GA Code § 17-7-131 (2021)
2021 Georgia Code|Title 17 - Criminal Procedure|Chapter 7 - Pretrial Proceedings|Article 6 - Demurrers, Motions, and Special Pleas and Exceptions|Part 2 - Insanity and Mental Incompetency|§ 17-7-131. Proceedings Upon Plea of Insanity or Mental Incompetency at Time of Crime

  For purposes of this Code section, the term:   "Insane at the time of the crime" means meeting the criteria of Code Section 16-3-2 or 16-3-3. However, the term shall not include a mental state manifested only by repeated unlawful or antisocial conduct.   "Intellectual disability" means having significantly subaverage general intellectual functioning resulting in or associated with impairments in adaptive behavior which manifested during the developmental period.   "Mentally ill" means having a disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life. However, the term "mental illness" shall not include a mental state manifested only by repeated unlawful or antisocial conduct.       In all cases in which the defense of insanity, mental illness, or intellectual disability is interposed, the jury, or the court if tried by it, shall find whether the defendant is:   Guilty;   Not guilty;   Not guilty by reason of insanity at the time of the crime;   Guilty but mentally ill at the time of the crime, but the finding of guilty but mentally ill shall be made only in felony cases; or   Guilty but with intellectual disability, but the finding of intellectual disability shall be made only in felony cases.     A plea of guilty but mentally ill at the time of the crime or a plea of guilty but with intellectual disability shall not be accepted until the defendant has undergone examination by a licensed psychologist or psychiatrist and the court has examined the psychological or psychiatric reports, held a hearing on the issue of the defendant's mental condition, and is satisfied that there is a factual basis that the defendant was mentally ill at the time of the offense or has intellectual disability to which the plea is entered.  (2.1) A plea of not guilty by reason of insanity at the time of the crime shall not be accepted and the defendant adjudicated not guilty by reason of insanity by the court without a jury until the defendant has undergone examination by a licensed psychologist or psychiatrist and the court has examined the psychological or psychiatric reports, has held a hearing on the issue of the defendant's mental condition, and the court is satisfied that the defendant was insane at the time of the crime according to the criteria of Code Section 16-3-2 or 16-3-3.    In all cases in which the defense of insanity, mental illness, or intellectual disability is interposed, the trial judge shall charge the jury, in addition to other appropriate charges, the following:   I charge you that should you find the defendant not guilty by reason of insanity at the time of the crime, the defendant will be committed to a state mental health facility until such time, if ever, that the court is satisfied that he or she should be released pursuant to law.   I charge you that should you find the defendant guilty but mentally ill at the time of the crime, the defendant will be placed in the custody of the Department of Corrections which will have responsibility for the evaluation and treatment of the mental health needs of the defendant, which may include, at the discretion of the Department of Corrections, referral for temporary hospitalization at a facility operated by the Department of Behavioral Health and Developmental Disabilities.   I charge you that should you find the defendant guilty but with intellectual disability, the defendant will be placed in the custody of the Department of Corrections, which will have responsibility for the evaluation and treatment of the mental health needs of the defendant, which may include, at the discretion of the Department of Corrections, referral for temporary hospitalization at a facility operated by the Department of Behavioral Health and Developmental Disabilities.       In all criminal trials in any of the courts of this state wherein an accused shall contend that he or she was insane, mentally ill, or intellectually disabled at the time the act or acts charged against him or her were committed, the trial judge shall instruct the jury that they may consider, in addition to verdicts of "guilty" and "not guilty," the additional verdicts of "not guilty by reason of insanity at the time of the crime," "guilty but mentally ill at the time of the crime," and "guilty but with intellectual disability."   The defendant may be found "not guilty by reason of insanity at the time of the crime" if he or she meets the criteria of Code Section 16-3-2 or 16-3-3 at the time of the commission of the crime. If the court or jury should make such finding, it shall so specify in its verdict.   The defendant may be found "guilty but mentally ill at the time of the crime" if the jury, or court acting as trier of facts, finds beyond a reasonable doubt that the defendant is guilty of the crime charged and was mentally ill at the time of the commission of the crime. If the court or jury should make such finding, it shall so specify in its verdict.   The defendant may be found "guilty but with intellectual disability" if the jury, or court acting as trier of facts, finds beyond a reasonable doubt that the defendant is guilty of the crime charged and is with intellectual disability. If the court or jury should make such finding, it shall so specify in its verdict.     Whenever a defendant is found not guilty by reason of insanity at the time of the crime, the court shall retain jurisdiction over the person so acquitted and shall order such person to be detained in a state mental health facility, to be selected by the Department of Behavioral Health and Developmental Disabilities, for a period not to exceed 30 days from the date of the acquittal order, for evaluation of the defendant's present mental condition. Upon completion of the evaluation, the proper officials of the mental health facility shall send a report of the defendant's present mental condition to the trial judge, the prosecuting attorney, and the defendant's attorney, if any.     After the expiration of the 30 days' evaluation period in the state mental health facility, if the evaluation report from the Department of Behavioral Health and Developmental Disabilities indicates that the defendant does not meet the inpatient commitment criteria of Chapter 3 of Title 37 or Chapter 4 of Title 37, the trial judge may issue an order discharging the defendant from custody without a hearing.   If the defendant is not so discharged, the trial judge shall order a hearing to determine if the defendant meets the inpatient commitment criteria of Chapter 3 of Title 37 or Chapter 4 of Title 37. If such criteria are not met, the defendant must be discharged.   The defendant shall be detained in custody until completion of the hearing. The hearing shall be conducted at the earliest opportunity after the expiration of the 30 days' evaluation period but in any event within 30 days after receipt by the prosecuting attorney of the evaluation report from the mental health facility. The court may take judicial notice of evidence introduced during the trial of the defendant and may call for testimony from any person with knowledge concerning whether the defendant is currently a mentally ill person in need of involuntary treatment, as defined by paragraph (12) of Code Section 37-3-1, or a person with a developmental disability, as defined in paragraph (8) of Code Section 37-1-1, who presents a substantial risk of imminent harm to himself or herself or others. The prosecuting attorney may cross-examine the witnesses called by the court and the defendant's witnesses and present relevant evidence concerning the issues presented at the hearing.   If the judge determines that the defendant meets the inpatient commitment criteria of Chapter 3 of Title 37 or Chapter 4 of Title 37, the judge shall order the defendant to be committed to the Department of Behavioral Health and Developmental Disabilities to receive involuntary treatment under Chapter 3 of Title 37 or to receive services under Chapter 4 of Title 37. The defendant is entitled to the following rights specified below and shall be notified in writing of these rights at the time of his or her admission for evaluation under subsection (d) of this Code section. Such rights are:   A notice that a hearing will be held and the time and place thereof;   A notice that the defendant has the right to counsel and that the defendant or his or her representatives may apply immediately to the court to have counsel appointed if the defendant cannot afford counsel and that the court will appoint counsel for the defendant unless he or she indicates in writing that he or she does not desire to be represented by counsel;   The right to confront and cross-examine witnesses and to offer evidence;   The right to subpoena witnesses and to require testimony before the court in person or by deposition from any person upon whose evaluation the decision of the court may rest;   Notice of the right to have established an individualized service plan specifically tailored to the person's treatment needs, as such plans are defined in Chapter 3 of Title 37 and Chapter 4 of Title 37; and   A notice that the defendant has the right to be examined by a physician or a licensed clinical psychologist of his or her own choice at his or her own expense and to have that physician or psychologist submit a suggested service plan for the patient which conforms with the requirements of Chapter 3 of Title 37 or Chapter 4 of Title 37, whichever is applicable.       If a defendant appears to meet the criteria for outpatient involuntary treatment as defined in Part 3 of Article 3 of Chapter 3 of Title 37, which shall be the criteria for release on a trial basis in the community in preparation for a full release, the court may order a period of conditional release subject to certain conditions set by the court. The court is authorized to appoint an appropriate community service provider to work in conjunction with the Department of Behavioral Health and Developmental Disabilities to monitor the defendant's compliance with these conditions and to make regular reports to the court.   If the defendant successfully completes all requirements during this period of conditional release, the court shall discharge the individual from commitment at the end of that period. Such individuals may be referred for community mental health, developmental disabilities, or substance abuse services as appropriate. The court may require the individual to participate in outpatient treatment or any other services or programs authorized by Chapter 3, 4, or 7 of Title 37.   If the defendant does not successfully complete any or all requirements of the conditional release period, the court may:   Revoke the period of conditional release and return the defendant to a state hospital for inpatient services; or   Impose additional or revise existing conditions on the defendant as appropriate and continue the period of conditional release.     For any decision rendered under subparagraph (C) of this paragraph, the defendant may request a review by the court of such decision within 20 days of the order of the court.   The Department of Behavioral Health and Developmental Disabilities and any community services providers, including the employees and agents of both, providing supervision or treatment during a period of conditional release shall not be held criminally or civilly liable for any acts committed by a defendant placed by the committing court on a period of conditional release.       A defendant who has been found not guilty by reason of insanity at the time of the crime and is ordered committed to the Department of Behavioral Health and Developmental Disabilities under subsection (e) of this Code section may only be discharged from that commitment by order of the committing court in accordance with the procedures specified in this subsection:   Application for the release of a defendant who has been committed to the Department of Behavioral Health and Developmental Disabilities under subsection (e) of this Code section upon the ground that he or she does not meet the civil commitment criteria under Chapter 3 of Title 37 or Chapter 4 of Title 37 may be made to the committing court, either by such defendant or by the superintendent of the state hospital in which the said defendant is detained;   The burden of proof in such release hearing shall be upon the applicant. The defendant shall have the same rights in the release hearing as set forth in subsection (e) of this Code section; and   If the finding of the court is adverse to release in such hearing held pursuant to this subsection on the grounds that such defendant does meet the inpatient civil commitment criteria, a further release application by the defendant shall not be heard by the court until 12 months have elapsed from the date of the hearing upon the last preceding application. The Department of Behavioral Health and Developmental Disabilities shall have the independent right to request a release hearing once every 12 months.       Whenever a defendant is found guilty but mentally ill at the time of a felony or guilty but has intellectual disability, or enters a plea to that effect that is accepted by the court, the court shall sentence him or her in the same manner as a defendant found guilty of the offense, except as otherwise provided in subsection (j) of this Code section. A defendant who is found guilty but mentally ill at the time of the felony or guilty but has intellectual disability shall be committed to an appropriate penal facility and shall be evaluated then treated, if indicated, within the limits of state funds appropriated therefor, in such manner as is psychiatrically indicated for his or her mental illness or intellectual disability.   If at any time following the defendant's conviction as a guilty but mentally ill or guilty but with intellectual disability offender it is determined that a temporary transfer to the Department of Behavioral Health and Developmental Disabilities is clinically indicated for his or her mental illness or intellectual disability, then the defendant shall be transferred to the Department of Behavioral Health and Developmental Disabilities pursuant to procedures set forth in regulations of the Department of Corrections and the Department of Behavioral Health and Developmental Disabilities. In all such cases, the legal custody of the defendant shall be retained by the Department of Corrections. Upon notification from the Department of Behavioral Health and Developmental Disabilities to the Department of Corrections that hospitalization at a Department of Behavioral Health and Developmental Disabilities facility is no longer clinically indicated for his or her mental illness or intellectual disability, the Department of Corrections shall transfer the defendant back to its physical custody and shall place such individual in an appropriate penal institution.     If a defendant who is found guilty but mentally ill at the time of a felony or guilty but with intellectual disability is placed on probation under the "State-wide Probation Act," Article 2 of Chapter 8 of Title 42, the court may require that the defendant undergo available outpatient medical or psychiatric treatment or seek similar available voluntary inpatient treatment as a condition of probation. Persons required to receive such services may be charged fees by the provider of the services.   In any case in which the defense of insanity is interposed or a plea of guilty but mentally ill at the time of the felony or a plea of guilty but with intellectual disability is made and an examination is made of the defendant pursuant to Code Section 17-7-130.1 or paragraph (2) of subsection (b) of this Code section, upon the defendant's being found guilty or guilty but mentally ill at the time of the crime or guilty but with intellectual disability, a copy of any such examination report shall be forwarded to the Department of Corrections with the official sentencing document. The Department of Behavioral Health and Developmental Disabilities shall forward, in addition to its examination report, any records maintained by such department that it deems appropriate pursuant to an agreement with the Department of Corrections, within ten business days of receipt by the Department of Behavioral Health and Developmental Disabilities of the official sentencing document from the Department of Corrections.     In the trial of any case in which the death penalty is sought which commences on or after July 1, 1988, should the judge find in accepting a plea of guilty but mentally retarded, or the jury or court find in its verdict that the defendant is guilty of the crime charged but mentally retarded, the death penalty shall not be imposed and the court shall sentence the defendant to imprisonment for life.   In the trial of any case in which the death penalty is sought which commences on or after July 1, 2017, should the judge find in accepting a plea of guilty but with intellectual disability, or the jury or court find in its verdict that the defendant is guilty of the crime charged but with intellectual disability, the death penalty shall not be imposed and the court shall sentence the defendant to imprisonment for life.      (Orig. Code 1863, § 1314; Code 1868, § 1395; Code 1873, § 1374; Code 1882, § 1374; Penal Code 1895, § 952; Penal Code 1910, § 977; Code 1933, § 27-1503; Ga. L. 1952, p. 205, § 1; Ga. L. 1972, p. 848, § 1; Ga. L. 1977, p. 1293, § 2; Ga. L. 1982, p. 1476, §§ 1, 2; Ga. L. 1984, p. 22, § 17; Ga. L. 1985, p. 283, § 1; Ga. L. 1985, p. 637, §§ 2-4; Ga. L. 1988, p. 1003, § 1; Ga. L. 1989, p. 14, § 17; Ga. L. 1991, p. 780, §§ 1-3; Ga. L. 1992, p. 1328, §§ 2, 3; Ga. L. 2006, p. 765, § 1/SB 398; Ga. L. 2009, p. 453, § 3-2/HB 228; Ga. L. 2011, p. 337, § 9/HB 324; Ga. L. 2013, p. 141, § 17/HB 79; Ga. L. 2017, p. 471, § 3/HB 343.)   Cross references.   - Mental capacity as it relates to culpability for criminal acts, § 16-3-2 et seq.    Mental incompetency to be executed, § 17-10-60 et seq.    Manner of service of petition for release of person detained in facility pursuant to court order under section, §§ 37-3-148,37-4-108,37-7-148.   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 1985, "Offender Rehabilitation" was changed to "Corrections" throughout this Code section and "and" was inserted after paragraph (f)(2).   Pursuant to Code Section 28-9-5, in 1988, punctuation was revised in the introductory language of subsection (c).   Pursuant to Code Section 28-9-5, in 1991, the parentheses enclosing "or she" following "he" in subparagraph (b)(3)(A) were deleted.   U.S. Code.   - Defense of insanity, Federal Rules of Criminal Procedure, Rule 12.2.   Administrative Rules and Regulations.   - Disposition of guilty but mentally ill and guilty but mentally retarded offenders, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Services, Mental Health, Developmental Disabilities and Addictive Diseases, Subject 290-4-8.   Law reviews.   - For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For lecture on law and the unreasonable person, see 36 Emory L.J. 181 (1987). For survey of 1986 Eleventh Circuit cases on constitutional criminal procedure, see 38 Mercer L. Rev. 1141 (1987). For annual survey on criminal law and procedure, see 42 Mercer L. Rev. 141 (1990). For survey article on criminal law and procedure for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 117 (2003). For annual survey of death penalty law, see 56 Mercer L. Rev. 197 (2004). For annual survey of death penalty decisions, see 57 Mercer L. Rev. 139 (2005). For annual survey on criminal law, see 64 Mercer L. Rev. 83 (2012). For annual survey on the death penalty, see 64 Mercer L. Rev. 109 (2012). For article, "Annual Survey of Georgia Law: June 1, 2015 - May 31, 2016: Special Contribution: Georgia's Safe Harbor Ruling for Affirmative Defenses in Criminal Cases Should Be Revisited," see 68 Mercer L. Rev. 35 (2016). For article, "An Empirical Assessment of Georgia's Beyond a Reasonable Doubt Standard to Determine Intellectual Disability in Capital Cases," see 33 Ga. St. U.L. Rev. 553 (2017). For annual survey on criminal law, see 69 Mercer L. Rev. 73 (2017). For note, "Commitment and Release of Persons Found Not Guilty by Reason of Insanity: A Georgia Perspective," see 15 Ga. L. Rev. 1065 (1981). For note on 1991 amendment of this Code section, see 8 Ga. St. U.L. Rev. 121 (1992). For note, "Can't Do the Time, Don't Do the Crime?: Dixon v. State, Statutory Construction, and the Harsh Realities of Mandatory Minimum Sentencing in Georgia," see 22 Ga. St. U.L. Rev. 519 (2005). For comment advocating legislative determination of parental liability for costs of institutional custody of child involuntarily committed to a mental health facility in response to criminal behavior in light of Treglown v. Department of Health & Social Servs., 38 Wis.2d 317, 156 N.W.2d 363 (1968), see 19 Mercer L. Rev. 457 (1968). For comment, "Capital Punishment: New Weapons in the Sentencing Process," see 24 Ga. L. Rev. 423 (1990).   JUDICIAL DECISIONS   ANALYSIS    General Consideration   Constitutionality   "Insane," "Mentally Ill," "Intellectual Disability" Defined   Jury Charge    OPINIONS OF THE ATTORNEY GENERAL   Department's authority to transfer patients.   - This section authorized the Department of Human Resources to make intrastate hospital transfers of persons found not guilty by reason of insanity. Only when such proposed transfers were to be out of this state must the permission of the superior court be obtained. 1979 Op. Att'y Gen. No. 79-44.    When the contemplated transfer will be to a hospital in another state,  out of the jurisdiction of the courts of this state, the superior court needs to be consulted so that the court can issue appropriate orders relative to retention of jurisdiction, discharge procedures, and other pertinent matters. 1979 Op. Att'y Gen. No. 79-44.   Scope of court supervision of discharge of criminally-committed patients.   - This section gave the court more supervision over the final discharge of criminally-committed patients than over civilly-committed patients by requiring the criminally-committed patient to petition the committing court for the patient's release. This discharge supervision was not diminished by the authority of the Department of Human Resources to select the hospital to which criminally- committed patients were initially committed. Similarly, there was no further diminution of the court's role by granting to the department the authority to select the hospital to which the patient was later transferred so long as the second hospital was within the state. 1979 Op. Att'y Gen. No. 79-44.   RESEARCH REFERENCES   Am. Jur. 2d.   - 21 Am. Jur. 2d, Criminal Law, §§ 33 et seq., 43 et seq.   ALR.    - Constitutionality of statutes relating to determination of plea of insanity in criminal case, 67 A.L.R. 1451.    Constitutionality of statute relating to insanity as defense to crime, 74 A.L.R. 265.    Jurisdiction of proceedings for restoration to competency of one who has allegedly regained sanity after an adjudication of incompetency, 121 A.L.R. 1509.    Right of appeal in proceeding for restoration to competency, 122 A.L.R. 541.    Investigation of present sanity to determine whether accused should be put, or continue, on trial, 142 A.L.R. 961.    Irresistible impulse as excuse for crime, 173 A.L.R. 391.   Insanity of accused at time of commission of offense, not raised at trial, as ground for habeas corpus or coram nobis after conviction, 29 A.L.R.2d 703.   Validity and construction of statutes providing for psychiatric examination of accused to determine mental condition, 32 A.L.R.2d 434.   Requirement of unanimity of verdict in proceedings to determine sanity of one accused of crime, 42 A.L.R.2d 1468.   Counsel's right, in consulting with accused as client, to be accompanied by psychiatrist, psychologist, hypnotist, or similar practitioner, 72 A.L.R.2d 1120.   Release of one committed to institution as consequence of acquittal of crime on ground of insanity, 95 A.L.R.2d 54.   Instructions in criminal case in which defendant pleads insanity as to his hospital confinement in the event of acquittal, 11 A.L.R.3d 737.   Appealability of orders or rulings, prior to final judgment in criminal case, as to accused's mental competency, 16 A.L.R.3d 714.   Modern status of rules as to burden and sufficiency of proof of mental irresponsibility in criminal case, 17 A.L.R.3d 146.   Validity of statutory provision for commitment to mental institution of one acquitted of crime on ground of insanity without formal determination of mental condition at time of acquittal, 50 A.L.R.3d 144.   Admissibility on issue of sanity of expert opinion based partly on medical, psychological, or hospital records, 55 A.L.R.3d 551.   Necessity or propriety of bifurcated criminal trial on issue of insanity defense, 1 A.L.R.4th 884.   Validity of conditions imposed when releasing person committed to institution as consequence of acquittal of crime on ground of insanity, 2 A.L.R.4th 934.   Admissibility of testimony regarding spontaneous declarations made by one incompetent to testify at trial, 15 A.L.R.4th 1043.   Competency to stand trial of criminal defendant diagnosed as "mentally retarded" - modern cases, 23 A.L.R.4th 493.   Mental or emotional disturbance as defense to or mitigation of charges against attorney in disciplinary proceeding, 26 A.L.R.4th 995.   "Guilty but mentally ill" statutes: validity and construction, 71 A.L.R.4th 702.   Power of state trial court in criminal case to change venue on its own motion, 74 A.L.R.4th 1023.   Right of state prison authorities to administer neuroleptic or antipsychotic drugs to prisoner without his or her consent - state cases, 75 A.L.R.4th 1124.   Instructions in state criminal case in which defendant pleads insanity as to hospital confinement in event of acquittal, 81 A.L.R.4th 659.   Propriety of imposing capital punishment on mentally retarded individuals, 20 A.L.R.5th 177.   Propriety of transferring patient found not guilty by reason of insanity to less restrictive confinement, 43 A.L.R.5th 777.   Adequacy of defense counsel's representation of criminal client - issues of incompetency, 70 A.L.R.5th 1.   Adequacy of defense counsel's representation of criminal client - pretrial conduct or conduct at unspecified time regarding issues of insanity, 72 A.L.R.5th 109.   Qualification of nonmedical psychologist to testify as to mental condition or competency, 72 A.L.R.5th 529.   Extended commitment of one committed to institution as consequence of acquittal of crime on ground of insanity, 52 A.L.R.6th 567.