Can the Summary Court Order a Competency Evaluation?

Can the summary court order a competency evaluation?

This question has stumped magistrates, prosecutors, and defense lawyers for as long as I’ve been practicing law. It seems basic that a court cannot try or punish a defendant for an alleged crime if the defendant is mentally ill to the point that they don’t understand the proceedings and can’t assist an attorney in their defense.

And yet, the summary courts convict and punish mentally ill persons on a regular basis across the state.

There is a system in place where General Sessions Court judges refer defendants for a competency evaluation whenever competency is in question. In most cases, the Department of Mental Health will send the defendant back with an explanation of why they are competent to stand trial – the default is that a defendant will be found competent to stand trial (which surely has nothing to do with the Department of Mental Health’s funding problems or lack of beds in facilities).

Yet, in summary court, defendants often are not represented by an attorney, don’t ask for competency evaluations, and don’t receive them when they do ask. Until now…

In State v. Bernardino, decided December 23, 2019, the SC Supreme Court held that defendants in the summary court are entitled to a competency evaluation – failure to provide an evaluation when competency is in question is a violation of due process and the prosecution cannot proceed without one.

What is a Competency Evaluation?

A competency evaluation is not the same as a criminal responsibility evaluation, and the two are often confused.

What is the difference?

Competency to Stand Trial

A person is not competent to stand trial if their mental illness or mental capacity prevents them from understanding the proceedings against them or prevents them from assisting in their defense. SC Code Section 44-23-410(A) states:

Whenever a judge of the circuit court or family court has reason to believe that a person on trial before him, charged with the commission of a criminal offense or civil contempt, is not fit to stand trial because the person lacks the capacity to understand the proceedings against him or to assist in his own defense as a result of a lack of mental capacity, the judge shall: (1) order examination of the person [by the Department of Mental Health or the Department of Disabilities and Special Needs]; or (2) order the person committed for examination and observation to an appropriate facility of the Department of Mental Health or the Department of Disabilities and Special Needs.

If a person is found not competent to stand trial, they are not immediately released – they are usually committed to the Department of Mental Health (pause – see why Department of Mental Health, with limited funding and scarce bed space, is reluctant to find anyone not competent to stand trial?) until they can be “restored to competency” and brought back for trial.

Criminal responsibility is a separate evaluation that is only conducted after a person has been found competent to stand trial…

Criminal Responsibility

A criminal responsibility evaluation is ordered when a defendant raises the “insanity defense.”

SC Code Section 17-24-10 says:

(A) It is an affirmative defense to a prosecution for a crime that, at the time of the commission of the act constituting the offense, the defendant, as a result of mental disease or defect, lacked the capacity to distinguish moral or legal right from moral or legal wrong or to recognize the particular act charged as morally or legally wrong.

(B) The defendant has the burden of proving the defense of insanity by a preponderance of the evidence.

(C) Evidence of a mental disease or defect that is manifested only by repeated criminal or other antisocial conduct is not sufficient to establish the defense of insanity.

The ”insanity defense” is not really a defense in SC. If a person is found “not guilty by reason of insanity,” or NGRI, they do not go free – they are committed to the Department of Mental Health.

More importantly, as far as I know, there has never been a jury verdict of NGRI in SC.


Because jurors are always presented with the alternative of “Guilty but Mentally Ill,” and the Court and attorneys are prohibited from telling the jurors that:

  1. Guilty but mentally ill means “guilty” – the defendant goes to the Department of Corrections and receives the same mental health screening that every convicted defendant receives; and
  2. Not guilty by reason of insanity means the defendant goes to the Department of Mental Health to receive treatment for their condition.

Jurors who want to help a mentally ill defendant and who do not want to put the community at risk from their behavior will always find a defendant “guilty but mentally ill” because the Court is required by statute to allow jurors to believe that guilty but mentally ill verdict will result in treatment while an NGRI verdict will result in a defendant being released.

In other words, courts and attorneys are required by law to lie to jurors to ensure that mentally ill defendants never get the benefit of an NGRI verdict.

Can the Summary Court Order a Competency Evaluation?

Summary courts have always had the authority to order a competency evaluation (or a criminal responsibility evaluation), but they rarely do because of questions as to whether the Department of Mental Health would conduct the evaluation and under what authority the court can order the evaluation.

Summary courts not only can but must order a competency evaluation when it is requested by a mentally ill defendant – otherwise, it would be a violation of Due Process. Courts cannot try and punish defendants who are not competent to stand trial.

Regardless of statutory language, courts have the inherent power to order a competency evaluation when it is required by Due Process:

However, there is also nothing in section 44-23-410 prohibiting a summary court from ordering an evaluation. To construe the section as prohibiting a summary court from ordering an evaluation when the court suspects the defendant is not competent would render the section unconstitutional. “We will not construe statutes to be unconstitutional when susceptible to a constitutional interpretation.” Hampton v. Haley, 403 S.C. 395, 408, 743 S.E.2d 258, 265 (2013) (citing Joytime Distributors & Amusement Co., Inc. v. State, 338 S.C. 634, 640, 528 S.E.2d 647, 650 (1999)).

Because a competency determination is required by due process when the trial court suspects the defendant lacks competence, we construe section 44-23-410 to merely set forth the formal procedure to be followed in circuit and family court, and not to limit the authority of summary courts to order an evaluation. Because it is necessary to protect the due process rights of defendants, summary courts must have the inherent authority to order competency evaluations.

The issue is complicated by the fact that many defendants in SC have not been provided defense counsel in the summary courts and cannot afford to retain an attorney – a mentally ill pro se defendant is more likely to pay a fine or do the jail time than to raise the issue of their own competency…

Who Pays for a Competency Evaluation in Summary Court?

In General Sessions Court, SC law says that the Department of Mental Health must foot the bill for a competency evaluation. The law does not address competency evaluations in the summary court, however:

The question becomes who must pay for the evaluation. Pursuant to section 44-23-410, when such an evaluation is ordered by a circuit or family court, the examination must be provided or paid for by the Department of Mental Health or the Department of Disabilities and Special Needs. There is no such provision for an evaluation ordered by the summary court. As we have explained, summary courts have the inherent power to order an evaluation, but no court has inherent power to order an executive branch agency to pay for one. Thus, until the Legislature has a chance to address the provision of such examinations, the prosecuting entity must agree to pay the costs of the evaluation of indigent defendants. Otherwise—as the summary court ordered here—the prosecution may not go forward.

The Supreme Court notes that the legislature can fix this problem (and they probably will if solicitor’s offices start getting hit with bills for competency evaluations in the summary court).

In the meantime, courts and solicitor’s offices have two choices: the solicitor’s office can pay for the competency evaluation (and the criminal responsibility evaluation that is sure to follow), or the court can dismiss the charges against the defendant.

Which raises the question: Why would a solicitor’s office prosecute a mentally ill defendant for a minor offense in the summary court in the first place, instead of getting them help and treatment for their condition?

Criminal Defense Lawyer in Charleston, SC

Grant Smaldone accepts criminal cases in state and federal court in the Charleston, Myrtle Beach, Georgetown, and Eastern SC area.

If you are charged with a crime or if you believe you are under criminal investigation, call Charleston, SC criminal defense attorney Grant B. Smaldone now at (843) 808-2100 or send us a message to speak with a SC criminal defense lawyer today.