Public Act 100-0424
 
SB1276 EnrolledLRB100 00366 RLC 10370 b


  
    AN ACT concerning criminal law.
  
 
    Be it enacted by the People of the State of Illinois,
 
represented in the General Assembly:
  
 
 
    Section 5. The Code of Criminal Procedure of 1963 is 
amended  by changing Section 104-15 as follows:
 


    (725 ILCS 5/104-15)  (from Ch. 38, par. 104-15)




    Sec. 104-15. Report. 
    (a) The person or persons conducting an examination
of the 
defendant, pursuant to paragraph (a) or (b) of Section 104-13 
shall
submit a written report to the court, the State, and the 
defense within
30 days of the date of the order.  The
report 
shall include:

        (1) A diagnosis and an explanation as to how it was 
    reached and the facts
upon which it is based;

        (2) A description of the defendant's mental or physical 
    disability, if
any; its severity; and an opinion as to 
    whether and to what extent it impairs
the defendant's 
    ability to understand the nature and purpose of
the 
    proceedings against him or to assist in his defense, or 
    both.

    (b) If the report indicates that the defendant is not fit 
to stand trial
or to plead because of a disability, the report 
shall include an opinion
as to the likelihood of the defendant 
attaining fitness within a period of time from the date of the 
finding of unfitness one year if
provided with a course of 
treatment. For a defendant charged with a felony, the period of 
time shall be one year. For a defendant charged with a 
misdemeanor, the period of time shall be no longer than the 
maximum term of imprisonment for the most serious offense.  If 
the person or persons preparing
the report are unable to form 
such an opinion, the report shall state the
reasons  therefor.  
The report may include a general description of the
type of 
treatment needed and of the least physically restrictive form 
of
treatment therapeutically appropriate.

    (c) The report shall indicate what information, if any, 
contained therein
may be harmful to the mental condition of the 
defendant if made known to him.

    (d) In addition to the report, a person retained or 
appointed by the State or the defense to conduct an examination 
shall, upon written request, make his or her notes, other 
evaluations reviewed or relied upon by the testifying witness, 
and any videotaped interviews available to another examiner of 
the defendant. All forensic interviews conducted by a person 
retained  or appointed by the State or the defense shall be 
videotaped unless doing so would be impractical. In the event 
that the interview is not videotaped, the examiner may still 
testify as to the person's fitness and the court may only 
consider the lack of compliance in according the weight and not 
the admissibility of the expert testimony. An examiner may use 
these materials as part of his or her diagnosis and explanation 
but shall not otherwise disclose the contents, including at a 
hearing before the court, except as otherwise provided in 
Section 104-14 of this Code. 
(Source: P.A. 98-1025, eff. 1-1-15.)

 
    Section 10. The Unified Code of Corrections is amended  by 
changing Section 5-2-4 as follows:
 



    (730 ILCS 5/5-2-4)  (from Ch. 38, par. 1005-2-4)



    Sec. 5-2-4. Proceedings after Acquittal by Reason of 
Insanity. 

    (a) After a finding or verdict of not guilty by reason of 
insanity
under Sections 104-25, 115-3 or 115-4 of the Code of 
Criminal Procedure
of 1963, the defendant shall be ordered to 
the Department of Human Services for
an evaluation as to

whether he is in need of mental health
services.  The order

shall specify whether the evaluation shall be conducted on an 
inpatient or
outpatient basis. If the evaluation is to be 
conducted on an inpatient
basis, the defendant shall be placed 
in a secure setting. With the court order for evaluation shall 
be sent a copy of the arrest report, criminal charges, arrest 
record, jail record, any report prepared under Section 115-6 of 
the Code of Criminal Procedure of 1963, and any victim impact 
statement prepared under Section 6 of the Rights of Crime 
Victims and Witnesses Act.
After the evaluation and during the 
period of time required to
determine the appropriate placement, 
the defendant shall
remain in jail.
Individualized placement 
evaluations by the Department of Human Services determine the 
most appropriate setting for forensic treatment based upon a 
number of factors including mental health diagnosis, proximity 
to surviving victims, security need, age, gender, and proximity 
to family. Upon completion of the placement  process the sheriff 
shall be notified and
shall transport the defendant to the 
designated facility.

    The Department shall provide the Court with a report of its 
evaluation
within 30 days of the date of this order.  The Court 
shall hold a hearing
as provided under the Mental Health and 
Developmental Disabilities Code to
determine if the individual 
is:
(a)
in need of mental health services on an inpatient 
basis; (b) in
need of
mental health services on an outpatient 
basis; (c) a person not in
need of
mental health services.  The 
Court shall enter its findings.

    If the defendant is found to be in
need
of mental health 
services on an inpatient care basis, the Court shall order the

defendant to the Department of Human Services.
The defendant 
shall be placed in a secure setting. Such
defendants placed in 
a secure setting shall not be permitted outside the
facility's 
housing unit unless escorted or accompanied by personnel of the

Department of Human Services or with the prior approval of the 
Court for
unsupervised
on-grounds privileges as provided

herein.
Any defendant placed in a secure setting pursuant to 
this Section,
transported to court hearings or other necessary 
appointments
off facility grounds
by personnel of
the 
Department of Human Services, shall be
placed in security 
devices
or otherwise secured during the period of 
transportation to assure
secure transport of the defendant and 
the safety of Department
of Human Services personnel and 
others.  These security measures
shall not constitute restraint 
as defined in the Mental Health and
Developmental Disabilities 
Code.
If the defendant is found to be in need of mental health 
services,
but not on an inpatient care basis, the Court shall 
conditionally release
the defendant, under such conditions as 
set forth in this Section as will
reasonably assure the 
defendant's satisfactory progress and participation
in 
treatment or
rehabilitation and the safety of the defendant and 
others.  If the
Court
finds the person not in need of mental 
health services, then the Court
shall order the defendant 
discharged from custody.

    (a-1) Definitions.  For the purposes of this Section:

        (A) (Blank).

        (B) "In need of mental health services on an inpatient 
    basis" means: a
defendant who has been found not guilty by 
    reason of insanity but who due to mental illness is

    reasonably expected to inflict
serious physical harm upon 
    himself or another and who would benefit from
inpatient 
    care or is in need of inpatient care.

        (C) "In need of mental health services on an outpatient 
    basis" means:
a defendant who has been found not guilty by 
    reason of insanity who is not in need of mental health 
    services on
an inpatient basis, but is in need of 
    outpatient care, drug and/or alcohol
rehabilitation 
    programs, community adjustment programs, individual, 
    group,
or family therapy, or chemotherapy.

        (D) "Conditional Release" means: the release from 
    either the custody
of the Department of Human Services
or 
    the custody of the Court of a person who has been found not 
    guilty by
reason of insanity under such conditions as the 
    Court may impose which
reasonably assure the defendant's 
    satisfactory progress in
treatment or habilitation and the 
    safety of the defendant and others.  The
Court shall 
    consider such terms and conditions which may include, but 
    need
not be limited to, outpatient care, alcoholic and drug 
    rehabilitation programs,
community adjustment programs, 
    individual, group, family, and chemotherapy,
random 
    testing to ensure the defendant's timely and continuous 
    taking of any
medicines prescribed
to control or manage his 
    or her conduct or mental state, and
periodic checks with 
    the legal authorities and/or the Department of Human

    Services.
 The Court may order as a condition of conditional 
    release that the
defendant not contact the victim of the 
    offense that
resulted in the finding or
verdict of not 
    guilty by reason of insanity or any other person.  The Court 
    may
order the
Department of
Human Services to provide care 
    to any
person conditionally released under this Section.  
    The Department may contract
with any public or private 
    agency in order to discharge any responsibilities
imposed 
    under this Section.  The Department shall monitor the 
    provision of
services to persons conditionally released 
    under this Section and provide
periodic reports to the 
    Court concerning the services and the condition of the

    defendant.
Whenever a person is conditionally released 
    pursuant to this Section, the
State's Attorney for the 
    county in which the hearing is held shall designate in

    writing the name, telephone number, and address of a person 
    employed by him or
her who
shall be notified in the event 
    that either the reporting agency or the
Department decides 
    that the conditional release of the defendant should be

    revoked or modified pursuant to subsection (i) of this 
    Section. Such
conditional release shall be for
a period of 
    five years. However, the defendant, the person or
facility

    rendering the treatment, therapy, program or outpatient 
    care, the
Department, or the
State's Attorney may petition 
    the Court for an extension of
the conditional
release 
    period for an additional 5 years. Upon receipt of such a

    petition, the Court shall hold a hearing consistent with 
    the provisions of
 paragraph (a), this paragraph (a-1),
and 
    paragraph (f) of this Section, shall determine
whether the 
    defendant should continue to be subject to the terms of

    conditional release, and shall enter an order either 
    extending the
defendant's period of conditional release 
    for an additional
5
year period or discharging the 
    defendant.
 Additional 5-year periods of conditional 
    release may be ordered following a
hearing as provided in 
    this Section.  However,
in no event shall the defendant's

    period of conditional release continue beyond the maximum 
    period of
commitment ordered by the Court pursuant to 
    paragraph (b) of this Section. These provisions for

    extension of conditional release shall only apply to 
    defendants
conditionally released on or after August 8, 
    2003. However the extension
provisions of Public Act 
    83-1449 apply only to defendants charged
with a forcible 
    felony.

        (E) "Facility director" means the chief officer of a 
    mental health or
developmental disabilities facility or 
    his or her designee or the supervisor of
a program of 
    treatment or habilitation or his or her designee.  
    "Designee" may
include a physician, clinical psychologist, 
    social worker, nurse, or clinical
professional counselor.

    (b) If the Court finds the defendant in need of mental 
health services on an
inpatient basis, the
admission, 
detention, care, treatment or habilitation, treatment plans,

review proceedings, including review of treatment and 
treatment plans, and
discharge of the defendant after such 
order shall be under the
Mental Health and Developmental 
Disabilities Code, except that the
initial order for admission 
of a defendant acquitted of a felony by
reason of insanity 
shall be for an indefinite period of time. Such period
of 
commitment shall not exceed the maximum
length of time that the 
defendant would have been required to serve,
less credit for 
good behavior as provided in Section 5-4-1 of the Unified
Code 
of Corrections, before becoming eligible for
release had
he 
been convicted of and received the maximum sentence for the 
most
serious crime for which he has been acquitted by reason of 
insanity. The
Court shall determine the maximum period of 
commitment by an appropriate
order. During  this period of time, 
the defendant shall not be permitted
to be in the community in 
any manner, including but not limited to off-grounds

privileges, with or without escort by personnel of the 
Department of Human
Services, unsupervised on-grounds 
privileges,
discharge or conditional or temporary release, 
except by a plan as provided in
this Section.  In no event shall 
a defendant's continued unauthorized
absence be a basis for 
discharge.  Not more than 30 days after admission
and every 90 
60 days thereafter so long as the initial order
remains in 
effect, the facility director shall file a treatment plan 
report
in writing with the court
and forward a copy of the 
treatment plan report to the clerk of the
court, the State's 
Attorney, and the defendant's attorney, if the defendant is

represented by counsel,
or to a person authorized by
the 
defendant under the
Mental Health and Developmental 
Disabilities Confidentiality Act to be sent a
copy of the 
report.  The report shall include an opinion
as to whether the

defendant is currently in need of mental
health services on an 
inpatient basis or in need of mental health services
on
an 
outpatient basis.  The report shall also summarize the basis for 
those
findings and provide a current summary of the following 
items from the
treatment plan: (1) an assessment of the 
defendant's treatment needs, (2) a
description of the services 
recommended for treatment, (3) the goals of each
type of 
element of service, (4) an anticipated timetable for the 
accomplishment
of the goals, and (5) a designation of the 
qualified professional responsible
for the implementation of 
the plan.
The report may also include unsupervised on-grounds

privileges, off-grounds privileges (with or without escort by 
personnel of the
Department of Human Services), home visits and

participation in work
programs, but only where such privileges 
have been approved by specific court
order, which order may 
include such conditions on the defendant as the
Court may deem 
appropriate and necessary to reasonably assure the defendant's

satisfactory progress in treatment and the safety of the 
defendant and others.

    (c) Every defendant acquitted of a felony by reason of 
insanity and
subsequently found to be in need of
mental health 
services shall be represented by counsel in all proceedings 
under
this Section and under the Mental Health and 
Developmental Disabilities Code.

        (1) The Court shall appoint as counsel the public 
    defender or an
attorney licensed by this State.

        (2) Upon filing with the Court of a verified statement 
    of legal
services rendered by the private attorney 
    appointed pursuant to
paragraph (1) of this subsection, the 
    Court shall determine a reasonable
fee for such services.  
    If the defendant is unable to pay the fee, the
Court shall 
    enter an order upon the State to pay the entire fee or such

    amount as the defendant is unable to pay from funds 
    appropriated by the
General Assembly for that purpose.

    (d) When the facility director determines that: 

        (1) the defendant is no longer
in need of mental health 
    services on an inpatient basis; and

        (2) the defendant may be conditionally released 
    because he
or she is still in need of mental health 
    services or that the defendant
may be discharged as not in 
    need of any mental health services; or

        (3) (blank);

the facility director shall give written notice
to the Court, 
State's Attorney and defense attorney.
Such notice shall set 
forth in detail the basis for the recommendation of
the 
facility director, and specify clearly the recommendations, if 
any,
of the facility director, concerning conditional release.

Any recommendation for conditional release shall include an 
evaluation of
the defendant's need for psychotropic 
medication, what provisions should be
made, if any, to ensure 
that the defendant will continue to receive
psychotropic 
medication following discharge, and what provisions should be 
made
to assure the safety of the defendant and others in the 
event the defendant is
no longer receiving psychotropic 
medication.
Within 30 days of
the notification by the facility 
director, the Court shall set a hearing and
make a finding as 
to whether the defendant is:

        (i) (blank); or

        (ii) in need of mental health services in the form of 
    inpatient care; or

        (iii) in need of mental health services but not subject 
    to inpatient care;
or

        (iv) no longer in need of mental health services; or

        (v) (blank).

    Upon finding by the Court, the Court shall enter its 
findings and such
appropriate order as provided in subsections 
(a) and (a-1) of this Section.

    (e) A defendant admitted pursuant to this Section, or any 
person on
his behalf, may  file a petition for treatment plan 
review
or discharge or conditional release under the
standards 
of this Section in the Court which rendered the verdict.  Upon

receipt of a petition for treatment plan review or discharge or 
conditional release, the Court shall set a hearing to
be held 
within 120 days.  Thereafter, no new petition
may be filed for 
180 days
without leave of the Court.

    (f) The Court shall direct that notice of the time and 
place of the
hearing be served upon the defendant, the facility 
director, the State's
Attorney, and the defendant's attorney. 
If requested by either the State or the
defense or if the Court 
feels it is appropriate, an impartial examination
of the 
defendant by a psychiatrist or clinical psychologist as defined 
in
Section 1-103 of the Mental Health and Developmental 
Disabilities Code who
is not in the employ of the Department of 
Human Services shall be ordered, and
the report considered at

the time of the hearing.

    (g) The findings of the Court shall be established by clear 
and
convincing evidence.  The burden of proof and the burden of 
going forth
with the evidence rest with the defendant or any 
person on the defendant's
behalf when a hearing is held to 
review
a petition filed by or on
behalf of the defendant.  The 
evidence shall be presented in open
Court
with the right of 
confrontation and cross-examination.
Such evidence may 
include, but is not limited to:

        (1) whether the defendant appreciates the harm caused 
    by the defendant to
others and the community by his or her 
    prior
conduct
that resulted in the finding of not guilty by 
    reason of insanity;

        (2) Whether the person appreciates the criminality of 
    conduct similar to
the conduct for which he or she was 
    originally charged in this matter;

        (3) the current state of
the defendant's illness;

        (4) what, if any, medications the defendant is taking 
    to
control his or her mental illness;

        (5) what, if any, adverse physical side effects
the 
    medication has on the defendant;

        (6) the length of time it would take for the 
    defendant's mental health to
deteriorate
if
the
defendant 
    stopped taking prescribed medication;

        (7) the defendant's history or potential for alcohol 
    and drug abuse;

        (8) the defendant's past criminal history;

        (9) any specialized physical or medical needs of the 
    defendant;

        (10) any family participation or involvement expected 
    upon release and
what is the willingness and ability of the 
    family to participate or be
involved;

        (11) the defendant's potential to be a danger to 
    himself, herself, or
others; and

        (12) any other factor or factors the Court deems 
    appropriate.

    (h) Before the court orders that the defendant be 
discharged or
conditionally released, it shall order the 
facility director to establish a
discharge plan that includes a 
plan for the defendant's shelter, support, and
medication.  If 
appropriate, the court shall order that the facility director

establish a program to train the defendant in self-medication 
under standards
established by the Department of Human 
Services.
If the Court finds, consistent with the provisions of 
this Section,
that the defendant is no longer in need of mental

health services it shall order the facility director to 
discharge the
defendant.  If the Court finds, consistent with 
the provisions of this
Section, that the defendant is in need 
of mental
health services, and no longer in need of inpatient 
care, it shall order
the facility director to release the 
defendant under such conditions as the
Court deems appropriate 
and as provided by this Section. Such conditional
release shall 
be imposed for a period of 5 years as provided in
paragraph
(D) 
of subsection (a-1) and shall be
subject
to later modification 
by the Court as provided by this Section. If the
Court finds 
consistent with the provisions in this Section that the

defendant is in
need of mental health services on an inpatient 
basis, it shall order the
facility director not to discharge or 
release the defendant in accordance
with paragraph (b) of this 
Section.

    (i) If within the period of the defendant's conditional 
release
the State's Attorney determines that the defendant has 
not fulfilled the
conditions of his or her release, the State's 
Attorney may petition the
Court
to
revoke or modify the 
conditional release of the defendant.  Upon the filing of
such 
petition the defendant may be remanded to the custody of the 
Department,
or to any other mental health facility designated 
by the Department, pending
the resolution of the petition.  
Nothing in this Section shall prevent the
emergency admission 
of a defendant pursuant to Article VI of Chapter III of the

Mental Health
and Developmental Disabilities Code or the 
voluntary admission of the defendant
pursuant to Article IV of 
Chapter III of the Mental Health and Developmental
Disabilities

Code. If
the Court determines, after hearing evidence, that the 
defendant has
not fulfilled the conditions of release, the 
Court shall order a hearing
to be held consistent with the 
provisions of paragraph (f) and (g) of this
Section. At such 
hearing, if the Court finds that the defendant is in need of 
mental health services on an inpatient
basis, it shall enter an 
order remanding him or her to the Department of
Human Services 
or other
facility. If the defendant is remanded to the 
Department of Human Services, he
or she shall be placed in
a 
secure setting unless the Court
determines that there are 
compelling reasons that such placement is not
necessary. If the

Court finds that the defendant  continues to be in need of 
mental health
services but not on an inpatient basis, it may 
modify the conditions of
the original release in order to 
reasonably assure the defendant's satisfactory
progress in 
treatment and his or her safety and the safety of others in

accordance with the standards established in paragraph (D) of 
subsection (a-1). Nothing in
this Section shall limit a Court's 
contempt powers or any other powers of a
Court.

    (j) An order of admission under this Section does not 
affect the
remedy of habeas corpus.

    (k) In the event of a conflict between this Section and the 
Mental Health
and Developmental Disabilities Code or the Mental 
Health and Developmental
Disabilities Confidentiality Act, the 
provisions of this Section shall govern.

    (l) This amendatory Act shall apply to all persons who have 
been found
not guilty by reason of insanity and who are 
presently committed to the
Department of Mental Health and 
Developmental Disabilities (now the
Department of Human 
Services).

    (m)
The Clerk of the Court shall transmit a certified copy 
of the order of
discharge or conditional release to the 
Department of Human Services, to the sheriff of the county from 
which the defendant was admitted, to the Illinois Department of 
State Police, to
the proper law enforcement agency for the 
municipality
where the offense took
place, and to the sheriff 
of the county into which the defendant is
conditionally 
discharged.  The Illinois Department of State Police shall

maintain a
centralized record of discharged or conditionally 
released defendants while
they are under court supervision for 
access and use of appropriate law
enforcement agencies.

(Source: P.A. 98-1025, eff. 8-22-14.)

 
 
    Section 99. Effective date. This Act takes effect January 
1, 2018.