(a) Where a defendant’s defense is based upon allegations which, if true, would be grounds for a verdict of “guilty, but mentally ill” or the defendant desires to enter a plea to that effect, no finding of “guilty, but mentally ill” shall be rendered until the trier of fact has examined all appropriate reports (including the presentence investigation); has held a hearing on the sole issue of the defendant’s mental illness, at which either party may present evidence; and is satisfied that the defendant did in fact have a mental illness at the time of the offense to which the plea is entered. Where the trier of fact, after such hearing, is not satisfied that the defendant had a mental illness at the time of the offense, or determines that the facts do not support a “guilty, but mentally ill” plea, the trier of fact shall strike such plea, or permit such plea to be withdrawn by the defendant. A defendant whose plea is not accepted by the trier of fact shall be entitled to a jury trial, except that if a defendant subsequently waives the right to a jury trial, the judge who presided at the hearing on mental illness shall not preside at the trial.
(b) In a trial under this section a defendant found guilty but mentally ill, or whose plea to that effect is accepted, may have any sentence imposed which may lawfully be imposed upon any defendant for the same offense. Such defendant shall be committed into the custody of the Department of Correction, and shall undergo such further evaluation and be given such immediate and temporary treatment as is psychiatrically indicated. The Commissioner shall retain exclusive jurisdiction over such person in all matters relating to security. The Commissioner shall thereupon confine such person in the Delaware Psychiatric Center, or other suitable place for the residential treatment of criminally culpable persons with a mental illness under the age of 18 who have been found nonamenable to the processes of Family Court. Although such person shall remain under the jurisdiction of the Department of Correction, decisions directly related to treatment for the mental illness for individuals placed at the Delaware Psychiatric Center, shall be the joint responsibility of the Director of the Division of Substance Abuse and Mental Health and those persons at the Delaware Psychiatric Center who are directly responsible for such treatment. The Delaware Psychiatric Center, or any other residential treatment facility to which the defendant is committed by the Commissioner, shall have the authority to discharge the defendant from the facility and return the defendant to the physical custody of the Commissioner whenever the facility believes that such a discharge is in the best interests of the defendant. The offender may, by written statement, refuse to take any drugs which are prescribed for treatment of the offender’s mental illness; except when such a refusal will endanger the life of the offender, or the lives or property of other persons with whom the offender has contact.
(c) When the Psychiatric Center or other treating facility designated by the Commissioner discharges an offender prior to the expiration of such person’s sentence, the treating facility shall transmit to the Commissioner and to the Parole Board a report on the condition of the offender which contains the clinical facts; the diagnosis; the course of treatment, and prognosis for the remission of symptoms; the potential for the recidivism, and for danger to the offender’s own person or the public; and recommendations for future treatment. Where an offender under this section is sentenced to the Psychiatric Center or other facility, the offender shall not be eligible for any privileges not permitted in writing by the Commissioner (including escorted or unescorted on-grounds or off-grounds privileges) until the offender has become eligible for parole. Where the court finds that the offender, before completing the sentence, no longer needs nor could benefit from treatment for the offender’s mental illness, the offender shall be remanded to the Department of Correction. The offender shall have credited toward the sentence the time served at the Psychiatric Center or other facility.
(d) No individual under the age of 18 shall be placed at the Delaware Psychiatric Center. Nothing herein shall prevent either the transfer to or placement at the Delaware Psychiatric Center any person who has reached the age of 18 following any finding of guilty, but mentally ill.
63 Del. Laws, c. 328,
§
2;
64 Del. Laws, c. 467,
§
8;
70 Del. Laws, c. 186,
§
1;
70 Del. Laws, c. 550,
§
1;
73 Del. Laws, c. 41,
§
1;
76 Del. Laws, c. 322,
§§
1-3;
78 Del. Laws, c. 224,
§
9;
79 Del. Laws, c. 371,
§
9;
Notes of Decisions
Cited in
27
cases (
15 in the last 5 years), 2012–2026 · leading case:
Shah v. Danberg, 855 F. Supp. 2d 215 (D. Del. 2012).
Shah v. Danberg, 855 F. Supp. 2d 215 (D. Del. 2012).
· cites it 17× “For the following reasons, the court will: (1) dismiss all claims, with the exception of the claim challenging the constitutionality of 11 Del. C. § 408 as applied, against Carl C.”
Taylor v. State, 213 A.3d 560 (Del. 2019).
“40 If a defendant pleads guilty but mentally ill to a crime, the plea "shall be accepted when the requirements of [ Rule 11 ] applicable to a plea of guilty are met and the court finds that the defendant was mentally ill at the time of the offense, in accordance with 11 Del. C.…”
Smith v. Delaware, 236 F. Supp. 3d 882 (D. Del. 2017).
“He *885 alleges that he is being denied his rights under 11 Del. C. §§ 408 3 and 6525 4 and as a class member of a settlement agreement entered into between the U.”
State v. Dillard (Del. Super. Ct. 2023).
· cites it 5× “4 On April 4, 2012, the State filed a Motion for a Psychological Evaluation pursuant to 11 Del. C. § 408 and Superior Court Criminal Rule 12.”
Smith v. State (Del. Super. Ct. 2025).
· cites it 5× “Analysis The express language of 11 Del. C. § 408 requires the Court to review the defendant’s presentence investigation report and hold a “sole hearing” on the issue of the defendant’s mental illness prior to accepting the defendant’s GBMI plea.”
Taylor v. State (Del. 2019).
· cites it 4× “40 If a defendant pleads guilty but mentally ill to a crime, the plea “shall be accepted when the requirements of [Rule 11] applicable to a plea of guilty are met and the court finds that the defendant was mentally ill at the time of the offense, in accordance with 11 Del. C. §…”
State v. Shah (Del. Super. Ct. 2023).
· cites it 4× “State4 be applied retroactively and Defendant’s conviction and sentence should be reversed, because Defendant’s GBMI plea did not comply with the requirements of 11 Del. C. § 408(a), since Defendant was not permitted to withdraw his GBMI plea before his second GBMI hearing.”
Lindsey v. State (Del. 2023).
· cites it 4× “See 11 Del. C. § 408(a) (effective June 11, 2001 to July 8, 2008) (“Where a defendant’s defense is based upon allegations which, if true, would be grounds for a verdict of ‘guilty, but mentally ill’ or the defendant desires to enter a plea to that effect, no finding of ‘guilty,…”
State v. Merritt (Del. Super. Ct. 2024).
· cites it 4× “This 28th day of February 2024, upon consideration of Defendant Idrees Merritt’s (“Merritt”) Request for an Immediate Hearing Under 11 Del. C. § 408,1 treated as a Motion for Postconviction Relief, and the record in this matter, it appears to the Court that: 1.”
State v. Shah (Del. Super. Ct. 2023).
· cites it 3× “State, the Delaware Supreme Court also offered the following guidance for the proper procedures to follow when accepting a guilty but mentally ill plea: For future guidance, we interpret [11 Del. C. § 408(a)] as follows. A defendant can plead guilty but mentally ill to a crime,…”
Shah v. Coupe (Del. 2015).
· cites it 4× “9 (8) Having reviewed the record in this case in light of the above legal principles, we conclude that the Superior Court did not err when it dismissed Shah’s petition for a writ of mandamus.”
State v. Aizupitis (Del. Super. Ct. 2019).
· cites it 2× “Since that time, Aizupitis has been confined at the Delaware Psychiatric Center, consistent with 11 Del. C. § 408. In February 1999, Aizupitis filed a motion for postconviction relief.”
— 11 Del. C. § 408(a) — 12 cases
State v. Shah (Del. Super. Ct. 2023).
“State4 be applied retroactively and Defendant’s conviction and sentence should be reversed, because Defendant’s GBMI plea did not comply with the requirements of 11 Del. C. § 408(a), since Defendant was not permitted to withdraw his GBMI plea before his second GBMI hearing.”
Lindsey v. State (Del. 2023).
“See 11 Del. C. § 408(a) (effective June 11, 2001 to July 8, 2008) (“Where a defendant’s defense is based upon allegations which, if true, would be grounds for a verdict of ‘guilty, but mentally ill’ or the defendant desires to enter a plea to that effect, no finding of ‘guilty,…”
Taylor v. State (Del. 2019).
“40 If a defendant pleads guilty but mentally ill to a crime, the plea “shall be accepted when the requirements of [Rule 11] applicable to a plea of guilty are met and the court finds that the defendant was mentally ill at the time of the offense, in accordance with 11 Del. C. §…”
State v. Shah (Del. Super. Ct. 2023).
“State, the Delaware Supreme Court also offered the following guidance for the proper procedures to follow when accepting a guilty but mentally ill plea: For future guidance, we interpret [11 Del. C. § 408(a)] as follows. A defendant can plead guilty but mentally ill to a crime,…”
Smith v. State (Del. Super. Ct. 2025).
“Analysis The express language of 11 Del. C. § 408 requires the Court to review the defendant’s presentence investigation report and hold a “sole hearing” on the issue of the defendant’s mental illness prior to accepting the defendant’s GBMI plea.”
— 11 Del. C. § 408(b) — 9 cases
Shah v. Danberg, 855 F. Supp. 2d 215 (D. Del. 2012).
“For the following reasons, the court will: (1) dismiss all claims, with the exception of the claim challenging the constitutionality of 11 Del. C. § 408 as applied, against Carl C.”
Shah v. Coupe (Del. 2015).
“9 (8) Having reviewed the record in this case in light of the above legal principles, we conclude that the Superior Court did not err when it dismissed Shah’s petition for a writ of mandamus.”
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