Part 2 | Understanding the Insanity Defense in South Carolina – Criminal Responsibility Explained

In the Part 1 of this series, we broke down the first stage of the insanity defense — competency — which looks at whether a person understands what’s happening in court today and can help in their own defense.

This time, we’re shifting focus to criminal responsibility — what was going on in a person’s mind at the time of the crime.

Criminal Responsibility in South Carolina

Criminal responsibility seeks to determine whether a person understood the difference between right and wrong at the time of the alleged crime — and if not, whether that lack of understanding was caused by what South Carolina law calls a “mental disease or defect.” (We don’t love that phrase, but it’s the one written in the statute.)

This is what most people picture when they hear the term “insanity defense.” It’s one of the most challenging arguments to make in criminal law, and it’s only appropriate in a small number of cases.

To assert it, an attorney must show that — because of a mental illness — the person could not understand the nature of their actions or distinguish right from wrong when the crime occurred.

How the Process Works

When criminal responsibility becomes a question, the defense requests a forensic evaluation to determine whether the person was criminally responsible at the time of the crime.

• The first evaluation is done by state forensic evaluators under contract with the South Carolina Department of Mental Health (SCDMH).

• In Georgetown and surrounding counties, those evaluations are handled through MUSC’s Forensic Psychiatry Program.

• Evaluators review the case, meet with the defendant, and assess whether the person understood right from wrong and could control their actions.

If the state evaluators find the person was criminally responsible but the defense disagrees, a private forensic evaluation can be requested.

• For private attorneys, families typically pay out of pocket.

• For public defenders, the state covers the cost.

This process ensures both sides have the opportunity to present expert opinions when the question of criminal responsibility isn’t clear-cut.

When Evaluators Disagree

Sometimes the state’s expert and the defense’s expert reach different conclusions. In those cases, the question goes to trial.

A judge or jury then decides whether the defendant was legally insane at the time of the crime. If they determine the person was not criminally responsible, the finding is Not Guilty by Reason of Insanity (NGRI).

What “Not Guilty by Reason of Insanity” Really Means

A finding of NGRI means the court agrees the person was suffering from a mental illness so severe that they couldn’t understand right from wrong at the time of the crime.

But “not guilty” doesn’t necessarily mean “free to go.”

After an NGRI verdict, the person comes under the supervision of the South Carolina Department of Probation, Parole, and Pardon Services (SCDPPPS). That department works with the Department of Mental Health to ensure the individual continues treatment and that the community remains safe.

Depending on the circumstances, the person may be:

• Hospitalized in a secure mental health facility, or

• Monitored in the community under strict treatment and supervision conditions.

This period of oversight can last up to the same length of time as the sentence the person would have faced if convicted.

Who Typically Qualifies for an NGRI Finding

NGRI findings are rare and reserved for cases involving the most severe symptoms of mental illness — situations where a person is actively psychotic, delusional, or experiencing hallucinations so intense that they genuinely can’t distinguish reality from imagination.

For example, someone who believes they must act to protect themselves or others from a nonexistent threat may not understand that what they were doing was wrong.

In our experience, these are individuals experiencing severe psychosis or delusion — unable to distinguish reality from perceptions.

Why These Cases Are So Complex

Insanity defenses sit at the intersection of criminal law and psychiatry. They depend on careful forensic evaluations, expert testimony, and strong legal advocacy.

Prosecutors and defense attorneys alike rely on expert opinions to explain a defendant’s mental state to the court. Each report, phrase, and conclusion can carry enormous weight.

We’ve worked these cases from both sides — as prosecutors and defense attorneys — and we know how important it is to balance compassion, precision, and public safety.

Why Local Experience Still Matters

The legal standard for criminal responsibility is the same across South Carolina, but the process can look different depending on where you are.

In Georgetown County, MUSC performs state forensic evaluations under contract with SCDMH, while private evaluations often involve experts from other parts of the state.

Working with a local attorney ensures these evaluations are requested correctly, scheduled promptly, and communicated clearly between the courts and evaluators. It also helps navigate the local expectations and relationships that can affect how quickly a case moves through the system.

FAQ: Criminal Responsibility and the Insanity Defense

How is criminal responsibility different from competency?

Competency looks at a person’s mental state now — whether they can stand trial. Criminal responsibility looks at their mental state then — at the time of the alleged crime.

Who decides if someone was criminally responsible?

If evaluators disagree, a judge or jury makes the final decision after hearing expert testimony from both sides.

Does “Not Guilty by Reason of Insanity” mean the person goes free?

No. They remain under state supervision and may continue treatment for years, sometimes for as long as the original sentence would have lasted.

Who pays for private evaluations?

Private defendants or their families pay directly; for clients represented by public defenders, the state covers the cost.

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Final Thoughts

Criminal responsibility is one of the most misunderstood areas of criminal law — and one of the hardest to prove. It demands experience with both the legal and mental health systems, an understanding of forensic evaluations, and careful coordination with state and private experts.

If you or someone you love believes mental illness played a role in a criminal case, it’s important to have an attorney who understands how these evaluations work in South Carolina. Contact Erin Bailey Law for knowledgeable, compassionate representation.