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| [ Introduced ] | [ House Amendment 001 ] |
91_HB3236eng HB3236 Engrossed LRB9111408RCdv 1 AN ACT in relation to defendants found not guilty by 2 reason of insanity. 3 Be it enacted by the People of the State of Illinois, 4 represented in the General Assembly: 5 Section 5. The Unified Code of Corrections is amended by 6 changing Section 5-2-4 as follows: 7 (730 ILCS 5/5-2-4) (from Ch. 38, par. 1005-2-4) 8 Sec. 5-2-4. Proceedings after Acquittal by Reason of 9 Insanity. 10 (a) After a finding or verdict of not guilty by reason 11 of insanity under Sections 104-25, 115-3 or 115-4 of The Code 12 of Criminal Procedure of 1963, the defendant shall be ordered 13 to the Department of Human Services for an evaluation as to 14 whether he is subject to involuntary admission or in need of 15 mental health services. The order shall specify whether the 16 evaluation shall be conducted on an inpatient or outpatient 17 basis. If the evaluation is to be conducted on an inpatient 18 basis, the defendant shall be placed in a secure setting 19 unless the Court determines that there are compelling reasons 20 why such placement is not necessary. After the evaluation and 21 during the period of time required to determine the 22 appropriate placement, the defendant shall remain in jail. 23 Upon completion of the placement process the sheriff shall 24 be notified and shall transport the defendant to the 25 designated facility. 26 The Department shall provide the Court with a report of 27 its evaluation within 30 days of the date of this order. The 28 Court shall hold a hearing as provided under the Mental 29 Health and Developmental Disabilities Code to determine if 30 the individual is: (a) subject to involuntary admission; (b) 31 in need of mental health services on an inpatient basis; (c) HB3236 Engrossed -2- LRB9111408RCdv 1 in need of mental health services on an outpatient basis; (d) 2 a person not in need of mental health services. The Court 3 shall enter its findings. 4 If the defendant is found to be subject to involuntary 5 admission or in need of mental health services on an 6 inpatient care basis, the Court shall order the defendant to 7 the Department of Human Services. The defendant shall be 8 placed in a secure setting unless the Court determines that 9 there are compelling reasons why such placement is not 10 necessary. Such defendants placed in a secure setting shall 11 not be permitted outside the facility's housing unit unless 12 escorted or accompanied by personnel of the Department of 13 Human Services or with the prior approval of the Court for 14 unsupervised on-grounds privileges as provided herein. Any 15 defendant placed in a secure setting pursuant to this 16 Section, transported to court hearings or other necessary 17 appointments off facility grounds by personnel of the 18 Department of Human Services, may be placed in security 19 devices or otherwise secured during the period of 20 transportation to assure secure transport of the defendant 21 and the safety of Department of Human Services personnel and 22 others. These security measures shall not constitute 23 restraint as defined in the Mental Health and Developmental 24 Disabilities Code. If the defendant is found to be in need 25 of mental health services, but not on an inpatient care 26 basis, the Court shall conditionally release the defendant, 27 under such conditions as set forth in this Section as will 28 reasonably assure the defendant's satisfactory progress in 29 treatment or rehabilitation and the safety of the defendant 30 or others. If the Court finds the person not in need of 31 mental health services, then the Court shall order the 32 defendant discharged from custody. 33 (1) Definitions: For the purposes of this Section: 34 (A) "Subject to involuntary admission" means: a HB3236 Engrossed -3- LRB9111408RCdv 1 defendant has been found not guilty by reason of 2 insanity; and 3 (i) who is mentally ill and who because of his 4 mental illness is reasonably expected to inflict 5 serious physical harm upon himself or another in the 6 near future; or 7 (ii) who is mentally ill and who because of 8 his illness is unable to provide for his basic 9 physical needs so as to guard himself from serious 10 harm. 11 (B) "In need of mental health services on an 12 inpatient basis" means: a defendant who has been found 13 not guilty by reason of insanity who is not subject to 14 involuntary admission but who is reasonably expected to 15 inflict serious physical harm upon himself or another and 16 who would benefit from inpatient care or is in need of 17 inpatient care. 18 (C) "In need of mental health services on an 19 outpatient basis" means: a defendant who has been found 20 not guilty by reason of insanity who is not subject to 21 involuntary admission or in need of mental health 22 services on an inpatient basis, but is in need of 23 outpatient care, drug and/or alcohol rehabilitation 24 programs, community adjustment programs, individual, 25 group, or family therapy, or chemotherapy. 26 (D) "Conditional Release" means: the release from 27 either the custody of the Department of Human Services or 28 the custody of the Court of a person who has been found 29 not guilty by reason of insanity under such conditions as 30 the Court may impose which reasonably assure the 31 defendant's satisfactory progress in treatment or 32 habilitation and the safety of the defendant and others. 33 The Court shall consider such terms and conditions which 34 may include, but need not be limited to, outpatient care, HB3236 Engrossed -4- LRB9111408RCdv 1 alcoholic and drug rehabilitation programs, community 2 adjustment programs, individual, group, family, and 3 chemotherapy, periodic checks with the legal authorities 4 and/or the Department of Human Services. The Court may 5 order the Department of Human Services to provide care to 6 any person conditionally released under this Section. 7 The Department may contract with any public or private 8 agency in order to discharge any responsibilities imposed 9 under this Section. The Department shall monitor the 10 provision of services to persons conditionally released 11 under this Section and provide periodic reports to the 12 Court concerning the services and the condition of the 13 defendant. Whenever a person is conditionally released 14 pursuant to this Section, the State's Attorney for the 15 county in which the hearing is held shall designate in 16 writing the name, telephone number, and address of a 17 person employed by him or her who shall be notified in 18 the event that either the reporting agency or the 19 Department decide that the conditional release of the 20 defendant should be revoked or modified pursuant to 21 subsection (i) of this Section.The person or facility22rendering the outpatient care shall be required to23periodically report to the Court on the progress of the24defendant.Such conditional release shall be for a period 25 of five years. However,unlessthe defendant, the person 26 or facility rendering the treatment, therapy, program or 27 outpatient care, the Department or the State's Attorney 28 may petitionpetitionsthe Court for an extension of the 29 conditional release period for an additional 5three30 years. Upon receipt of such a petition, the Court shall 31 hold a hearing consistent with the provisions of this 32 paragraph (a) and paragraph (f) of this Section, shall 33 determine whether the defendant should continue to be 34 subject to the terms of conditional release, and shall HB3236 Engrossed -5- LRB9111408RCdv 1 enter an order either extending the defendant's period of 2 conditional release for ana singleadditional 5three3 year period or discharging the defendant. Additional 5 4 years periods of conditional release may be ordered 5 following a hearing as provided in this Section. 6 However, in no event shall the defendant's period of 7 conditional release continue beyond the maximum period of 8 commitment ordered by the court pursuant to paragraph (b) 9 of this Sectionexceed eight years. These provisions for 10 extension of conditional release shall only apply to 11 defendants conditionally released on or after the 12 effective date of this amendatory Act of the 91st General 13 AssemblyJuly 1, 1979. However the extension provisions 14 of Public Act 83-1449 apply only to defendants charged 15 with a forcible felony. 16 (E) "Facility director" means the chief officer of 17 a mental health or developmental disabilities facility or 18 his or her designee or the supervisor of a program of 19 treatment or habilitation or his or her designee. 20 "Designee" may include a physician, clinical 21 psychologist, social worker, or nurse. 22 (b) If the Court finds the defendant subject to 23 involuntary admission or in need of mental health services on 24 an inpatient basis, the admission, detention, care, treatment 25 or habilitation, treatment plans, review proceedings, 26 including review of treatment and treatment plans, and 27 discharge of the defendant after such order shall be under 28 the Mental Health and Developmental Disabilities Code, except 29 that the initial order for admission of a defendant acquitted 30 of a felony by reason of insanity shall be for an indefinite 31 period of time. Such period of commitment shall not exceed 32 the maximum length of time that the defendant would have been 33 required to serve, less credit for good behavior, before 34 becoming eligible for release had he been convicted of and HB3236 Engrossed -6- LRB9111408RCdv 1 received the maximum sentence for the most serious crime for 2 which he has been acquitted by reason of insanity. The Court 3 shall determine the maximum period of commitment by an 4 appropriate order. During this period of time, the defendant 5 shall not be permitted to be in the community in any manner, 6 including but not limited to off-grounds privileges, with or 7 without escort by personnel of the Department of Human 8 Services, unsupervised on-grounds privileges, discharge or 9 conditional or temporary release, except by a plan as 10 provided in this Section. In no event shall a defendant's 11 continued unauthorized absence be a basis for discharge. Not 12 more than 30 days after admission and every 60 days 13 thereafter so long as the initial order remains in effect, 14 the facility director shall file a treatment plan report with 15 the court and forward a copy of the treatment plan report to 16 the clerk of the court, the State's Attorney, and the 17 defendant's attorney, if the defendant is represented by 18 counsel, or to a person authorized by the defendant under the 19 Mental Health and Developmental Disabilities Confidentiality 20 Act to be sent a copy of the report. The report shall 21 include an opinion as to whether the defendant is currently 22 subject to involuntary admission, in need of mental health 23 services on an inpatient basis, or in need of mental health 24 services on an outpatient basis. The report shall also 25 summarize the basis for those findings and provide a current 26 summary of the following items from the treatment plan: (1) 27 an assessment of the defendant's treatment needs, (2) a 28 description of the services recommended for treatment, (3) 29 the goals of each type of element of service, (4) an 30 anticipated timetable for the accomplishment of the goals, 31 and (5) a designation of the qualified professional 32 responsible for the implementation of the plan. The report 33 may also include unsupervised on-grounds privileges, 34 off-grounds privileges (with or without escort by personnel HB3236 Engrossed -7- LRB9111408RCdv 1 of the Department of Human Services), home visits and 2 participation in work programs, but only where such 3 privileges have been approved by specific court order, which 4 order may include such conditions on the defendant as the 5 Court may deem appropriate and necessary to reasonably assure 6 the defendant's satisfactory progress in treatment and the 7 safety of the defendant and others. 8 (c) Every defendant acquitted of a felony by reason of 9 insanity and subsequently found to be subject to involuntary 10 admission or in need of mental health services shall be 11 represented by counsel in all proceedings under this Section 12 and under the Mental Health and Developmental Disabilities 13 Code. 14 (1) The Court shall appoint as counsel the public 15 defender or an attorney licensed by this State. 16 (2) Upon filing with the Court of a verified 17 statement of legal services rendered by the private 18 attorney appointed pursuant to paragraph (1) of this 19 subsection, the Court shall determine a reasonable fee 20 for such services. If the defendant is unable to pay the 21 fee, the Court shall enter an order upon the State to pay 22 the entire fee or such amount as the defendant is unable 23 to pay from funds appropriated by the General Assembly 24 for that purpose. 25 (d) When the facility director determines that: 26 (1) the defendant is no longer subject to 27 involuntary admission or in need of mental health 28 services on an inpatient basis; and 29 (2) the defendant may be conditionally released 30 because he or she is still in need of mental health 31 services or that the defendant may be discharged as not 32 in need of any mental health services; or 33 (3) the defendant no longer requires placement in a 34 secure setting; HB3236 Engrossed -8- LRB9111408RCdv 1 the facility director shall give written notice to the Court, 2 State's Attorney and defense attorney. Such notice shall set 3 forth in detail the basis for the recommendation of the 4 facility director, and specify clearly the recommendations, 5 if any, of the facility director, concerning conditional 6 release. Any recommendation for conditional release shall 7 include an evaluation of the defendant's need for 8 psychotropic medication, what provisions should be made, if 9 any, to insure that the defendant will continue to receive 10 psychotropic medication following discharge and what 11 provisions should be made to assure the safety of the 12 defendant and others in the event the defendant is no longer 13 receiving psychotropic medication. Within 30 days of the 14 notification by the facility director, the Court shall set a 15 hearing and make a finding as to whether the defendant is: 16 (i) subject to involuntary admission; or 17 (ii) in need of mental health services in the form 18 of inpatient care; or 19 (iii) in need of mental health services but not 20 subject to involuntary admission or inpatient care; or 21 (iv) no longer in need of mental health services; 22 or 23 (v) no longer requires placement in a secure 24 setting. 25 Upon finding by the Court, the Court shall enter its 26 findings and such appropriate order as provided in subsection 27 (a) of this Section. 28 (e) A defendant admitted pursuant to this Section, or 29 any person on his behalf, may file a petition for treatment 30 plan review, transfer to a non-secure setting within the 31 Department of Human Services or discharge or conditional 32 release under the standards of this Section in the Court 33 which rendered the verdict. Upon receipt of a petition for 34 treatment plan review, transfer to a non-secure setting or HB3236 Engrossed -9- LRB9111408RCdv 1 discharge or conditional release, the Court shall set a 2 hearing to be held within 120 days. Thereafter, no new 3 petition may be filed for 120 days without leave of the 4 Court. 5 (f) The Court shall direct that notice of the time and 6 place of the hearing be served upon the defendant, the 7 facility director, the State's Attorney, and the defendant's 8 attorney. If requested by either the State or the defense or 9 if the Court feels it is appropriate, an impartial 10 examination of the defendant by a psychiatrist or clinical 11 psychologist as defined in Section 1-103 of the Mental Health 12 and Developmental Disabilities Code who is not in the employ 13 of the Department of Human Services shall be ordered, and the 14 report considered at the time of the hearing. 15 (g) The findings of the Court shall be established by 16 clear and convincing evidence. The burden of proof and the 17 burden of going forth with the evidence rest with the State 18 when a hearing is held to review the determination of the 19 facility director that the defendant should be transferred to 20 a non-secure setting, discharged or conditionally released. 21 The burden of proof and the burden of going forth with the 22 evidence rest on the defendant when a hearing is held to 23 review a petition filed by or on behalf of such defendant. 24 The evidence shall be presented in open Court with the right 25 of confrontation and cross-examination. 26 (h) Before the court orders that the defendant be 27 discharged or conditionally released, it shall order the 28 facility director to establish a discharge plan that includes 29 a plan for the defendant's shelter, support, and medication. 30 If appropriate, the court shall order that the facility 31 director establish a program to train the defendant in 32 self-medication under standards established by the Department 33 of Human Services. If the Court finds that the defendant is 34 no longer in need of mental health services it shall order HB3236 Engrossed -10- LRB9111408RCdv 1 the facility director to discharge the defendant. If the 2 Court finds that the defendant is in need of mental health 3 services, and no longer in need of inpatient care, it shall 4 order the facility director to release the defendant under 5 such conditions as the Court deems appropriate and as 6 provided by this Section. Such conditional release shall be 7 imposed for a period of five years and shall be subject to 8 later modification by the Court as provided by this Section. 9 If the Court finds that the defendant is subject to 10 involuntary admission or in need of mental health services on 11 an inpatient basis, it shall order the facility director not 12 to discharge or release the defendant in accordance with 13 paragraph (b) of this Section. 14 (i) If within the period of the defendant's conditional 15 release, the State's Attorney determines that the defendant 16 has not fulfilled the conditions of his or her release, the 17 State's Attorney may petition the Court to revoke or modify 18 the conditional release of the defendant. Upon the filing of 19 such petition the defendant may be remanded to the custody of 20 the Department, or to any other mental health facility 21 designated by the Department, pending the resolution of the 22 petition. Nothing in this Section shall prevent the 23 emergency admission of a defendant pursuant to Article VI of 24 Chapter III of the Mental Health and Developmental 25 Disabilities Code or the voluntary admission of the defendant 26 pursuant to Article IV of Chapter III of the Mental Health 27 and Developmental Disabilities Code. If the Court 28 determines, after hearing evidence, that the defendant has 29 not fulfilled the conditions of release, the Court shall 30 order a hearing to be held consistent with the provisions of 31 paragraph (f) and (g) of this Section. At such hearing, if 32 the Court finds that the defendant is subject to involuntary 33 admission or in need of mental health services on an 34 inpatient basis, it shall enter an order remanding him or her HB3236 Engrossed -11- LRB9111408RCdv 1 to the Department of Human Services or other facility. If the 2 defendant is remanded to the Department of Human Services, he 3 or she shall be placed in a secure setting unless the Court 4 determines that there are compelling reasons that such 5 placement is not necessary. If the Court finds that the 6 defendant continues to be in need of mental health services 7 but not on an inpatient basis, it may modify the conditions 8 of the original release in order to reasonably assure the 9 defendant's satisfactory progress in treatment and his or her 10 safety and the safety of others in accordance with the 11 standards established in paragraph (1) (D) of subsection (a). 12In no event shall such conditional release be longer than13eight years.Nothing in this Section shall limit a Court's 14 contempt powers or any other powers of a Court. 15 (j) An order of admission under this Section does not 16 affect the remedy of habeas corpus. 17 (k) In the event of a conflict between this Section and 18 the Mental Health and Developmental Disabilities Code or the 19 Mental Health and Developmental Disabilities Confidentiality 20 Act, the provisions of this Section shall govern. 21 (l) This amendatory Act shall apply to all persons who 22 have been found not guilty by reason of insanity and who are 23 presently committed to the Department of Mental Health and 24 Developmental Disabilities (now the Department of Human 25 Services). 26 (m) The Clerk of the Court shall, after the entry of an 27 order of transfer to a non-secure setting of the Department 28 of Human Services or discharge or conditional release, 29 transmit a certified copy of the order to the Department of 30 Human Services, and the sheriff of the county from which the 31 defendant was admitted.In cases where the arrest of the32defendant or the commission of the offense took place in any33municipality with a population of more than 25,000 persons,34 The Clerk of the Court shall also transmit a certified copy HB3236 Engrossed -12- LRB9111408RCdv 1 of the order of discharge or conditional release to the 2 Illinois Department of State Police, to the proper law 3 enforcement agency for thesaidmunicipality where the 4 offense took place and to the sheriff of the county into 5 which the defendant is conditionally discharged. The 6 Illinois Department of State Police shall maintain a 7 centralized record of discharged or conditionally released 8 defendants while they are under court supervision for access 9 and use of appropriate law enforcement agenciesprovided the10municipality has requested such notice in writing. 11 (Source: P.A. 90-105, eff. 7-11-97; 90-593, eff. 6-19-98; 12 91-536, eff. 1-1-00.)