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91_HB3236ham001
LRB9111408RCpkam01
1 AMENDMENT TO HOUSE BILL 3236
2 AMENDMENT NO. . Amend House Bill 3236 by replacing
3 everything after the enacting clause with the following:
4 "Section 5. The Unified Code of Corrections is amended
5 by changing Section 5-2-4 as follows:
6 (730 ILCS 5/5-2-4) (from Ch. 38, par. 1005-2-4)
7 Sec. 5-2-4. Proceedings after Acquittal by Reason of
8 Insanity.
9 (a) After a finding or verdict of not guilty by reason
10 of insanity under Sections 104-25, 115-3 or 115-4 of The Code
11 of Criminal Procedure of 1963, the defendant shall be ordered
12 to the Department of Human Services for an evaluation as to
13 whether he is subject to involuntary admission or in need of
14 mental health services. The order shall specify whether the
15 evaluation shall be conducted on an inpatient or outpatient
16 basis. If the evaluation is to be conducted on an inpatient
17 basis, the defendant shall be placed in a secure setting
18 unless the Court determines that there are compelling reasons
19 why such placement is not necessary. After the evaluation and
20 during the period of time required to determine the
21 appropriate placement, the defendant shall remain in jail.
22 Upon completion of the placement process the sheriff shall
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1 be notified and shall transport the defendant to the
2 designated facility.
3 The Department shall provide the Court with a report of
4 its evaluation within 30 days of the date of this order. The
5 Court shall hold a hearing as provided under the Mental
6 Health and Developmental Disabilities Code to determine if
7 the individual is: (a) subject to involuntary admission; (b)
8 in need of mental health services on an inpatient basis; (c)
9 in need of mental health services on an outpatient basis; (d)
10 a person not in need of mental health services. The Court
11 shall enter its findings.
12 If the defendant is found to be subject to involuntary
13 admission or in need of mental health services on an
14 inpatient care basis, the Court shall order the defendant to
15 the Department of Human Services. The defendant shall be
16 placed in a secure setting unless the Court determines that
17 there are compelling reasons why such placement is not
18 necessary. Such defendants placed in a secure setting shall
19 not be permitted outside the facility's housing unit unless
20 escorted or accompanied by personnel of the Department of
21 Human Services or with the prior approval of the Court for
22 unsupervised on-grounds privileges as provided herein. Any
23 defendant placed in a secure setting pursuant to this
24 Section, transported to court hearings or other necessary
25 appointments off facility grounds by personnel of the
26 Department of Human Services, may be placed in security
27 devices or otherwise secured during the period of
28 transportation to assure secure transport of the defendant
29 and the safety of Department of Human Services personnel and
30 others. These security measures shall not constitute
31 restraint as defined in the Mental Health and Developmental
32 Disabilities Code. If the defendant is found to be in need
33 of mental health services, but not on an inpatient care
34 basis, the Court shall conditionally release the defendant,
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1 under such conditions as set forth in this Section as will
2 reasonably assure the defendant's satisfactory progress in
3 treatment or rehabilitation and the safety of the defendant
4 or others. If the Court finds the person not in need of
5 mental health services, then the Court shall order the
6 defendant discharged from custody.
7 (1) Definitions: For the purposes of this Section:
8 (A) "Subject to involuntary admission" means: a
9 defendant has been found not guilty by reason of
10 insanity; and
11 (i) who is mentally ill and who because of his
12 mental illness is reasonably expected to inflict
13 serious physical harm upon himself or another in the
14 near future; or
15 (ii) who is mentally ill and who because of
16 his illness is unable to provide for his basic
17 physical needs so as to guard himself from serious
18 harm.
19 (B) "In need of mental health services on an
20 inpatient basis" means: a defendant who has been found
21 not guilty by reason of insanity who is not subject to
22 involuntary admission but who is reasonably expected to
23 inflict serious physical harm upon himself or another and
24 who would benefit from inpatient care or is in need of
25 inpatient care.
26 (C) "In need of mental health services on an
27 outpatient basis" means: a defendant who has been found
28 not guilty by reason of insanity who is not subject to
29 involuntary admission or in need of mental health
30 services on an inpatient basis, but is in need of
31 outpatient care, drug and/or alcohol rehabilitation
32 programs, community adjustment programs, individual,
33 group, or family therapy, or chemotherapy.
34 (D) "Conditional Release" means: the release from
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1 either the custody of the Department of Human Services or
2 the custody of the Court of a person who has been found
3 not guilty by reason of insanity under such conditions as
4 the Court may impose which reasonably assure the
5 defendant's satisfactory progress in treatment or
6 habilitation and the safety of the defendant and others.
7 The Court shall consider such terms and conditions which
8 may include, but need not be limited to, outpatient care,
9 alcoholic and drug rehabilitation programs, community
10 adjustment programs, individual, group, family, and
11 chemotherapy, periodic checks with the legal authorities
12 and/or the Department of Human Services. The Court may
13 order the Department of Human Services to provide care to
14 any person conditionally released under this Section.
15 The Department may contract with any public or private
16 agency in order to discharge any responsibilities imposed
17 under this Section. The Department shall monitor the
18 provision of services to persons conditionally released
19 under this Section and provide periodic reports to the
20 Court concerning the services and the condition of the
21 defendant. Whenever a person is conditionally released
22 pursuant to this Section, the State's Attorney for the
23 county in which the hearing is held shall designate in
24 writing the name, telephone number, and address of a
25 person employed by him or her who shall be notified in
26 the event that either the reporting agency or the
27 Department decide that the conditional release of the
28 defendant should be revoked or modified pursuant to
29 subsection (i) of this Section. The person or facility
30 rendering the outpatient care shall be required to
31 periodically report to the Court on the progress of the
32 defendant. Such conditional release shall be for a period
33 of five years. However, unless the defendant, the person
34 or facility rendering the treatment, therapy, program or
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1 outpatient care, the Department or the State's Attorney
2 may petition petitions the Court for an extension of the
3 conditional release period for an additional 5 three
4 years. Upon receipt of such a petition, the Court shall
5 hold a hearing consistent with the provisions of this
6 paragraph (a) and paragraph (f) of this Section, shall
7 determine whether the defendant should continue to be
8 subject to the terms of conditional release, and shall
9 enter an order either extending the defendant's period of
10 conditional release for an a single additional 5 three
11 year period or discharging the defendant. Additional 5
12 years periods of conditional release may be ordered
13 following a hearing as provided in this Section.
14 However, in no event shall the defendant's period of
15 conditional release continue beyond the maximum period of
16 commitment ordered by the court pursuant to paragraph (b)
17 of this Section exceed eight years. These provisions for
18 extension of conditional release shall only apply to
19 defendants conditionally released on or after the
20 effective date of this amendatory Act of the 91st General
21 Assembly July 1, 1979. However the extension provisions
22 of Public Act 83-1449 apply only to defendants charged
23 with a forcible felony.
24 (E) "Facility director" means the chief officer of
25 a mental health or developmental disabilities facility or
26 his or her designee or the supervisor of a program of
27 treatment or habilitation or his or her designee.
28 "Designee" may include a physician, clinical
29 psychologist, social worker, or nurse.
30 (b) If the Court finds the defendant subject to
31 involuntary admission or in need of mental health services on
32 an inpatient basis, the admission, detention, care, treatment
33 or habilitation, treatment plans, review proceedings,
34 including review of treatment and treatment plans, and
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1 discharge of the defendant after such order shall be under
2 the Mental Health and Developmental Disabilities Code, except
3 that the initial order for admission of a defendant acquitted
4 of a felony by reason of insanity shall be for an indefinite
5 period of time. Such period of commitment shall not exceed
6 the maximum length of time that the defendant would have been
7 required to serve, less credit for good behavior, before
8 becoming eligible for release had he been convicted of and
9 received the maximum sentence for the most serious crime for
10 which he has been acquitted by reason of insanity. The Court
11 shall determine the maximum period of commitment by an
12 appropriate order. During this period of time, the defendant
13 shall not be permitted to be in the community in any manner,
14 including but not limited to off-grounds privileges, with or
15 without escort by personnel of the Department of Human
16 Services, unsupervised on-grounds privileges, discharge or
17 conditional or temporary release, except by a plan as
18 provided in this Section. In no event shall a defendant's
19 continued unauthorized absence be a basis for discharge. Not
20 more than 30 days after admission and every 60 days
21 thereafter so long as the initial order remains in effect,
22 the facility director shall file a treatment plan report with
23 the court and forward a copy of the treatment plan report to
24 the clerk of the court, the State's Attorney, and the
25 defendant's attorney, if the defendant is represented by
26 counsel, or to a person authorized by the defendant under the
27 Mental Health and Developmental Disabilities Confidentiality
28 Act to be sent a copy of the report. The report shall
29 include an opinion as to whether the defendant is currently
30 subject to involuntary admission, in need of mental health
31 services on an inpatient basis, or in need of mental health
32 services on an outpatient basis. The report shall also
33 summarize the basis for those findings and provide a current
34 summary of the following items from the treatment plan: (1)
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1 an assessment of the defendant's treatment needs, (2) a
2 description of the services recommended for treatment, (3)
3 the goals of each type of element of service, (4) an
4 anticipated timetable for the accomplishment of the goals,
5 and (5) a designation of the qualified professional
6 responsible for the implementation of the plan. The report
7 may also include unsupervised on-grounds privileges,
8 off-grounds privileges (with or without escort by personnel
9 of the Department of Human Services), home visits and
10 participation in work programs, but only where such
11 privileges have been approved by specific court order, which
12 order may include such conditions on the defendant as the
13 Court may deem appropriate and necessary to reasonably assure
14 the defendant's satisfactory progress in treatment and the
15 safety of the defendant and others.
16 (c) Every defendant acquitted of a felony by reason of
17 insanity and subsequently found to be subject to involuntary
18 admission or in need of mental health services shall be
19 represented by counsel in all proceedings under this Section
20 and under the Mental Health and Developmental Disabilities
21 Code.
22 (1) The Court shall appoint as counsel the public
23 defender or an attorney licensed by this State.
24 (2) Upon filing with the Court of a verified
25 statement of legal services rendered by the private
26 attorney appointed pursuant to paragraph (1) of this
27 subsection, the Court shall determine a reasonable fee
28 for such services. If the defendant is unable to pay the
29 fee, the Court shall enter an order upon the State to pay
30 the entire fee or such amount as the defendant is unable
31 to pay from funds appropriated by the General Assembly
32 for that purpose.
33 (d) When the facility director determines that:
34 (1) the defendant is no longer subject to
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1 involuntary admission or in need of mental health
2 services on an inpatient basis; and
3 (2) the defendant may be conditionally released
4 because he or she is still in need of mental health
5 services or that the defendant may be discharged as not
6 in need of any mental health services; or
7 (3) the defendant no longer requires placement in a
8 secure setting;
9 the facility director shall give written notice to the Court,
10 State's Attorney and defense attorney. Such notice shall set
11 forth in detail the basis for the recommendation of the
12 facility director, and specify clearly the recommendations,
13 if any, of the facility director, concerning conditional
14 release. Any recommendation for conditional release shall
15 include an evaluation of the defendant's need for
16 psychotropic medication, what provisions should be made, if
17 any, to insure that the defendant will continue to receive
18 psychotropic medication following discharge and what
19 provisions should be made to assure the safety of the
20 defendant and others in the event the defendant is no longer
21 receiving psychotropic medication. Within 30 days of the
22 notification by the facility director, the Court shall set a
23 hearing and make a finding as to whether the defendant is:
24 (i) subject to involuntary admission; or
25 (ii) in need of mental health services in the form
26 of inpatient care; or
27 (iii) in need of mental health services but not
28 subject to involuntary admission or inpatient care; or
29 (iv) no longer in need of mental health services;
30 or
31 (v) no longer requires placement in a secure
32 setting.
33 Upon finding by the Court, the Court shall enter its
34 findings and such appropriate order as provided in subsection
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1 (a) of this Section.
2 (e) A defendant admitted pursuant to this Section, or
3 any person on his behalf, may file a petition for treatment
4 plan review, transfer to a non-secure setting within the
5 Department of Human Services or discharge or conditional
6 release under the standards of this Section in the Court
7 which rendered the verdict. Upon receipt of a petition for
8 treatment plan review, transfer to a non-secure setting or
9 discharge or conditional release, the Court shall set a
10 hearing to be held within 120 days. Thereafter, no new
11 petition may be filed for 120 days without leave of the
12 Court.
13 (f) The Court shall direct that notice of the time and
14 place of the hearing be served upon the defendant, the
15 facility director, the State's Attorney, and the defendant's
16 attorney. If requested by either the State or the defense or
17 if the Court feels it is appropriate, an impartial
18 examination of the defendant by a psychiatrist or clinical
19 psychologist as defined in Section 1-103 of the Mental Health
20 and Developmental Disabilities Code who is not in the employ
21 of the Department of Human Services shall be ordered, and the
22 report considered at the time of the hearing.
23 (g) The findings of the Court shall be established by
24 clear and convincing evidence. The burden of proof and the
25 burden of going forth with the evidence rest with the State
26 when a hearing is held to review the determination of the
27 facility director that the defendant should be transferred to
28 a non-secure setting, discharged or conditionally released.
29 The burden of proof and the burden of going forth with the
30 evidence rest on the defendant when a hearing is held to
31 review a petition filed by or on behalf of such defendant.
32 The evidence shall be presented in open Court with the right
33 of confrontation and cross-examination.
34 (h) Before the court orders that the defendant be
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1 discharged or conditionally released, it shall order the
2 facility director to establish a discharge plan that includes
3 a plan for the defendant's shelter, support, and medication.
4 If appropriate, the court shall order that the facility
5 director establish a program to train the defendant in
6 self-medication under standards established by the Department
7 of Human Services. If the Court finds that the defendant is
8 no longer in need of mental health services it shall order
9 the facility director to discharge the defendant. If the
10 Court finds that the defendant is in need of mental health
11 services, and no longer in need of inpatient care, it shall
12 order the facility director to release the defendant under
13 such conditions as the Court deems appropriate and as
14 provided by this Section. Such conditional release shall be
15 imposed for a period of five years and shall be subject to
16 later modification by the Court as provided by this Section.
17 If the Court finds that the defendant is subject to
18 involuntary admission or in need of mental health services on
19 an inpatient basis, it shall order the facility director not
20 to discharge or release the defendant in accordance with
21 paragraph (b) of this Section.
22 (i) If within the period of the defendant's conditional
23 release, the State's Attorney determines that the defendant
24 has not fulfilled the conditions of his or her release, the
25 State's Attorney may petition the Court to revoke or modify
26 the conditional release of the defendant. Upon the filing of
27 such petition the defendant may be remanded to the custody of
28 the Department, or to any other mental health facility
29 designated by the Department, pending the resolution of the
30 petition. Nothing in this Section shall prevent the
31 emergency admission of a defendant pursuant to Article VI of
32 Chapter III of the Mental Health and Developmental
33 Disabilities Code or the voluntary admission of the defendant
34 pursuant to Article IV of Chapter III of the Mental Health
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1 and Developmental Disabilities Code. If the the Court
2 determines, after hearing evidence, that the defendant has
3 not fulfilled the conditions of release, the Court shall
4 order a hearing to be held consistent with the provisions of
5 paragraph (f) and (g) of this Section. At such hearing, if
6 the Court finds that the defendant is subject to involuntary
7 admission or in need of mental health services on an
8 inpatient basis, it shall enter an order remanding him or her
9 to the Department of Human Services or other facility. If the
10 defendant is remanded to the Department of Human Services, he
11 or she shall be placed in a secure setting unless the Court
12 determines that there are compelling reasons that such
13 placement is not necessary. If the Court finds that the
14 defendant continues to be in need of mental health services
15 but not on an inpatient basis, it may modify the conditions
16 of the original release in order to reasonably assure the
17 defendant's satisfactory progress in treatment and his or her
18 safety and the safety of others in accordance with the
19 standards established in paragraph (1) (D) of subsection (a).
20 In no event shall such conditional release be longer than
21 eight years. Nothing in this Section shall limit a Court's
22 contempt powers or any other powers of a Court.
23 (j) An order of admission under this Section does not
24 affect the remedy of habeas corpus.
25 (k) In the event of a conflict between this Section and
26 the Mental Health and Developmental Disabilities Code or the
27 Mental Health and Developmental Disabilities Confidentiality
28 Act, the provisions of this Section shall govern.
29 (l) This amendatory Act shall apply to all persons who
30 have been found not guilty by reason of insanity and who are
31 presently committed to the Department of Mental Health and
32 Developmental Disabilities (now the Department of Human
33 Services).
34 (m) The Clerk of the Court shall, after the entry of an
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1 order of transfer to a non-secure setting of the Department
2 of Human Services or discharge or conditional release,
3 transmit a certified copy of the order to the Department of
4 Human Services, and the sheriff of the county from which the
5 defendant was admitted. In cases where the arrest of the
6 defendant or the commission of the offense took place in any
7 municipality with a population of more than 25,000 persons,
8 The Clerk of the Court shall also transmit a certified copy
9 of the order of discharge or conditional release to the
10 Illinois Department of State Police, to the proper law
11 enforcement agency for the said municipality where the
12 offense took place and to the sheriff of the county into
13 which the defendant is conditionally discharged. The
14 Illinois Department of State Police shall maintain a
15 centralized record of discharged or conditionally released
16 defendants while they are under court supervision for access
17 and use of appropriate law enforcement agencies provided the
18 municipality has requested such notice in writing.
19 (Source: P.A. 90-105, eff. 7-11-97; 90-593, eff. 6-19-98;
20 91-536, eff. 1-1-00.)".