HB3468 104TH GENERAL ASSEMBLY

LRB104 10125 RLC 20197 b

104TH GENERAL ASSEMBLY
State of Illinois
2025 and 2026
HB3468

Introduced 2/18/2025, by Rep. Terra Costa Howard

SYNOPSIS AS INTRODUCED:

See Index

Amends the Code of Criminal Procedure of 1963 concerning defendants found unfit to stand trial. Provides that if the defendant is remanded to the custody of the Department of Human Services for inpatient services, the defendant shall be placed in a secure setting. Provides that during the period of time required to determine bed and placement availability at the designated facility, the defendant shall remain in jail and the pretrial release provisions do not apply. Provides that no physician or other person employed by the Department of Human Services shall be ordered to perform, in the person's official capacity, an examination of the defendant's fitness. Provides that if the defendant with mental disabilities is ordered to outpatient treatment, the defendant shall be released from custody with instructions to contact the Department of Human Services to schedule the receipt of restoration services in the community. Provides that a defendant who either fails to arrange for the receipt of community restoration services or whom the Department reports has failed to comply in any other respect with the outpatient treatment order shall be remanded to the Department to receive inpatient services at a secure facility designated by the Department. Provides that the initial fitness report shall indicate what information, if any, contained in the report may be harmful to the mental condition of the defendant if made known to the defendant and the court may determine if the defendant is restricted from receiving the report. Provides that if the defendant is unfit due to a traumatic brain injury or organic brain disease such as Alzheimer's or dementia, or any other condition other than one treatable as a mental illness or developmental disability, the court may order the defendant placed in a suitable public or private treatment facility or program that has agreed to provide treatment to the defendant. Provides that no person who has not been determined to be unfit due to an identified condition may be placed in a facility operated by the Department of Human Services. Makes other changes. Defines terms.

A BILL FOR

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 Sections 104-10, 104-11, 104-13, 104-14, 104-15, 104-16, 104-17, 104-18, 104-19, 104-20, 104-21, 104-22, 104-23, 104-24, 104-25, and 104-26 and by adding Sections 102-24 and 102-25 as follows:

(725 ILCS 5/102-24 new)

Sec. 102-24. Mental condition or physical condition. "Mental condition" or "physical condition" means a condition that substantially impairs a person's thought, perception of reality, emotional process, judgment, behavior, or ability to communicate with counsel, or both, but does not include traumatic brain injury, organic brain disease such as dementia or Alzheimer's, alcohol or cannabis use, substance use disorder, or an abnormality manifested only by repeated criminal or otherwise antisocial behavior.

(725 ILCS 5/102-25 new)

Sec. 102-25. Treatment supervisor, supervisor of the defendant's treatment, person supervising the defendant's treatment, or qualified professional. "Treatment supervisor", "supervisor of the defendant's treatment", "person supervising the defendant's treatment", or "qualified professional" as referenced in Article 104 means the person in charge of overseeing fitness restoration for the defendant and may be a physician, physician assistant, psychiatrist, clinical psychologist, nurse practitioner, licensed clinical social worker, or nurse who is working under the supervision of a properly licensed physician, psychiatrist, or clinical psychologist. Persons with any of the above designations are deemed qualified to opine on the issue of fitness of the defendant.

(725 ILCS 5/104-10) (from Ch. 38, par. 104-10)

Sec. 104-10. Presumption of Fitness; Fitness Standard.) A defendant is presumed to be fit to stand trial or to plead, and be sentenced. A defendant is unfit if, because of the defendant's his mental or physical condition, the defendant he is unable to either understand the nature and purpose of the proceedings against the defendant him or to meaningfully assist in the defendant's his defense.

(Source: P.A. 81-1217.)

(725 ILCS 5/104-11) (from Ch. 38, par. 104-11)

Sec. 104-11. Raising Issue; Burden; Fitness Motions.) (a) The issue of the defendant's fitness for trial, to plead, or to be sentenced may be raised by the defense, the State or the Court at any appropriate time before a plea is entered or before, during, or after trial. When a bona fide bonafide doubt of the defendant's fitness is raised, the court shall order a determination of the issue by the county's expert before proceeding further.

However, no order entered pursuant to this subsection shall prevent further proceedings in the case. An expert so appointed shall examine the defendant and make a report as provided in Section 104-15. Upon the filing with the court of a verified statement of services rendered, the court shall enter an order directed to the county board to pay such expert a reasonable fee as stated in the order.

(b) (Blank). Upon request of the defendant that a qualified expert be appointed to examine him or her to determine prior to trial if a bonafide doubt as to his or her fitness to stand trial may be raised, the court, in its discretion, may order an appropriate examination. However, no order entered pursuant to this subsection shall prevent further proceedings in the case. An expert so appointed shall examine the defendant and make a report as provided in Section 104-15. Upon the filing with the court of a verified statement of services rendered, the court shall enter an order on the county board to pay such expert a reasonable fee stated in the order.

(c) When a bona fide bonafide doubt of the defendant's fitness has been raised, the burden of proving that the defendant is fit by a preponderance of the evidence and the burden of going forward with the evidence are on the State. However, the court may call its own witnesses and conduct its own inquiry.

(d) Following a finding of unfitness, the court may hear and rule on any pretrial motion or motions if the defendant's presence is not essential to a fair determination of the issues. A motion may be reheard upon a showing that evidence is available which was not previously available, due to the defendant's unfitness, when the motion was first decided.

(Source: P.A. 81-1217.)

(725 ILCS 5/104-13) (from Ch. 38, par. 104-13)

Sec. 104-13. Fitness examination.

(a) When the issue of fitness involves the defendant's mental condition, the court shall order an examination of the defendant by one or more licensed physicians, clinical psychologists, or psychiatrists chosen by the court. No physician, or other person clinical psychologist or psychiatrist employed by the Department of Human Services shall be ordered to perform, in the person's his official capacity, an examination under this subsection Section.

(b) If the issue of fitness involves the defendant's physical condition, the court shall appoint one or more physicians and in addition, such other experts as it may deem appropriate to examine the defendant and to report to the court regarding the defendant's condition. No physician or other person employed by the Department of Human Services shall be ordered to perform, in the person's official capacity, an examination under this subsection.

(c) An initial fitness examination ordered under this Section shall be given at the place designated by the person who will conduct the examination, except that if the defendant is being held in custody, the examination shall take place at such location as the court directs. Unless the person is already in the custody of the Department of Human Services, no No examinations under this Section shall be ordered to take place at mental health or developmental disabilities facilities operated by the Department of Human Services. If the defendant fails to keep appointments without reasonable cause or if the county expert person conducting the examination reports to the court that diagnosis requires hospitalization or extended observation, the court may order the defendant admitted to an appropriate facility for an examination, other than an initial fitness examination or placement a screening examination, for not more than 7 days. The court may, upon a showing of good cause, grant an additional 7 days to complete the examination and submit a diagnosis to the court.

(d) Release on pretrial release or on recognizance shall not be revoked and an application therefor shall not be denied on the grounds that an examination has been ordered, unless the court has determined that the defendant must remain in custody for the defendant's own safety or the safety of others.

(e) Upon request by the defense and if the defendant is indigent, the court may appoint, in addition to the expert or experts chosen pursuant to subsection (a) of this Section, a qualified expert selected by the defendant to examine the defendant him and to make a report as provided in Section 104-15. Upon the filing with the court of a verified statement of services rendered, the court shall enter an order on the county board to pay such expert a reasonable fee stated in the order.

(Source: P.A. 101-652, eff. 1-1-23.)

(725 ILCS 5/104-14) (from Ch. 38, par. 104-14)

Sec. 104-14. Use of Statements Made During Examination or Treatment.) (a) Statements made by the defendant and information gathered in the course of any examination or treatment ordered under Section 104-13, 104-17 or 104-20 shall not be admissible against the defendant unless the defendant he raises the defense of insanity or the defense of drugged or intoxicated condition, in which case they shall be admissible only on the issue of whether the defendant he was insane, drugged, or intoxicated. The refusal of the defendant to cooperate in such examinations shall not preclude the raising of the aforesaid defenses but shall preclude the defendant from offering expert evidence or testimony tending to support such defenses if the expert evidence or testimony is based upon the expert's examination of the defendant.

(b) Except as provided in paragraph (a) of this Section, no statement made by the defendant in the course of any examination or treatment ordered under Section 104-13, 104-17 or 104-20, which relates to the crime charged or to other criminal acts, shall be disclosed by persons conducting the examination or rendering the treatment, except to members of the examining or treating team. The defendant, however, may consent to the release of such information if the defendant is competent to do so. , without the informed written consent of the defendant, who is competent at the time of giving such consent.

(c) The court shall advise the defendant of the limitations on the use of any statements made or information gathered in the course of the fitness examination or subsequent treatment as provided in this Section. It shall also advise the defendant him that the defendant he may refuse to cooperate with the person conducting the examination, but that such his refusal may be admitted admissible into evidence on the issue of the defendant's his mental or physical condition.

(Source: P.A. 81-1217.)

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

Sec. 104-15. Initial fitness report Report.

(a) The person or persons conducting an initial fitness 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 the defendant him or to meaningfully assist in the defendant's his defense, or both.

(b) A person who, due to any of organic brain disease, alcohol or substance use, cannabis use, antisocial personality disorder or repeated criminal behavior may not be deemed unfit under this Section unless accompanied by a mental health or developmental disabilities diagnosis. Unfitness due to a mental condition may be found if the defendant would benefit from treatment in either a mental health or developmental disabilities facility. Unfitness due to a physical condition may be found if the defendant would benefit from treatment in a medical hospital or other residential care facility or program for the rehabilitation of persons with physical disabilities.

(c) (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 the statutory a period of time from the date of the finding of unfitness 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 Class A or Class B misdemeanor, the period of time shall be no longer than the maximum term of imprisonment for the most serious offense. Defendants charged with Class C misdemeanors, petty offenses, infraction of a municipal ordinance, or violation of the Illinois Vehicle Code are not eligible for fitness restoration services, unless the penalty may include incarceration for a period of 180 days or longer. If the person or persons preparing the initial fitness report are unable to form such an opinion, the report shall state the reasons therefor. The report shall may include a general description of the type of treatment needed and of the least physically restrictive form of treatment therapeutically appropriate. If the most serious charge facing the defendant is a misdemeanor and inpatient treatment is recommended, the report shall state reasons why outpatient treatment is not appropriate.

(d) (c) The initial fitness report shall indicate what information, if any, contained therein may be harmful to the mental condition of the defendant if made known to the defendant and the court may determine if the defendant is restricted from receiving the report. him.

(e) (d) In addition to the report, a person retained or appointed by the court State or the defense to conduct an initial fitness examination under Section 104-13 shall, upon written request, make the defendant's 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 court 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 the defendant's 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. 100-424, eff. 1-1-18.)

(725 ILCS 5/104-16) (from Ch. 38, par. 104-16)

Sec. 104-16. Fitness Hearing.) (a) The court court shall conduct a hearing to determine the issue of the defendant's fitness within 45 days of receipt of the final written report of the person or persons conducting the examination or upon conclusion of the matter then pending before it, subject to continuances allowed pursuant to Section 114-4 of this Act.

(b) Subject to the rules of evidence, matters admissible on the issue of the defendant's fitness include, but are not limited to, the following:

(1) The defendant's knowledge and understanding of the charge, the proceedings, the consequences of a plea, judgment or sentence, and the functions of the participants in the trial process;

(2) The defendant's ability to observe, recollect and relate occurrences, especially those concerning the incidents alleged, and to effectively communicate with counsel;

(3) The defendant's social behavior and abilities; orientation as to time and place; recognition of persons, places and things; and performance of motor processes.

(c) The defendant has the right to be present at every hearing on the issue of his fitness. The defendant's presence may be waived only if there is filed with the court a certificate stating that the defendant is physically unable to be present due to a disability and the reasons therefor. The certificate shall be signed by a licensed physician, physician assistant, or nurse practitioner who, within 7 days, has examined the defendant. A disability is a mental or physical condition that, in the opinion of a physician, physician assistant, or nurse practitioner, prevents the defendant from safely attending a hearing in person. The defendant's mere refusal to attend a hearing shall not by itself constitute a disability, regardless of the person's mental state.

(d) On the basis of the evidence before it, the court or jury shall determine whether the defendant is fit to stand trial, or to plead, or to be sentenced. If it finds that the defendant is unfit, the court or the jury shall determine whether there is substantial probability that the defendant, if provided with a course of treatment, will attain fitness within one year, except if the defendant is facing either a Class A or B misdemeanors, in which case the period of time shall be no longer than the maximum for the most serious offense. If the court or the jury finds that there is not a substantial probability, the court shall proceed as provided in Section 104-23. If such probability is found or if the court or the jury is unable to determine whether a substantial probability exists, the court shall order the defendant to undergo treatment for the purpose of rendering the defendant him fit. In the event that a defendant is ordered to undergo treatment with when there has been no initial determination as to the probability of his attaining fitness within the statutory timeframe, the court shall conduct a hearing as soon as possible following the receipt of the treatment supervisor's report filed pursuant to subsection (g) paragraph (d) of Section 104-17, unless the hearing is waived by the defense, and shall make a determination as to whether a substantial probability of attaining fitness within the statutory timeframe exists. If the court or the jury finds that there is not a substantial probability that the defendant may be rendered fit within the statutory limitations, the court shall proceed as provided in Section 104-23.

(e) An order finding the defendant unfit is a final order for purposes of appeal by the State or the defendant.

(Source: P.A. 81-1217.)

(725 ILCS 5/104-17) (from Ch. 38, par. 104-17)

Sec. 104-17. Commitment for treatment; treatment plan.

(a) If the defendant is eligible to be or has been released on pretrial release or on the defendant's his own recognizance, the court shall select the least physically restrictive form of treatment therapeutically appropriate and consistent with the safety of the defendant or the safety of others. treatment plan. The treatment placement may be ordered on either on an inpatient or an outpatient basis.

(b) If the defendant defendant's is unfit due to mental illness or developmental disability as identified in the Mental Health and Developmental Disabilities Code disability is mental, the court may order the defendant into the him placed for secure treatment in the custody of the Department of Human Services. , or The the court may also order the defendant to be 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 remanded to the custody of the Department of Human Services for inpatient services, the defendant shall be placed in a secure setting. During the period of time required to determine bed and placement availability at the designated facility, the defendant shall remain in jail and the pretrial release provisions of Section 110-2 do not apply. If the most serious charge faced by the defendant is a Class A or Class B misdemeanor, the court shall order outpatient treatment, unless the court finds good cause on the record to order secure, inpatient treatment. If the court orders the defendant to inpatient treatment in the custody of the Department of Human Services, the Department shall conduct a placement screening evaluate the defendant to determine the most appropriate placement option for secure facility to receive the defendant and, within 20 days of the successful transmittal by the clerk of the circuit court of the court's placement order, if inpatient treatment is most appropriate, notify the court, the State and the defense court of the designated secure facility to receive the defendant. In such case, the The Department shall admit the defendant to a secure facility within 60 days of the transmittal of the court's remand court's placement order, unless the Department can demonstrate good faith efforts at placement and a lack of bed and placement availability. If placement cannot be made within 60 days of successful the transmittal of the court's remand court's placement order and the Department has demonstrated good faith efforts at placement and a lack of bed and placement availability, the Department shall provide the court, the State, and the defense with an update and shall continue an update to update the ordering court, the State and the defense court every 30 days thereafter until the defendant is placed. Once bed and placement availability is determined, the Department shall notify the sheriff who shall promptly transport the defendant to the designated facility. If the defendant is placed in the custody of the Department of Human Services, the defendant shall be placed in a secure setting. During the period of time required to determine bed and placement availability at the designated facility, the defendant shall remain in jail. If during the course of screening evaluating the defendant for placement, the Department of Human Services determines that the defendant is currently fit to stand trial, suitable for outpatient treatment, or unfit without a substantial probability of being rendered fit within the statutory timeframe, it shall immediately notify the court, the State, and the defense court and shall submit a written report within 7 days. In any of those circumstances, that circumstance the placement shall be held pending a court hearing on the Department's report. Otherwise, upon completion of the placement process, including identifying bed and placement availability, the sheriff shall be notified and shall transport the defendant to the designated facility. If, within 60 days of the successful transmittal by the clerk of the circuit court of the court's remand court's placement order, the Department has not provided the court fails to provide the sheriff with notice of bed and placement availability at the designated facility, the sheriff shall contact the Department to inquire about when a placement will become available at the designated facility as well as bed and placement availability at other secure facilities. The Department shall respond to the sheriff within 2 business days of the notice and inquiry by the sheriff seeking the transfer and the Department shall provide the sheriff with the status of the placement screening, currently designated facility evaluation, information on bed and placement availability, and an estimated date of admission for the defendant, and any changes to the that estimated date of admission. If the Department notifies the sheriff during the 2 business day period of an alternate secure a facility operated by the Department with current placement availability, the sheriff shall promptly transport the defendant to that facility. The placement may be ordered either on an inpatient or an outpatient basis.

(c) If the defendant's disability is physical, the court may order placement at a medical hospital or other residential care facility or program that has agreed to provide treatment to the defendant. Only such physical conditions that may be overcome by special assistance or provisions as referenced in Section 104-22 qualify as physical disabilities under this subsection. 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.

(d) If the defendant with mental disabilities is ordered to outpatient treatment, the defendant shall be released from custody with instructions to contact the Department of Human Services to schedule the receipt of restoration services in the community. A defendant who either fails to arrange for the receipt of community restoration services or whom the Department reports has failed to comply in any other respect with the outpatient treatment order shall be remanded to the Department pursuant to subsection (b) hereof to receive inpatient services at a secure facility designated by the Department.

(e) If the defendant is unfit due to any condition other than a mental or physical condition as defined in Section 102-24, the court may order the defendant placed in a suitable public or private treatment facility or program that has agreed to provide treatment to the defendant. No person who has not been determined to be unfit due to a mental or physical condition identified in Section 102-24 may be placed in a facility operated by the Department of Human Services.

(f) (d) The clerk of the circuit court shall within 5 days of the entry of the order transmit to the Department, hospital, facility, agency or program institution, if any, to which the defendant is remanded for treatment, the following:

(1) a certified copy of the order to undergo treatment. Accompanying the certified copy of the order to undergo treatment shall be the complete copy of any initial fitness report prepared under Section 104-15 of this Code or other report prepared by a forensic examiner for the court;

(2) the county and municipality in which the offense was committed;

(3) the county and municipality in which the arrest took place;

(4) a copy of the arrest report, criminal charges, arrest record; and

(5) an order authorizing the Department, hospital, facility or program to contact and receive information from prior and current treatment providers and the defendant's family concerning prior admissions, treatment, medications and behaviors; and

(6) (5) all additional matters which the Court directs the clerk to transmit.

(g) (e) Within 30 days of admission to the hospital, facility or program designated under this Section facility, the person supervising the defendant's treatment shall submit to file with the court, the State, and the defense a report assessing the hospital's, facility's or program's capacity to provide appropriate treatment for the defendant and indicating an his opinion as to the probability of the defendant's attaining fitness within a period of time from the date of the finding of unfitness. For a defendant charged with a felony, the period of time shall be one year. For a defendant charged with a Class A or Class B misdemeanor, the period of time shall be no longer than the sentence if convicted of the most serious offense. Defendants charged with Class C misdemeanors, petty offenses, infraction of a municipal ordinance, or violation of the Illinois Vehicle Code are not eligible for fitness restoration services, unless the statutory penalty therefor may include a sentence for a period of 180 days or longer. If the report indicates that there is a substantial probability that the defendant will attain fitness within the statutory time period, the treatment supervisor shall also submit file a treatment plan which shall include:

(1) A diagnosis of the defendant's disability;

(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;

(3) An identification of the person in charge of supervising the defendant's treatment.

(Source: P.A. 101-652, eff. 1-1-23; 102-1118, eff. 1-18-23.)

(725 ILCS 5/104-18) (from Ch. 38, par. 104-18)

Sec. 104-18. Progress reports.

(a) The treatment supervisor shall submit a written progress report to the court, the State, and the defense:

(1) At least 7 days prior to the date for any hearing on the issue of the defendant's fitness, provided the treatment supervisor has been notified by the court of such date sufficiently in advance;;

(2) Whenever the treatment supervisor he believes that the defendant has attained fitness;

(3) Whenever there is an opinion by the treatment supervisor he believes that there is not a substantial probability that the defendant will attain fitness, with treatment, within the statutory time period set in subsection (e) of Section 104-17 of this Code from the date of the original finding of unfitness.

(b) The progress report shall contain:

(1) The clinical findings of the treatment supervisor and the facts upon which the findings are based;

(2) The opinion of the treatment supervisor as to whether the defendant has attained fitness, or as to whether the defendant is making progress, under treatment, toward attaining fitness within the statutory time period set in subsection (e) of Section 104-17 of this Code from the date of the original finding of unfitness, or there is not a substantially probability that the defendant will attain fitness within the statutory time period;

(3) If the defendant is receiving medication, information from the prescribing physician indicating the type, the dosage and the effect of the medication on the defendant's appearance, actions and demeanor.

(c) Whenever the court is sent a report from the supervisor of the defendant's treatment under either paragraph (2) or (3) of subsection (a) of this Section it shall, within 48 hours, enter an order upon the sheriff to return the defendant to the county jail. Upon receipt of such order, the treatment supervisor provider shall arrange directly with the county sheriff jail for the immediate return of the defendant to the county jail as provided under subsection (e) of Section 104-20 of this Code.

(d) Whenever the court receives a report from the defendant's treatment supervisor pursuant to paragraph (2) or (3) of subsection (a), the court shall forthwith set the matter for a first hearing within 14 days, unless good cause is demonstrated why the hearing cannot be held within that time and shall set the hearing at the first available opportunity thereafter.

(Source: P.A. 99-78, eff. 7-20-15; 100-27, eff. 1-1-18.)

(725 ILCS 5/104-19) (from Ch. 38, par. 104-19)

Sec. 104-19. Records.) Any report submitted to filed of record with the court concerning diagnosis, treatment or treatment plans made pursuant to this Article shall not be placed in the defendant's court record, but shall be maintained separately by the clerk of the court and shall be available only to the court or an appellate court, the State and the defense, the Department, a hospital, facility or program which is providing treatment to the defendant pursuant to an order of the court or such other persons as the court may direct.

(Source: P.A. 81-1217.)

(725 ILCS 5/104-20) (from Ch. 38, par. 104-20)

Sec. 104-20. Ninety-day hearings; continuing treatment.)

(a) Upon entry or continuation of any order to undergo fitness restoration treatment, the court shall set a date for hearing to reexamine the issue of the defendant's fitness not more than 90 days from the original finding of unfitness and at 90-day intervals thereafter. The clerk of the circuit court shall notify the hospital, facility or program providing treatment to the defendant of all upcoming hearing dates. In addition, whenever the court receives a report from the supervisor of the defendant's treatment pursuant to subparagraph (3) of paragraph (a) of Section 104-18, the court shall forthwith set the matter for a first hearing within 14 days unless good cause is demonstrated why the hearing cannot be held. Unless waived by the defense, on On the date set or upon conclusion of the matter then pending before it, the court, sitting without a jury, shall conduct a hearing, unless waived by the defense, and shall determine:

(1) Whether the defendant is fit to stand trial or to plead; or and if not,

(2) Whether the defendant is making progress under treatment toward attainment of fitness within the statutory time period set in subsection (e) of Section 104-17 of this Code from the date of the original finding of unfitness; or .

(3) Whether there is not a substantial probability that the defendant may be restored to fitness within the statutory timeframe.

(b) If the court finds the defendant to be fit pursuant to this Section, the court shall set the matter for trial and if in secure custody, order that the defendant be returned to the county to stand trial. ; provided that if the defendant is in need of continued care or treatment and the supervisor of the defendant's treatment agrees to continue to provide it, the court may enter any order it deems appropriate for the continued care or treatment of the defendant by the facility or program pending the conclusion of the criminal proceedings.

(c) If the court finds that the defendant is still unfit but that the defendant he is making progress toward attaining fitness, the court may continue or modify the its original treatment order entered pursuant to Section 104-17.

(d) If the court finds that the defendant is still unfit and that the defendant he is not making progress toward attaining fitness such that there is not a substantial probability that the defendant he will attain fitness within the time statutory period set in subsection (e) of Section 104-17 of this Code from the date of the original finding of unfitness, if in secure custody, the court shall order that the defendant be returned to the county and shall otherwise proceed pursuant to Section 104-23. However, if the defendant is in need of continued care and treatment and the supervisor of the defendant's treatment agrees to continue to provide it, the court may enter any order it deems appropriate for the continued care or treatment by the facility or program pending the conclusion of the criminal proceedings.

(e) Whenever the court receives a report from the supervisor of the defendant's treatment under paragraph (2) or (3) of subsection (a) of Section 104-18 of this Code, the court shall, within 48 hours, immediately enter an order directing the sheriff to return the defendant to the county jail and set the matter for trial. At any time thereafter, the issue of the defendant's fitness can be raised again under Section 104-11 of this Code. If the court finds that the defendant is still unfit after being recommended as fit by the supervisor of the defendant's treatment and, that it is substantially probable that the defendant may be restored to fitness within the statutory timeframe, the court shall attach a copy of any written report that identifies the relevant factors in favor thereof the finding that the defendant continues to be unfit, prepared by a licensed physician, clinical psychologist, or psychiatrist, to the court order remanding the person for further treatment.

(Source: P.A. 99-140, eff. 1-1-16; 100-27, eff. 1-1-18.)

(725 ILCS 5/104-21) (from Ch. 38, par. 104-21)

Sec. 104-21. Medication.

(a) A defendant who is ordered into the custody of the Department of Human Services after a finding of unfitness is subject to the involuntary administration of medication under Section 2-107.1 of the Mental Health and Developmental Disabilities Code. The petition may be filed in either the county where the defendant is located or with the court having jurisdiction over the defendant. A defendant receiving psychotropic drugs shall not be presumed to be unfit to stand trial solely by virtue of the receipt of those drugs or medications.

(a-5) The court-ordered custodian of a defendant who is subject to the involuntary administration of medication under this Section shall be entitled to receive the treatment notes, records, and reports relative to the defendant upon written request. A prior treatment provider who is provided with a copy of the court's custody order shall respond to the custodian's records request within 5 business days. No records received pursuant to this Section may be used for any purposes except to determine whether the defendant meets the criteria for court-ordered treatment under Section 2-107.1 or to prepare for and participate in hearings under Section 2-107.1.

(a-7) A petition filed on behalf of a defendant who is in custody under this Article shall be heard within 7 days, unless good cause is stated on the record why the hearing cannot be so held within the statutory timeframe. In no event, however, shall such hearing be delayed beyond 14 days from the date the petition is filed. The court shall adjudicate the petition within 3 working days of the conclusion of the medication hearing.

(b) Whenever a defendant who is receiving medication under medical direction is transferred between a place of custody and a treatment facility or program, a written report from the prescribing physician shall accompany the defendant. The report shall state the type and dosage of the defendant's medication and the duration of the prescription. The chief officer of the place of custody or the treatment supervisor at the facility or program shall ensure insure that such medication is provided according to the directions of the prescribing physician or until superseded by order of a physician who has examined the defendant.

(c) (Blank). If a defendant refuses psychotropic medication, it may be administered over the defendant's objections in accord with the Mental Health and Developmental Disabilities Code. If court authorized medications are sought, the petition, prepared in accord with Section 2-107.1 of the Mental Health and Developmental Disabilities Code may be filed in the county where the defendant is located or with the court having jurisdiction over the defendant.

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

(725 ILCS 5/104-22) (from Ch. 38, par. 104-22)

Sec. 104-22. Trial with special provisions and assistance.) (a) On motion of the defendant, the State or on the court's own accord motion, the court shall determine whether special provisions or assistance will render the defendant fit to stand trial as defined in Section 104-10.

(b) Such special provisions or assistance may include but are not limited to:

(1) The administration of medication.

(2) (1) Appointment of qualified translators who shall simultaneously translate all testimony at trial into language understood by the defendant.

(3) (2) Appointment of experts qualified to assist a defendant who because of a disability is unable to understand the proceedings or communicate with the defendant's his or her attorney.

(c) The case may proceed to trial only if the court determines that such provisions or assistance compensate for a defendant's disabilities so as to render the defendant fit as defined in Section 104-10. In such cases the court shall state for the record the following:

(1) The qualifications and experience of the experts or other persons appointed to provide special assistance to the defendant;

(2) The court's reasons for selecting or appointing the particular experts or other persons to provide the special assistance to the defendant;

(3) How the appointment of the particular expert or other persons will serve the goal of rendering the defendant fit in view of the appointee's qualifications and experience, taken in conjunction with the particular disabilities of the defendant; and

(4) Any other factors considered by the court in determining that the defendant is fit with special provisions or assistance. appointing that individual.

(Source: P.A. 81-1217.)

(725 ILCS 5/104-23) (from Ch. 38, par. 104-23)

Sec. 104-23. Unfit defendants. Cases involving an unfit defendant who demands a discharge hearing or a defendant whom the defendant's treatment supervisor has reported as unfit without a substantial probability of attaining fitness within the statutory time period who cannot become fit to stand trial and for whom no special provisions or assistance can compensate for the defendant's his disability and render the defendant him fit shall proceed in the following manner:

(a) Upon a determination that there is not a substantial probability that the defendant will attain fitness within the time period set in subsection (e) of Section 104-17 of this Code from the original finding of unfitness, the court The court shall hold a discharge hearing within 14 60 days, unless good cause is shown for the delay.

(b) If at the hearing at any time the court determines that there is not a substantial probability that the defendant will attain fitness become fit to stand trial or to plead within the statutory time period it shall proceed as follows: set in subsection (e) of Section 104-17 of this Code from the date of the original finding of unfitness, or if at the end of the time period set in subsection (e) of Section 104-17 of this Code from that date the court finds the defendant still unfit and for whom no special provisions or assistance can compensate for his disabilities and render him fit, the State shall request the court:

(1) To set the matter for a discharge hearing pursuant to Section 104-25 104-25 unless a hearing has already been held pursuant to paragraph (a) of this Section; or

(2) To release the defendant from custody and to dismiss with prejudice the charges against the defendant him; or

(3) To remand the defendant to the custody of the Department of Human Services and order an involuntary civil commitment a hearing to be conducted pursuant to the provisions of the Mental Health and Developmental Disabilities Code, as now or hereafter amended. The Department of Human Services shall have 7 days from the date it receives the defendant assess the individual and if warranted, to prepare and file the necessary petition and certificates that are required for commitment on an inpatient or outpatient basis under the Mental Health and Developmental Disabilities Code subject to a 7 day extension upon a showing of good cause. If the defendant is committed to the Department of Human Services pursuant to such hearing, the court having jurisdiction over the criminal matter shall dismiss the charges against the defendant, with the leave to reinstate. In such cases the Department of Human Services shall notify the court, the State's attorney and the defense attorney upon the discharge of the defendant. A former defendant so committed shall be otherwise treated in the same manner as any other civilly committed patient for all purposes including admission, selection of the place of treatment and the treatment modalities, entitlement to rights and privileges, transfer, and discharge. If the defendant does not qualify for involuntary commitment, but has expressed a willingness to be admitted on a voluntary basis and the facility director determines that the defendant is clinically suitable for voluntary admission, the Department shall so advise the court, the State, and the defense. The court may consider this factor in determining whether to proceed under subparagraph (1) or (2) of paragraph (b) of this Section. Should the court dismiss with prejudice the charges against the defendant, the defendant shall then be admission to the Department on a voluntary basis pursuant to the Mental Health and Developmental Disabilities Code. If a defendant who does not qualify for involuntary commitment is unwilling or unsuitable for voluntary admission, the Department shall so advise the court, the State and the defense. Upon receipt of such a notice, the court A defendant who is not committed shall, within 48 hours, enter an order for the sheriff to transport the defendant to the county jail be remanded to the court having jurisdiction of the criminal matter for further disposition pursuant to subparagraph (1) or (2) of paragraph (b) of this Section.

(c) Where charges have not been dismissed with prejudice, if If the defendant is later restored to fitness and the original charges against him are reinstated, the speedy trial provisions of Section 103-5 shall commence to run.

(Source: P.A. 102-1118, eff. 1-18-23.)

(725 ILCS 5/104-24) (from Ch. 38, par. 104-24)

Sec. 104-24. Time Credit. Time spent in custody pursuant to orders issued under this Article Section 104-17 or 104-20 or pursuant to a commitment to the Department of Human Services following a finding of unfitness or incompetency under prior law, shall be credited against any sentence imposed on the defendant in the pending criminal case or in any other case arising out of the same conduct. The court shall calculate the time credit to be applied when considering the maximum period of time that a defendant may remain in custody. The Department of Human Services shall not be authorized to independently apply or calculate time credit.

(Source: P.A. 89-507, eff. 7-1-97.)

(725 ILCS 5/104-25) (from Ch. 38, par. 104-25)

Sec. 104-25. Discharge hearing.

(a) As provided for in paragraph (a) of Section 104-23 and subparagraph (1) of paragraph (b) of Section 104-23 a hearing to determine the sufficiency of the evidence shall be held. Such hearing shall be conducted by the court without a jury. The State and the defendant may introduce evidence relevant to the question of defendant's guilt of the crime charged.

The court may admit hearsay or affidavit evidence on secondary matters such as testimony to establish the chain of possession of physical evidence, laboratory reports, authentication of transcripts taken by official reporters, court and business records, and public documents.

(b) If the evidence presented by the State does not prove the defendant guilty beyond a reasonable doubt, the court shall enter a judgment of acquittal; however nothing herein shall prevent the State from requesting the court to commit the defendant to the Department of Human Services under the provisions of the Mental Health and Developmental Disabilities Code.

(c) If after considering the evidence, the defendant is found not guilty by reason of insanity, the court shall enter a judgment of acquittal and the proceedings after acquittal by reason of insanity under Section 5-2-4 of the Unified Code of Corrections shall apply.

(d) If the discharge hearing does not result in an acquittal of the charge under subsection (b) or (c), the defendant may be remanded for further treatment and the statutory one year time limit for restoration set forth in Section 104-23 shall be extended as follows:

(1) If the most serious charge upon which the State sustained its burden of proof was a Class 1 or Class X felony, the treatment period may be extended up to a maximum treatment period of 2 years;

(1.1) If the most serious charge upon which the State sustained its burden of proof was if a Class 2, 3, or 4 felony, the treatment period may be extended up to a maximum of 15 months;

(2) If the State sustained its burden of proof on a charge of first degree murder, the treatment period may be extended up to a maximum treatment period of 5 years.

(3) Defendants facing misdemeanor charges are not subject to extension of the treatment period unless they are also facing felony charges on the same conduct.

(e) Transcripts of testimony taken at a discharge hearing may be admitted in evidence at a subsequent trial of the case, subject to the rules of evidence, if the witness who gave such testimony is legally unavailable at the time of the subsequent trial.

(f) If the court fails to enter an order of acquittal the defendant may appeal from such judgment in the same manner provided for an appeal from a conviction in a criminal case.

(g) At the expiration of an extended period of treatment ordered pursuant to subsection (d) of this Section:

(1) Upon a finding that the defendant is fit or can be rendered fit consistent with special provisions or assistance pursuant to Section 104-22 if in custody, the court shall, within 48 hours, order the sheriff to return the defendant to the county and the court may otherwise proceed with trial.

(2) If the defendant continues to be unfit to stand trial, the court shall determine whether the defendant he or she is subject to involuntary admission under the Mental Health and Developmental Disabilities Code or constitutes a serious threat to the public safety. If so found, the defendant shall be remanded to the Department of Human Services for further treatment and shall be treated in the same manner as a civilly committed patient for all purposes, except that the defendant shall be placed in a secure setting unless the court determines that there are compelling reasons why such placement is not necessary. In addition, the criminal original court having jurisdiction over the defendant shall be required to approve any conditional release or discharge of the defendant, for the period of commitment equal to the maximum sentence to which the defendant would have been subject had the defendant he or she been convicted in the underlying a criminal proceeding. The court shall calculate the maximum period of civil commitment under this subsection and no credits may be applied against such term other than those considered and applied by the court. During this period of commitment, the original court having jurisdiction over the defendant shall hold hearings under clause (i) of this paragraph (2). However, if the defendant is remanded to 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.

If the defendant does not have a current treatment plan, then within 3 days of admission under this subsection subdivision (g)(2), the defendant's treatment supervisor shall submit a treatment plan to the court, the State, and the defense shall be prepared for each defendant and entered into his or her record. The plan shall include (i) an assessment of the defendant's treatment needs, (ii) a description of the services recommended for treatment, (iii) the goals of each type of element of service, (iv) an anticipated timetable for the accomplishment of the goals, and (v) a designation of the qualified professional responsible for the implementation of the plan. The plan shall be reviewed and updated as the clinical condition warrants, but not less than every 30 days.

Every 90 days after the entry of an initial admission order under this subsection subdivision (g)(2), the defendant's treatment supervisor facility director shall submit file a progress typed treatment plan report to the court, the State, and the defense with the original court having jurisdiction over the defendant. The report shall include an opinion as to whether the defendant is: (i) fit to stand trial, or (ii) if not, and whether the defendant is currently subject to involuntary admission. If so, the treatment supervisor shall also state whether the defendant is , 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 5 items required in a treatment plan. A copy of the report shall be forwarded to the clerk of the circuit court to be filed in accordance with Section 104-19 with a copy provided to the State and the defense, if the defendant is represented by counsel. If the report states that the defendant is fit to stand trial, the court shall conduct a fitness hearing. If the defendant is found fit, the court shall, within 48 hours, order the county sheriff to return the defendant to the county jail to stand trial.

Upon request of the defendant's treatment supervisor, the State, the defense, or on the court's court, the State's Attorney, and the defendant's attorney if the defendant is represented by counsel. The court on its own motion, it may order a hearing to review the treatment plan. The defendant or the State's Attorney may request a treatment plan review every 90 days and the court shall review the current treatment plan to determine whether the plan complies with the requirements of this Section. The court may also order an independent examination of the defendant on its own initiative or at the request of and shall order such an evaluation if either the defense recipient or the State State's Attorney so requests and has demonstrated to the court that the plan cannot be effectively reviewed by the court without such an examination. Under no circumstances shall the court be required to order an independent examination pursuant to this Section. However, if it does, it may not do so more than once each 12-month period year. The examination shall be conducted 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.

If, during the period within which the defendant is confined in a secure setting, the court enters an order that requires the defendant to appear, the court shall timely transmit a copy of the order or writ to the director of the hospital, particular Department of Human Services facility or program providing services to the defendant where the defendant resides authorizing the transportation of the defendant to the court for the purpose of the hearing.

(i) 180 days after a defendant is remanded to the Department of Human Services, under paragraph (2) of subsection (g) paragraph (2), and every 180 days thereafter for so long as the defendant is confined under the order entered thereunder, the court shall set a hearing and 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 determines that 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. If the defendant is not currently represented by counsel, the court shall appoint the public defender to represent the defendant at the hearing. The court shall make a finding as to whether the defendant is: (A) subject to involuntary admission and, if so, whether the defendant is ; or (B) in need of mental health services in the form of inpatient care; or (C) in need of mental health services on an outpatient basis but not subject to involuntary admission nor inpatient care.

The findings of the court shall be established by clear and convincing evidence and the burden of proof and the burden of going forward with the evidence shall rest with the State State's Attorney. The court Upon finding by the court, the court shall enter its findings on and an appropriate order.

(ii) The terms "subject to involuntary admission", "in need of mental health services in the form of inpatient care" and "in need of mental health services on an outpatient basis but not subject to involuntary admission nor inpatient care" shall have the meanings ascribed to them in clause (a-1) (d)(3) of Section 5-2-4 of the Unified Code of Corrections.

(3) If the defendant is not committed pursuant to this Section, the defendant he or she shall be released.

(4) In no event may the treatment period be extended to exceed the maximum sentence to which a defendant would have been subject had the defendant he or she been convicted in the a criminal proceeding on the most serious offense. For purposes of this Section, the maximum sentence shall be determined by Section 5-8-1 (730 ILCS 5/5-8-1) or Article 4.5 of Chapter V of the "Unified Code of Corrections", excluding any sentence of natural life.

(5) If the treatment supervisor reports the defendant as fit, the court shall immediately, within 48 hours, order the sheriff to return the defendant to the county jail to stand trial, plead, or be sentenced.

(Source: P.A. 95-1052, eff. 7-1-09.)

(725 ILCS 5/104-26) (from Ch. 38, par. 104-26)

Sec. 104-26. Disposition of Defendants suffering disabilities.

(a) A defendant convicted following a trial conducted under the provisions of Section 104-22 shall not be sentenced before a written presentence report of investigation is presented to and considered by the court. The presentence report shall be prepared pursuant to Sections 5-3-2, 5-3-3 and 5-3-4 of the Unified Code of Corrections, as now or hereafter amended, and shall include a physical and mental examination unless the court finds that the reports of prior physical and mental examinations conducted pursuant to this Article are adequate and recent enough so that additional examinations would be unnecessary.

(b) (Blank).

(c) A defendant convicted following a trial under Section 104-22 shall be sentenced according to the procedures and dispositions authorized under the Unified Code of Corrections, as now or hereafter amended, subject to the following provisions:

(1) The court shall not impose a sentence of imprisonment upon the offender if the court believes that due to the presence of a because of his disability, a sentence of imprisonment would not serve the ends of justice and the interests of society and the offender or that because of a his disability, a sentence of imprisonment would subject the offender to excessive hardship. In addition to any other conditions of a sentence of conditional discharge or probation, the court may require that the offender undergo treatment appropriate for the defendant's to his mental or physical condition.

(2) (Blank). After imposing a sentence of imprisonment upon an offender who has a mental disability, the court may remand him to the custody of the Department of Human Services and order a hearing to be conducted pursuant to the provisions of the Mental Health and Developmental Disabilities Code, as now or hereafter amended. If the offender is committed following such hearing, he shall be treated in the same manner as any other civilly committed patient for all purposes except as provided in this Section. If the defendant is not committed pursuant to such hearing, he shall be remanded to the sentencing court for disposition according to the sentence imposed.

(3) If the court imposes a sentence of imprisonment upon an offender who has a mental disability but does not proceed under subparagraph (2) of paragraph (c) of this Section, it shall order the Department of Corrections to proceed pursuant to Section 3-8-5 of the Unified Code of Corrections, as now or hereafter amended.

(3.5) If the court imposes a sentence of imprisonment upon an offender who has a mental disability, it the court shall direct the clerk of the circuit court circuit court clerk to immediately notify the Illinois State Police, Firearm Owner's Identification (FOID) Office, in a form and manner prescribed by the Illinois State Police and shall forward a copy of the court order to the Department.

(4) If the court imposes a sentence of imprisonment upon an offender who has a physical disability, it may authorize the Department of Corrections to place the offender in a public or private facility which is able to provide care or treatment for the offender's disability and which agrees to do so.

(5) When an offender is placed with the Department of Human Services or another facility pursuant to subparagraph (2) or (4) of this paragraph (c), the public or Department or private facility shall not discharge or allow the offender to be at large in the community without prior approval of the court. 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. The offender shall accrue all good time credits as determined by the court while in the custody of the public or private facility and shall be eligible for parole in the same manner as if the offender he were serving the defendant's his sentence within the Department of Corrections. If the sentence has not yet expired when When the offender no longer requires hospitalization, care, or treatment, the public or private Department of Human Services or the facility shall transfer the offender him, if his sentence has not expired, to the Department of Corrections. If an offender is transferred to the Department of Corrections, the facility Department of Human Services shall transfer to the Department of Corrections all related records pertaining to length of custody and treatment services provided during the time the offender was held.

(6) The Department of Corrections shall notify the public or private Department of Human Services or a facility in which an offender has been placed pursuant to subparagraph (2) or (4) of paragraph (c) of this Section of the expiration of the his sentence. Thereafter, an offender so placed in the Department of Human Services shall continue to be treated pursuant to the defendant's his commitment order and shall be considered a civilly committed patient for all purposes including discharge. An offender who is in a facility pursuant to subparagraph (4) of paragraph (c) of this Section shall be informed by the facility of the expiration of the defendant's his sentence, and shall either consent to the continuation of the defendant's his care or treatment by the facility, or shall be discharged.

(Source: P.A. 102-538, eff. 8-20-21; 103-51, eff. 1-1-24.)

(725 ILCS 5/104-27 rep.)

(725 ILCS 5/104-28 rep.)

Section 10. The Code of Criminal Procedure of 1963 is amended by repealing Sections 104-27 and 104-28.