Bill Text: IL SB1276 | 2017-2018 | 100th General Assembly | Engrossed


Bill Title: Amends the Code of Criminal Procedure of 1963 concerning unfit defendants. Provides that if the report to the court, the State, and the defense indicates that the defendant is not fit to stand trial or to plead because of a disability, the report shall include an opinion as to the likelihood of the defendant attaining fitness within a period of time from the date of the finding of unfitness (rather than one year) if provided with a course of treatment. Provides that for a defendant charged with a felony, the period of time shall be one year. Provides that for a defendant charged with a misdemeanor, the period of time shall be no longer than the maximum term of imprisonment for the most serious offense. Provides that not more than 30 days after admission and every 90 (rather than 60) days thereafter so long as the initial order remains in effect, the facility director shall file a treatment plan report in writing with the court and forward a copy of the treatment plan report to the clerk of the court, the State's Attorney, and the defendant's attorney, if the defendant is represented by counsel, or to a person authorized by the defendant under the Mental Health and Developmental Disabilities Confidentiality Act to be sent a copy of the report. Effective January 1, 2018.

Spectrum: Bipartisan Bill

Status: (Engrossed) 2017-05-26 - Final Action Deadline Extended-9(b) May 31, 2017 [SB1276 Detail]

Download: Illinois-2017-SB1276-Engrossed.html



SB1276 EngrossedLRB100 00366 RLC 10370 b
1 AN ACT concerning criminal law.
2 Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4 Section 5. The Code of Criminal Procedure of 1963 is
5amended by changing Section 104-15 as follows:
6 (725 ILCS 5/104-15) (from Ch. 38, par. 104-15)
7 Sec. 104-15. Report.
8 (a) The person or persons conducting an examination of the
9defendant, pursuant to paragraph (a) or (b) of Section 104-13
10shall submit a written report to the court, the State, and the
11defense within 30 days of the date of the order. The report
12shall include:
13 (1) A diagnosis and an explanation as to how it was
14 reached and the facts upon which it is based;
15 (2) A description of the defendant's mental or physical
16 disability, if any; its severity; and an opinion as to
17 whether and to what extent it impairs the defendant's
18 ability to understand the nature and purpose of the
19 proceedings against him or to assist in his defense, or
20 both.
21 (b) If the report indicates that the defendant is not fit
22to stand trial or to plead because of a disability, the report
23shall include an opinion as to the likelihood of the defendant

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1attaining fitness within a period of time from the date of the
2finding of unfitness one year if provided with a course of
3treatment. For a defendant charged with a felony, the period of
4time shall be one year. For a defendant charged with a
5misdemeanor, the period of time shall be no longer than the
6maximum term of imprisonment for the most serious offense. If
7the person or persons preparing the report are unable to form
8such an opinion, the report shall state the reasons therefor.
9The report may include a general description of the type of
10treatment needed and of the least physically restrictive form
11of treatment therapeutically appropriate.
12 (c) The report shall indicate what information, if any,
13contained therein may be harmful to the mental condition of the
14defendant if made known to him.
15 (d) In addition to the report, a person retained or
16appointed by the State or the defense to conduct an examination
17shall, upon written request, make his or her notes, other
18evaluations reviewed or relied upon by the testifying witness,
19and any videotaped interviews available to another examiner of
20the defendant. All forensic interviews conducted by a person
21retained or appointed by the State or the defense shall be
22videotaped unless doing so would be impractical. In the event
23that the interview is not videotaped, the examiner may still
24testify as to the person's fitness and the court may only
25consider the lack of compliance in according the weight and not
26the admissibility of the expert testimony. An examiner may use

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1these materials as part of his or her diagnosis and explanation
2but shall not otherwise disclose the contents, including at a
3hearing before the court, except as otherwise provided in
4Section 104-14 of this Code.
5(Source: P.A. 98-1025, eff. 1-1-15.)
6 Section 10. The Unified Code of Corrections is amended by
7changing Section 5-2-4 as follows:
8 (730 ILCS 5/5-2-4) (from Ch. 38, par. 1005-2-4)
9 Sec. 5-2-4. Proceedings after Acquittal by Reason of
10Insanity.
11 (a) After a finding or verdict of not guilty by reason of
12insanity under Sections 104-25, 115-3 or 115-4 of the Code of
13Criminal Procedure of 1963, the defendant shall be ordered to
14the Department of Human Services for an evaluation as to
15whether he is in need of mental health services. The order
16shall specify whether the evaluation shall be conducted on an
17inpatient or outpatient basis. If the evaluation is to be
18conducted on an inpatient basis, the defendant shall be placed
19in a secure setting. With the court order for evaluation shall
20be sent a copy of the arrest report, criminal charges, arrest
21record, jail record, any report prepared under Section 115-6 of
22the Code of Criminal Procedure of 1963, and any victim impact
23statement prepared under Section 6 of the Rights of Crime
24Victims and Witnesses Act. After the evaluation and during the

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1period of time required to determine the appropriate placement,
2the defendant shall remain in jail. Individualized placement
3evaluations by the Department of Human Services determine the
4most appropriate setting for forensic treatment based upon a
5number of factors including mental health diagnosis, proximity
6to surviving victims, security need, age, gender, and proximity
7to family. Upon completion of the placement process the sheriff
8shall be notified and shall transport the defendant to the
9designated facility.
10 The Department shall provide the Court with a report of its
11evaluation within 30 days of the date of this order. The Court
12shall hold a hearing as provided under the Mental Health and
13Developmental Disabilities Code to determine if the individual
14is: (a) in need of mental health services on an inpatient
15basis; (b) in need of mental health services on an outpatient
16basis; (c) a person not in need of mental health services. The
17Court shall enter its findings.
18 If the defendant is found to be in need of mental health
19services on an inpatient care basis, the Court shall order the
20defendant to the Department of Human Services. The defendant
21shall be placed in a secure setting. Such defendants placed in
22a secure setting shall not be permitted outside the facility's
23housing unit unless escorted or accompanied by personnel of the
24Department of Human Services or with the prior approval of the
25Court for unsupervised on-grounds privileges as provided
26herein. Any defendant placed in a secure setting pursuant to

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1this Section, transported to court hearings or other necessary
2appointments off facility grounds by personnel of the
3Department of Human Services, shall be placed in security
4devices or otherwise secured during the period of
5transportation to assure secure transport of the defendant and
6the safety of Department of Human Services personnel and
7others. These security measures shall not constitute restraint
8as defined in the Mental Health and Developmental Disabilities
9Code. If the defendant is found to be in need of mental health
10services, but not on an inpatient care basis, the Court shall
11conditionally release the defendant, under such conditions as
12set forth in this Section as will reasonably assure the
13defendant's satisfactory progress and participation in
14treatment or rehabilitation and the safety of the defendant and
15others. If the Court finds the person not in need of mental
16health services, then the Court shall order the defendant
17discharged from custody.
18 (a-1) Definitions. For the purposes of this Section:
19 (A) (Blank).
20 (B) "In need of mental health services on an inpatient
21 basis" means: a defendant who has been found not guilty by
22 reason of insanity but who due to mental illness is
23 reasonably expected to inflict serious physical harm upon
24 himself or another and who would benefit from inpatient
25 care or is in need of inpatient care.
26 (C) "In need of mental health services on an outpatient

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1 basis" means: a defendant who has been found not guilty by
2 reason of insanity who is not in need of mental health
3 services on an inpatient basis, but is in need of
4 outpatient care, drug and/or alcohol rehabilitation
5 programs, community adjustment programs, individual,
6 group, or family therapy, or chemotherapy.
7 (D) "Conditional Release" means: the release from
8 either the custody of the Department of Human Services or
9 the custody of the Court of a person who has been found not
10 guilty by reason of insanity under such conditions as the
11 Court may impose which reasonably assure the defendant's
12 satisfactory progress in treatment or habilitation and the
13 safety of the defendant and others. The Court shall
14 consider such terms and conditions which may include, but
15 need not be limited to, outpatient care, alcoholic and drug
16 rehabilitation programs, community adjustment programs,
17 individual, group, family, and chemotherapy, random
18 testing to ensure the defendant's timely and continuous
19 taking of any medicines prescribed to control or manage his
20 or her conduct or mental state, and periodic checks with
21 the legal authorities and/or the Department of Human
22 Services. The Court may order as a condition of conditional
23 release that the defendant not contact the victim of the
24 offense that resulted in the finding or verdict of not
25 guilty by reason of insanity or any other person. The Court
26 may order the Department of Human Services to provide care

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1 to any person conditionally released under this Section.
2 The Department may contract with any public or private
3 agency in order to discharge any responsibilities imposed
4 under this Section. The Department shall monitor the
5 provision of services to persons conditionally released
6 under this Section and provide periodic reports to the
7 Court concerning the services and the condition of the
8 defendant. Whenever a person is conditionally released
9 pursuant to this Section, the State's Attorney for the
10 county in which the hearing is held shall designate in
11 writing the name, telephone number, and address of a person
12 employed by him or her who shall be notified in the event
13 that either the reporting agency or the Department decides
14 that the conditional release of the defendant should be
15 revoked or modified pursuant to subsection (i) of this
16 Section. Such conditional release shall be for a period of
17 five years. However, the defendant, the person or facility
18 rendering the treatment, therapy, program or outpatient
19 care, the Department, or the State's Attorney may petition
20 the Court for an extension of the conditional release
21 period for an additional 5 years. Upon receipt of such a
22 petition, the Court shall hold a hearing consistent with
23 the provisions of paragraph (a), this paragraph (a-1), and
24 paragraph (f) of this Section, shall determine whether the
25 defendant should continue to be subject to the terms of
26 conditional release, and shall enter an order either

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1 extending the defendant's period of conditional release
2 for an additional 5 year period or discharging the
3 defendant. Additional 5-year periods of conditional
4 release may be ordered following a hearing as provided in
5 this Section. However, in no event shall the defendant's
6 period of conditional release continue beyond the maximum
7 period of commitment ordered by the Court pursuant to
8 paragraph (b) of this Section. These provisions for
9 extension of conditional release shall only apply to
10 defendants conditionally released on or after August 8,
11 2003. However the extension provisions of Public Act
12 83-1449 apply only to defendants charged with a forcible
13 felony.
14 (E) "Facility director" means the chief officer of a
15 mental health or developmental disabilities facility or
16 his or her designee or the supervisor of a program of
17 treatment or habilitation or his or her designee.
18 "Designee" may include a physician, clinical psychologist,
19 social worker, nurse, or clinical professional counselor.
20 (b) If the Court finds the defendant in need of mental
21health services on an inpatient basis, the admission,
22detention, care, treatment or habilitation, treatment plans,
23review proceedings, including review of treatment and
24treatment plans, and discharge of the defendant after such
25order shall be under the Mental Health and Developmental
26Disabilities Code, except that the initial order for admission

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1of a defendant acquitted of a felony by reason of insanity
2shall be for an indefinite period of time. Such period of
3commitment shall not exceed the maximum length of time that the
4defendant would have been required to serve, less credit for
5good behavior as provided in Section 5-4-1 of the Unified Code
6of Corrections, before becoming eligible for release had he
7been convicted of and received the maximum sentence for the
8most serious crime for which he has been acquitted by reason of
9insanity. The Court shall determine the maximum period of
10commitment by an appropriate order. During this period of time,
11the defendant shall not be permitted to be in the community in
12any manner, including but not limited to off-grounds
13privileges, with or without escort by personnel of the
14Department of Human Services, unsupervised on-grounds
15privileges, discharge or conditional or temporary release,
16except by a plan as provided in this Section. In no event shall
17a defendant's continued unauthorized absence be a basis for
18discharge. Not more than 30 days after admission and every 90
1960 days thereafter so long as the initial order remains in
20effect, the facility director shall file a treatment plan
21report in writing with the court and forward a copy of the
22treatment plan report to the clerk of the court, the State's
23Attorney, and the defendant's attorney, if the defendant is
24represented by counsel, or to a person authorized by the
25defendant under the Mental Health and Developmental
26Disabilities Confidentiality Act to be sent a copy of the

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1report. The report shall include an opinion as to whether the
2defendant is currently in need of mental health services on an
3inpatient basis or in need of mental health services on an
4outpatient basis. The report shall also summarize the basis for
5those findings and provide a current summary of the following
6items from the treatment plan: (1) an assessment of the
7defendant's treatment needs, (2) a description of the services
8recommended for treatment, (3) the goals of each type of
9element of service, (4) an anticipated timetable for the
10accomplishment of the goals, and (5) a designation of the
11qualified professional responsible for the implementation of
12the plan. The report may also include unsupervised on-grounds
13privileges, off-grounds privileges (with or without escort by
14personnel of the Department of Human Services), home visits and
15participation in work programs, but only where such privileges
16have been approved by specific court order, which order may
17include such conditions on the defendant as the Court may deem
18appropriate and necessary to reasonably assure the defendant's
19satisfactory progress in treatment and the safety of the
20defendant and others.
21 (c) Every defendant acquitted of a felony by reason of
22insanity and subsequently found to be in need of mental health
23services shall be represented by counsel in all proceedings
24under this Section and under the Mental Health and
25Developmental Disabilities Code.
26 (1) The Court shall appoint as counsel the public

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1 defender or an attorney licensed by this State.
2 (2) Upon filing with the Court of a verified statement
3 of legal services rendered by the private attorney
4 appointed pursuant to paragraph (1) of this subsection, the
5 Court shall determine a reasonable fee for such services.
6 If the defendant is unable to pay the fee, the Court shall
7 enter an order upon the State to pay the entire fee or such
8 amount as the defendant is unable to pay from funds
9 appropriated by the General Assembly for that purpose.
10 (d) When the facility director determines that:
11 (1) the defendant is no longer in need of mental health
12 services on an inpatient basis; and
13 (2) the defendant may be conditionally released
14 because he or she is still in need of mental health
15 services or that the defendant may be discharged as not in
16 need of any mental health services; or
17 (3) (blank);
18the facility director shall give written notice to the Court,
19State's Attorney and defense attorney. Such notice shall set
20forth in detail the basis for the recommendation of the
21facility director, and specify clearly the recommendations, if
22any, of the facility director, concerning conditional release.
23Any recommendation for conditional release shall include an
24evaluation of the defendant's need for psychotropic
25medication, what provisions should be made, if any, to ensure
26that the defendant will continue to receive psychotropic

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1medication following discharge, and what provisions should be
2made to assure the safety of the defendant and others in the
3event the defendant is no longer receiving psychotropic
4medication. Within 30 days of the notification by the facility
5director, the Court shall set a hearing and make a finding as
6to whether the defendant is:
7 (i) (blank); or
8 (ii) in need of mental health services in the form of
9 inpatient care; or
10 (iii) in need of mental health services but not subject
11 to inpatient care; or
12 (iv) no longer in need of mental health services; or
13 (v) (blank).
14 Upon finding by the Court, the Court shall enter its
15findings and such appropriate order as provided in subsections
16(a) and (a-1) of this Section.
17 (e) A defendant admitted pursuant to this Section, or any
18person on his behalf, may file a petition for treatment plan
19review or discharge or conditional release under the standards
20of this Section in the Court which rendered the verdict. Upon
21receipt of a petition for treatment plan review or discharge or
22conditional release, the Court shall set a hearing to be held
23within 120 days. Thereafter, no new petition may be filed for
24180 days without leave of the Court.
25 (f) The Court shall direct that notice of the time and
26place of the hearing be served upon the defendant, the facility

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1director, the State's Attorney, and the defendant's attorney.
2If requested by either the State or the defense or if the Court
3feels it is appropriate, an impartial examination of the
4defendant by a psychiatrist or clinical psychologist as defined
5in Section 1-103 of the Mental Health and Developmental
6Disabilities Code who is not in the employ of the Department of
7Human Services shall be ordered, and the report considered at
8the time of the hearing.
9 (g) The findings of the Court shall be established by clear
10and convincing evidence. The burden of proof and the burden of
11going forth with the evidence rest with the defendant or any
12person on the defendant's behalf when a hearing is held to
13review a petition filed by or on behalf of the defendant. The
14evidence shall be presented in open Court with the right of
15confrontation and cross-examination. Such evidence may
16include, but is not limited to:
17 (1) whether the defendant appreciates the harm caused
18 by the defendant to others and the community by his or her
19 prior conduct that resulted in the finding of not guilty by
20 reason of insanity;
21 (2) Whether the person appreciates the criminality of
22 conduct similar to the conduct for which he or she was
23 originally charged in this matter;
24 (3) the current state of the defendant's illness;
25 (4) what, if any, medications the defendant is taking
26 to control his or her mental illness;

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1 (5) what, if any, adverse physical side effects the
2 medication has on the defendant;
3 (6) the length of time it would take for the
4 defendant's mental health to deteriorate if the defendant
5 stopped taking prescribed medication;
6 (7) the defendant's history or potential for alcohol
7 and drug abuse;
8 (8) the defendant's past criminal history;
9 (9) any specialized physical or medical needs of the
10 defendant;
11 (10) any family participation or involvement expected
12 upon release and what is the willingness and ability of the
13 family to participate or be involved;
14 (11) the defendant's potential to be a danger to
15 himself, herself, or others; and
16 (12) any other factor or factors the Court deems
17 appropriate.
18 (h) Before the court orders that the defendant be
19discharged or conditionally released, it shall order the
20facility director to establish a discharge plan that includes a
21plan for the defendant's shelter, support, and medication. If
22appropriate, the court shall order that the facility director
23establish a program to train the defendant in self-medication
24under standards established by the Department of Human
25Services. If the Court finds, consistent with the provisions of
26this Section, that the defendant is no longer in need of mental

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1health services it shall order the facility director to
2discharge the defendant. If the Court finds, consistent with
3the provisions of this Section, that the defendant is in need
4of mental health services, and no longer in need of inpatient
5care, it shall order the facility director to release the
6defendant under such conditions as the Court deems appropriate
7and as provided by this Section. Such conditional release shall
8be imposed for a period of 5 years as provided in paragraph (D)
9of subsection (a-1) and shall be subject to later modification
10by the Court as provided by this Section. If the Court finds
11consistent with the provisions in this Section that the
12defendant is in need of mental health services on an inpatient
13basis, it shall order the facility director not to discharge or
14release the defendant in accordance with paragraph (b) of this
15Section.
16 (i) If within the period of the defendant's conditional
17release the State's Attorney determines that the defendant has
18not fulfilled the conditions of his or her release, the State's
19Attorney may petition the Court to revoke or modify the
20conditional release of the defendant. Upon the filing of such
21petition the defendant may be remanded to the custody of the
22Department, or to any other mental health facility designated
23by the Department, pending the resolution of the petition.
24Nothing in this Section shall prevent the emergency admission
25of a defendant pursuant to Article VI of Chapter III of the
26Mental Health and Developmental Disabilities Code or the

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1voluntary admission of the defendant pursuant to Article IV of
2Chapter III of the Mental Health and Developmental Disabilities
3Code. If the Court determines, after hearing evidence, that the
4defendant has not fulfilled the conditions of release, the
5Court shall order a hearing to be held consistent with the
6provisions of paragraph (f) and (g) of this Section. At such
7hearing, if the Court finds that the defendant is in need of
8mental health services on an inpatient basis, it shall enter an
9order remanding him or her to the Department of Human Services
10or other facility. If the defendant is remanded to the
11Department of Human Services, he or she shall be placed in a
12secure setting unless the Court determines that there are
13compelling reasons that such placement is not necessary. If the
14Court finds that the defendant continues to be in need of
15mental health services but not on an inpatient basis, it may
16modify the conditions of the original release in order to
17reasonably assure the defendant's satisfactory progress in
18treatment and his or her safety and the safety of others in
19accordance with the standards established in paragraph (D) of
20subsection (a-1). Nothing in this Section shall limit a Court's
21contempt powers or any other powers of a Court.
22 (j) An order of admission under this Section does not
23affect the remedy of habeas corpus.
24 (k) In the event of a conflict between this Section and the
25Mental Health and Developmental Disabilities Code or the Mental
26Health and Developmental Disabilities Confidentiality Act, the

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1provisions of this Section shall govern.
2 (l) This amendatory Act shall apply to all persons who have
3been found not guilty by reason of insanity and who are
4presently committed to the Department of Mental Health and
5Developmental Disabilities (now the Department of Human
6Services).
7 (m) The Clerk of the Court shall transmit a certified copy
8of the order of discharge or conditional release to the
9Department of Human Services, to the sheriff of the county from
10which the defendant was admitted, to the Illinois Department of
11State Police, to the proper law enforcement agency for the
12municipality where the offense took place, and to the sheriff
13of the county into which the defendant is conditionally
14discharged. The Illinois Department of State Police shall
15maintain a centralized record of discharged or conditionally
16released defendants while they are under court supervision for
17access and use of appropriate law enforcement agencies.
18(Source: P.A. 98-1025, eff. 8-22-14.)
19 Section 99. Effective date. This Act takes effect January
201, 2018.
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