall undergo



   02935'01 *                                   3

 1
      further evaluation and be given such treatment as is

 2
      psychiatrically indicated for his OR HER mental illness or

 3
      retardation.  Treatment may be provided by the department of cor-

 4
      rections or by the department of  mental  COMMUNITY health  after

 5
      his transfer pursuant to sections 1000 or 1002 of Act No. 258 of

 6
      the Public Acts of 1974, being sections 330.2000 or 330.2002 of

 7
      the Michigan Compiled Laws  AS PROVIDED BY LAW.  Sections 1004

 8
      and 1006 of  Act No. 258 of the Public Acts of 1974 shall  THE

 9
      MENTAL HEALTH CODE, 1974 PA 258, MCL 330.2004 AND 330.2006, apply

10
      to the discharge of  such a  THE defendant from a facility of the

11
      department of  mental  COMMUNITY health to which  he  THE

12
      DEFENDANT has been admitted and  shall apply  to the return of

13
       such a  THE defendant to the department of corrections for the

14
      balance of the defendant's sentence.  When a treating facility

15
      designated by either the department of corrections or the depart-

16
      ment of  mental  COMMUNITY health discharges  such a  THE

17
      defendant  prior to  BEFORE the expiration of  his  THE

18
      DEFENDANT'S sentence, that treating facility shall transmit to

19
      the parole board a report on the condition of the defendant

20
       which  THAT contains the clinical facts, the diagnosis, the

21
      course of treatment,  and  the prognosis for the remission of

22
      symptoms, the potential for recidivism,  and for  the danger OF

23
      THE DEFENDANT to himself OR HERSELF or TO the public, and recom-

24
      mendations for future treatment.   In the event that  IF the

25
      parole board  pursuant to law or administrative rules should con-

26
      sider him  CONSIDERS THE DEFENDANT for parole, the board shall

27
      consult with the treating facility at which the defendant is



   02935'01 *                                   4

 1
      being treated or from which  he  THE DEFENDANT has been

 2
      discharged and a comparable report on the condition of the

 3
      defendant shall be filed with the board.  If  he  THE DEFENDANT

 4
      is placed on parole,  by the parole board, his  THE DEFENDANT'S

 5
      treatment shall, upon recommendation of the treating facility, be

 6
      made a condition of parole.  , and failure  FAILURE to continue

 7
      treatment except by agreement with the designated facility and

 8
      parole board  shall be a basis  IS GROUNDS for  the institution

 9
      of parole violation hearings  REVOCATION OF PAROLE.

10
           (4) If a defendant who is found guilty but mentally ill is

11
      placed on probation under the jurisdiction of the sentencing

12
      court  pursuant to  AS PROVIDED BY law, the trial judge, upon

13
      recommendation of the center for forensic psychiatry, shall make

14
      treatment a condition of probation.  Reports as specified by the

15
      trial judge shall be filed with the probation officer and the

16
      sentencing court.  Failure to continue treatment, except by

17
      agreement with the treating agency and the sentencing court,

18
       shall be a basis  IS GROUNDS for  the institution  REVOCATION
   of

19
      probation.  violation hearings.  The period of probation shall

20
      not be for less than 5 years and shall not be shortened without

21
      receipt and consideration of a forensic psychiatric report by the

22
      sentencing court.  Treatment shall be provided by an agency of

23
      the department of  mental  COMMUNITY health  ,  or, with the

24
      approval of the sentencing court and at individual expense, by

25
      private agencies, private physicians, or other mental health

26
      personnel.  A psychiatric report shall be filed with the

27
      probation officer and the sentencing court every 3 months during



   02935'01 *                                   5

 1
      the period of probation.  If a motion on a petition to

 2
      discontinue probation is made by the defendant, the probation

 3
      officer shall request a report as specified from the center for

 4
      forensic psychiatry or any other facility certified by department

 5
      of  mental  COMMUNITY health for the performance of forensic psy-

 6
      chiatric evaluation.












































   02935'01 *          Final page.                          DRM