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| Public Act 095-0296 |
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AN ACT concerning criminal law.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Code of Criminal Procedure of 1963 is | ||||
amended by changing Sections 104-17 and 104-31 as follows:
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(725 ILCS 5/104-17) (from Ch. 38, par. 104-17)
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Sec. 104-17. Commitment for Treatment; Treatment Plan.
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(a) If the defendant
is eligible to be or has been released | ||||
on bail or on his own recognizance,
the court shall select the | ||||
least physically restrictive form of treatment
therapeutically | ||||
appropriate and consistent with the treatment plan.
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(b) If the defendant's disability is mental, the court may | ||||
order him placed
for treatment in the custody of the Department | ||||
of Human Services, or the court may order him placed in
the | ||||
custody of any other
appropriate public or private mental | ||||
health facility or treatment program
which has agreed to | ||||
provide treatment to the defendant. If the defendant
is placed | ||||
in the custody of the Department of Human Services, the | ||||
defendant shall be placed in a
secure setting unless the
court | ||||
determines that
there are compelling reasons why such placement | ||||
is not necessary. During
the period of time required to | ||||
determine the appropriate placement the
defendant shall remain | ||||
in jail. Upon completion of the placement process, the
sheriff | ||||
shall be notified and shall transport the defendant to the | ||
designated
facility. The placement may be ordered either on an | ||
inpatient or an outpatient
basis.
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(c) If the defendant's disability is physical, the court | ||
may order him
placed under the supervision of the Department of | ||
Human
Services
which shall place and maintain the defendant in | ||
a suitable treatment facility
or program, or the court may | ||
order him placed in an appropriate public or
private facility | ||
or treatment program which has agreed to provide treatment
to | ||
the defendant. The placement may be ordered either on an | ||
inpatient or
an outpatient basis.
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(d) The clerk of the circuit court shall transmit to the | ||
Department, agency
or institution, if any, to which the | ||
defendant is remanded for treatment, the
following:
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(1) a certified copy of the order to undergo treatment;
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(2) the county and municipality in which the offense | ||
was committed;
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(3) the county and municipality in which the arrest | ||
took place; and | ||
(4) a copy of the arrest report, criminal charges, | ||
arrest record, jail record, and the report prepared under | ||
Section 104-15; and
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(5)
(4) all additional matters which the Court directs | ||
the clerk to transmit.
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(e) Within 30 days of entry of an order to undergo | ||
treatment, the person
supervising the defendant's treatment | ||
shall file with the court, the State,
and the defense a report | ||
assessing the facility's or program's capacity
to provide | ||
appropriate treatment for the defendant and indicating his | ||
opinion
as to the probability of the defendant's attaining | ||
fitness within a period
of one year from the date of the | ||
finding of unfitness. If the report indicates
that there is a | ||
substantial probability that the defendant will attain fitness
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within the time period, the treatment supervisor shall also | ||
file a treatment
plan which shall include:
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(1) A diagnosis of the defendant's disability;
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(2) A description of treatment goals with respect to | ||
rendering the
defendant
fit, a specification of the | ||
proposed treatment modalities, and an estimated
timetable | ||
for attainment of the goals;
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(3) An identification of the person in charge of | ||
supervising the
defendant's
treatment.
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(Source: P.A. 89-507, eff. 7-1-97.)
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(725 ILCS 5/104-31) (from Ch. 38, par. 104-31)
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Sec. 104-31. No defendant placed in a secure setting of the | ||
Department of
Human Services pursuant to
the provisions of | ||
Sections 104-17, 104-25, or 104-26 shall be permitted outside
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the facility's
housing unit unless escorted or accompanied by | ||
personnel of the Department of
Human Services.
Any defendant | ||
placed in a secure setting pursuant to this Section,
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transported to court hearings or other necessary appointments
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off facility grounds
by personnel of
the Department of Human | ||
Services, may 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
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shall not constitute restraint as defined in the Mental Health | ||
and
Developmental Disabilities Code.
Nor shall
such defendant
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be permitted any off-grounds privileges, either with or without | ||
escort by
personnel of the Department of Human Services,
or any | ||
unsupervised on-ground privileges, unless such off-grounds or
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unsupervised on-grounds 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
or | ||
others. Whenever the court receives a report from the | ||
supervisor of the defendant's treatment recommending the | ||
defendant for any off-grounds or unsupervised on-grounds | ||
privileges, or placement in a non-secure setting, the court | ||
shall set the matter for a first hearing within 21 days unless | ||
good cause is demonstrated why the hearing cannot be held.
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(Source: P.A. 89-507, eff. 7-1-97; 90-105, eff. 7-11-97.)
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Section 10. The Unified Code of Corrections is amended by | ||
changing Section 5-2-4 as follows:
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(730 ILCS 5/5-2-4) (from Ch. 38, par. 1005-2-4)
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Sec. 5-2-4. Proceedings after Acquittal by Reason of | ||
Insanity.
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(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
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whether he is in need of mental health
services. The order
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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 unless the Court
determines that there are | ||
compelling reasons why such placement is not
necessary. With | ||
the court order for evaluation shall be sent a copy of the | ||
arrest report, criminal charges, arrest record, jail record, | ||
and any report prepared under Section 115-6 of the Code of | ||
Criminal Procedure of 1963.
After the evaluation and during the | ||
period of time required to
determine the appropriate placement, | ||
the defendant shall
remain in jail.
Upon completion of the | ||
placement process the sheriff shall be notified and
shall | ||
transport the defendant to the designated facility.
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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.
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If the defendant is found to be in
need
of mental health | ||
services on an inpatient care basis, the Court shall order the
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defendant to the Department of Human Services.
The defendant | ||
shall be placed in a secure setting unless the Court determines
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that there are compelling reasons why such placement is not | ||
necessary. 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
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unsupervised
on-grounds privileges as provided
herein.
Any | ||
defendant placed in a secure setting pursuant to this Section,
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transported to court hearings or other necessary appointments
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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
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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
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shall order the defendant discharged from custody.
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(a-1)
(1) Definitions. : For the purposes of this Section:
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(A) (Blank).
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(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
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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.
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(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.
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(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
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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
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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
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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
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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
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petition, the Court shall hold a hearing consistent with | ||
the provisions of
this paragraph (a), this paragraph (a-1),
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and paragraph (f) of this Section, shall determine
whether | ||
the defendant should continue to be subject to the terms of
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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
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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
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extension of conditional release shall only apply to | ||
defendants
conditionally released on or after August 8, | ||
2003
the effective date of
this amendatory Act
of the 93rd | ||
General Assembly. However the extension
provisions of | ||
Public Act 83-1449 apply only to defendants charged
with a | ||
forcible felony.
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(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.
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(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,
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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 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
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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
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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.
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(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.
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(1) The Court shall appoint as counsel the public | ||
defender or an
attorney licensed by this State.
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(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
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amount as the defendant is unable to pay from funds | ||
appropriated by the
General Assembly for that purpose.
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(d) When the facility director determines that:
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(1) the defendant is no longer
in need of mental health | ||
services on an inpatient basis; and
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(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
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(3) the defendant no longer requires placement in a | ||
secure setting;
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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.
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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:
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(i) (blank); or
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(ii) in need of mental health services in the form of | ||
inpatient care; or
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(iii) in need of mental health services but not subject | ||
to inpatient care;
or
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(iv) no longer in need of mental health services; or
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(v) no longer requires placement in a secure setting.
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Upon finding by the Court, the Court shall enter its | ||
findings and such
appropriate order as provided in subsections
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subsection (a) and (a-1) of this Section.
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(e) A defendant admitted pursuant to this Section, or any | ||
person on
his behalf, may file a petition for treatment plan | ||
review, transfer to a
non-secure setting within the Department | ||
of Human Services
or discharge or conditional release under the
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standards of this Section in the Court which rendered the | ||
verdict. Upon
receipt of a petition for treatment plan review, | ||
transfer to a non-secure
setting 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.
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(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
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the time of the hearing.
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(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:
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(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;
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(2) Whether the person appreciates the criminality of | ||
conduct similar
similiar to
the conduct for which he or she | ||
was originally charged in this matter;
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(3) the current state of
the defendant's illness;
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(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;
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(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.
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(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 (1)
| ||
(D) of subsection (a-1)
(a) 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 (1) (D) | ||
of subsection (a-1)
(a). 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, after the entry of an | ||
order of transfer
to a non-secure setting of the Department of | ||
Human Services or discharge or
conditional release, transmit
a | ||
certified
copy of the order to the Department of Human | ||
Services, and the sheriff of the
county from which the
| ||
defendant was
admitted.
The Clerk of the Court shall also | ||
transmit a certified copy of the order of
discharge or | ||
conditional release 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. 93-78, eff. 1-1-04; 93-473, eff. 8-8-03; revised | ||
9-15-06.)
| ||
Section 99. Effective date. This Act takes effect upon | ||
becoming law.
| ||