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


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: (Passed) 2017-08-25 - Public Act . . . . . . . . . 100-0424 [SB1276 Detail]

Download: Illinois-2017-SB1276-Chaptered.html



Public Act 100-0424
SB1276 EnrolledLRB100 00366 RLC 10370 b
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 Section 104-15 as follows:
(725 ILCS 5/104-15) (from Ch. 38, par. 104-15)
Sec. 104-15. Report.
(a) The person or persons conducting an 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 him or to assist in his defense, or
both.
(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 a period of time from the date of the
finding of unfitness one year 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
misdemeanor, the period of time shall be no longer than the
maximum term of imprisonment for the most serious offense. If
the person or persons preparing the report are unable to form
such an opinion, the report shall state the reasons therefor.
The report may include a general description of the type of
treatment needed and of the least physically restrictive form
of treatment therapeutically appropriate.
(c) The report shall indicate what information, if any,
contained therein may be harmful to the mental condition of the
defendant if made known to him.
(d) In addition to the report, a person retained or
appointed by the State or the defense to conduct an examination
shall, upon written request, make 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 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 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. 98-1025, eff. 1-1-15.)
Section 10. The Unified Code of Corrections is amended by
changing Section 5-2-4 as follows:
(730 ILCS 5/5-2-4) (from Ch. 38, par. 1005-2-4)
Sec. 5-2-4. Proceedings after Acquittal by Reason of
Insanity.
(a) After a finding or verdict of not guilty by reason of
insanity under Sections 104-25, 115-3 or 115-4 of the Code of
Criminal Procedure of 1963, the defendant shall be ordered to
the Department of Human Services for an evaluation as to
whether he is in need of mental health services. The order
shall specify whether the evaluation shall be conducted on an
inpatient or outpatient basis. If the evaluation is to be
conducted on an inpatient basis, the defendant shall be placed
in a secure setting. With the court order for evaluation shall
be sent a copy of the arrest report, criminal charges, arrest
record, jail record, any report prepared under Section 115-6 of
the Code of Criminal Procedure of 1963, and any victim impact
statement prepared under Section 6 of the Rights of Crime
Victims and Witnesses Act. After the evaluation and during the
period of time required to determine the appropriate placement,
the defendant shall remain in jail. Individualized placement
evaluations by the Department of Human Services determine the
most appropriate setting for forensic treatment based upon a
number of factors including mental health diagnosis, proximity
to surviving victims, security need, age, gender, and proximity
to family. Upon completion of the placement process the sheriff
shall be notified and shall transport the defendant to the
designated facility.
The Department shall provide the Court with a report of its
evaluation within 30 days of the date of this order. The Court
shall hold a hearing as provided under the Mental Health and
Developmental Disabilities Code to determine if the individual
is: (a) in need of mental health services on an inpatient
basis; (b) in need of mental health services on an outpatient
basis; (c) a person not in need of mental health services. The
Court shall enter its findings.
If the defendant is found to be in need of mental health
services on an inpatient care basis, the Court shall order the
defendant to the Department of Human Services. The defendant
shall be placed in a secure setting. Such defendants placed in
a secure setting shall not be permitted outside the facility's
housing unit unless escorted or accompanied by personnel of the
Department of Human Services or with the prior approval of the
Court for unsupervised on-grounds privileges as provided
herein. Any defendant placed in a secure setting pursuant to
this Section, transported to court hearings or other necessary
appointments off facility grounds by personnel of the
Department of Human Services, shall be placed in security
devices or otherwise secured during the period of
transportation to assure secure transport of the defendant and
the safety of Department of Human Services personnel and
others. These security measures shall not constitute restraint
as defined in the Mental Health and Developmental Disabilities
Code. If the defendant is found to be in need of mental health
services, but not on an inpatient care basis, the Court shall
conditionally release the defendant, under such conditions as
set forth in this Section as will reasonably assure the
defendant's satisfactory progress and participation in
treatment or rehabilitation and the safety of the defendant and
others. If the Court finds the person not in need of mental
health services, then the Court shall order the defendant
discharged from custody.
(a-1) Definitions. For the purposes of this Section:
(A) (Blank).
(B) "In need of mental health services on an inpatient
basis" means: a defendant who has been found not guilty by
reason of insanity but who due to mental illness is
reasonably expected to inflict serious physical harm upon
himself or another and who would benefit from inpatient
care or is in need of inpatient care.
(C) "In need of mental health services on an outpatient
basis" means: a defendant who has been found not guilty by
reason of insanity who is not in need of mental health
services on an inpatient basis, but is in need of
outpatient care, drug and/or alcohol rehabilitation
programs, community adjustment programs, individual,
group, or family therapy, or chemotherapy.
(D) "Conditional Release" means: the release from
either the custody of the Department of Human Services or
the custody of the Court of a person who has been found not
guilty by reason of insanity under such conditions as the
Court may impose which reasonably assure the defendant's
satisfactory progress in treatment or habilitation and the
safety of the defendant and others. The Court shall
consider such terms and conditions which may include, but
need not be limited to, outpatient care, alcoholic and drug
rehabilitation programs, community adjustment programs,
individual, group, family, and chemotherapy, random
testing to ensure the defendant's timely and continuous
taking of any medicines prescribed to control or manage his
or her conduct or mental state, and periodic checks with
the legal authorities and/or the Department of Human
Services. The Court may order as a condition of conditional
release that the defendant not contact the victim of the
offense that resulted in the finding or verdict of not
guilty by reason of insanity or any other person. The Court
may order the Department of Human Services to provide care
to any person conditionally released under this Section.
The Department may contract with any public or private
agency in order to discharge any responsibilities imposed
under this Section. The Department shall monitor the
provision of services to persons conditionally released
under this Section and provide periodic reports to the
Court concerning the services and the condition of the
defendant. Whenever a person is conditionally released
pursuant to this Section, the State's Attorney for the
county in which the hearing is held shall designate in
writing the name, telephone number, and address of a person
employed by him or her who shall be notified in the event
that either the reporting agency or the Department decides
that the conditional release of the defendant should be
revoked or modified pursuant to subsection (i) of this
Section. Such conditional release shall be for a period of
five years. However, the defendant, the person or facility
rendering the treatment, therapy, program or outpatient
care, the Department, or the State's Attorney may petition
the Court for an extension of the conditional release
period for an additional 5 years. Upon receipt of such a
petition, the Court shall hold a hearing consistent with
the provisions of paragraph (a), this paragraph (a-1), and
paragraph (f) of this Section, shall determine whether the
defendant should continue to be subject to the terms of
conditional release, and shall enter an order either
extending the defendant's period of conditional release
for an additional 5 year period or discharging the
defendant. Additional 5-year periods of conditional
release may be ordered following a hearing as provided in
this Section. However, in no event shall the defendant's
period of conditional release continue beyond the maximum
period of commitment ordered by the Court pursuant to
paragraph (b) of this Section. These provisions for
extension of conditional release shall only apply to
defendants conditionally released on or after August 8,
2003. However the extension provisions of Public Act
83-1449 apply only to defendants charged with a forcible
felony.
(E) "Facility director" means the chief officer of a
mental health or developmental disabilities facility or
his or her designee or the supervisor of a program of
treatment or habilitation or his or her designee.
"Designee" may include a physician, clinical psychologist,
social worker, nurse, or clinical professional counselor.
(b) If the Court finds the defendant in need of mental
health services on an inpatient basis, the admission,
detention, care, treatment or habilitation, treatment plans,
review proceedings, including review of treatment and
treatment plans, and discharge of the defendant after such
order shall be under the Mental Health and Developmental
Disabilities Code, except that the initial order for admission
of a defendant acquitted of a felony by reason of insanity
shall be for an indefinite period of time. Such period of
commitment shall not exceed the maximum length of time that the
defendant would have been required to serve, less credit for
good behavior as provided in Section 5-4-1 of the Unified Code
of Corrections, before becoming eligible for release had he
been convicted of and received the maximum sentence for the
most serious crime for which he has been acquitted by reason of
insanity. The Court shall determine the maximum period of
commitment by an appropriate order. During this period of time,
the defendant shall not be permitted to be in the community in
any manner, including but not limited to off-grounds
privileges, with or without escort by personnel of the
Department of Human Services, unsupervised on-grounds
privileges, discharge or conditional or temporary release,
except by a plan as provided in this Section. In no event shall
a defendant's continued unauthorized absence be a basis for
discharge. Not more than 30 days after admission and every 90
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. The report shall include an opinion as to whether the
defendant is currently in need of mental health services on an
inpatient basis or in need of mental health services on an
outpatient basis. The report shall also summarize the basis for
those findings and provide a current summary of the following
items from the treatment plan: (1) an assessment of the
defendant's treatment needs, (2) a description of the services
recommended for treatment, (3) the goals of each type of
element of service, (4) an anticipated timetable for the
accomplishment of the goals, and (5) a designation of the
qualified professional responsible for the implementation of
the plan. The report may also include unsupervised on-grounds
privileges, off-grounds privileges (with or without escort by
personnel of the Department of Human Services), home visits and
participation in work programs, but only where such privileges
have been approved by specific court order, which order may
include such conditions on the defendant as the Court may deem
appropriate and necessary to reasonably assure the defendant's
satisfactory progress in treatment and the safety of the
defendant and others.
(c) Every defendant acquitted of a felony by reason of
insanity and subsequently found to be in need of mental health
services shall be represented by counsel in all proceedings
under this Section and under the Mental Health and
Developmental Disabilities Code.
(1) The Court shall appoint as counsel the public
defender or an attorney licensed by this State.
(2) Upon filing with the Court of a verified statement
of legal services rendered by the private attorney
appointed pursuant to paragraph (1) of this subsection, the
Court shall determine a reasonable fee for such services.
If the defendant is unable to pay the fee, the Court shall
enter an order upon the State to pay the entire fee or such
amount as the defendant is unable to pay from funds
appropriated by the General Assembly for that purpose.
(d) When the facility director determines that:
(1) the defendant is no longer in need of mental health
services on an inpatient basis; and
(2) the defendant may be conditionally released
because he or she is still in need of mental health
services or that the defendant may be discharged as not in
need of any mental health services; or
(3) (blank);
the facility director shall give written notice to the Court,
State's Attorney and defense attorney. Such notice shall set
forth in detail the basis for the recommendation of the
facility director, and specify clearly the recommendations, if
any, of the facility director, concerning conditional release.
Any recommendation for conditional release shall include an
evaluation of the defendant's need for psychotropic
medication, what provisions should be made, if any, to ensure
that the defendant will continue to receive psychotropic
medication following discharge, and what provisions should be
made to assure the safety of the defendant and others in the
event the defendant is no longer receiving psychotropic
medication. Within 30 days of the notification by the facility
director, the Court shall set a hearing and make a finding as
to whether the defendant is:
(i) (blank); or
(ii) in need of mental health services in the form of
inpatient care; or
(iii) in need of mental health services but not subject
to inpatient care; or
(iv) no longer in need of mental health services; or
(v) (blank).
Upon finding by the Court, the Court shall enter its
findings and such appropriate order as provided in subsections
(a) and (a-1) of this Section.
(e) A defendant admitted pursuant to this Section, or any
person on his behalf, may file a petition for treatment plan
review or discharge or conditional release under the standards
of this Section in the Court which rendered the verdict. Upon
receipt of a petition for treatment plan review or discharge or
conditional release, the Court shall set a hearing to be held
within 120 days. Thereafter, no new petition may be filed for
180 days without leave of the Court.
(f) The Court shall direct that notice of the time and
place of the hearing be served upon the defendant, the facility
director, the State's Attorney, and the defendant's attorney.
If requested by either the State or the defense or if the Court
feels it is appropriate, an impartial examination of the
defendant by a psychiatrist or clinical psychologist as defined
in Section 1-103 of the Mental Health and Developmental
Disabilities Code who is not in the employ of the Department of
Human Services shall be ordered, and the report considered at
the time of the hearing.
(g) The findings of the Court shall be established by clear
and convincing evidence. The burden of proof and the burden of
going forth with the evidence rest with the defendant or any
person on the defendant's behalf when a hearing is held to
review a petition filed by or on behalf of the defendant. The
evidence shall be presented in open Court with the right of
confrontation and cross-examination. Such evidence may
include, but is not limited to:
(1) whether the defendant appreciates the harm caused
by the defendant to others and the community by his or her
prior conduct that resulted in the finding of not guilty by
reason of insanity;
(2) Whether the person appreciates the criminality of
conduct similar to the conduct for which he or she was
originally charged in this matter;
(3) the current state of the defendant's illness;
(4) what, if any, medications the defendant is taking
to control his or her mental illness;
(5) what, if any, adverse physical side effects the
medication has on the defendant;
(6) the length of time it would take for the
defendant's mental health to deteriorate if the defendant
stopped taking prescribed medication;
(7) the defendant's history or potential for alcohol
and drug abuse;
(8) the defendant's past criminal history;
(9) any specialized physical or medical needs of the
defendant;
(10) any family participation or involvement expected
upon release and what is the willingness and ability of the
family to participate or be involved;
(11) the defendant's potential to be a danger to
himself, herself, or others; and
(12) any other factor or factors the Court deems
appropriate.
(h) Before the court orders that the defendant be
discharged or conditionally released, it shall order the
facility director to establish a discharge plan that includes a
plan for the defendant's shelter, support, and medication. If
appropriate, the court shall order that the facility director
establish a program to train the defendant in self-medication
under standards established by the Department of Human
Services. If the Court finds, consistent with the provisions of
this Section, that the defendant is no longer in need of mental
health services it shall order the facility director to
discharge the defendant. If the Court finds, consistent with
the provisions of this Section, that the defendant is in need
of mental health services, and no longer in need of inpatient
care, it shall order the facility director to release the
defendant under such conditions as the Court deems appropriate
and as provided by this Section. Such conditional release shall
be imposed for a period of 5 years as provided in paragraph (D)
of subsection (a-1) and shall be subject to later modification
by the Court as provided by this Section. If the Court finds
consistent with the provisions in this Section that the
defendant is in need of mental health services on an inpatient
basis, it shall order the facility director not to discharge or
release the defendant in accordance with paragraph (b) of this
Section.
(i) If within the period of the defendant's conditional
release the State's Attorney determines that the defendant has
not fulfilled the conditions of his or her release, the State's
Attorney may petition the Court to revoke or modify the
conditional release of the defendant. Upon the filing of such
petition the defendant may be remanded to the custody of the
Department, or to any other mental health facility designated
by the Department, pending the resolution of the petition.
Nothing in this Section shall prevent the emergency admission
of a defendant pursuant to Article VI of Chapter III of the
Mental Health and Developmental Disabilities Code or the
voluntary admission of the defendant pursuant to Article IV of
Chapter III of the Mental Health and Developmental Disabilities
Code. If the Court determines, after hearing evidence, that the
defendant has not fulfilled the conditions of release, the
Court shall order a hearing to be held consistent with the
provisions of paragraph (f) and (g) of this Section. At such
hearing, if the Court finds that the defendant is in need of
mental health services on an inpatient basis, it shall enter an
order remanding him or her to the Department of Human Services
or other facility. If the defendant is remanded to the
Department of Human Services, he or she shall be placed in a
secure setting unless the Court determines that there are
compelling reasons that such placement is not necessary. If the
Court finds that the defendant continues to be in need of
mental health services but not on an inpatient basis, it may
modify the conditions of the original release in order to
reasonably assure the defendant's satisfactory progress in
treatment and his or her safety and the safety of others in
accordance with the standards established in paragraph (D) of
subsection (a-1). Nothing in this Section shall limit a Court's
contempt powers or any other powers of a Court.
(j) An order of admission under this Section does not
affect the remedy of habeas corpus.
(k) In the event of a conflict between this Section and the
Mental Health and Developmental Disabilities Code or the Mental
Health and Developmental Disabilities Confidentiality Act, the
provisions of this Section shall govern.
(l) This amendatory Act shall apply to all persons who have
been found not guilty by reason of insanity and who are
presently committed to the Department of Mental Health and
Developmental Disabilities (now the Department of Human
Services).
(m) The Clerk of the Court shall transmit a certified copy
of the order of discharge or conditional release to the
Department of Human Services, to the sheriff of the county from
which the defendant was admitted, to the Illinois Department of
State Police, to the proper law enforcement agency for the
municipality where the offense took place, and to the sheriff
of the county into which the defendant is conditionally
discharged. The Illinois Department of State Police shall
maintain a centralized record of discharged or conditionally
released defendants while they are under court supervision for
access and use of appropriate law enforcement agencies.
(Source: P.A. 98-1025, eff. 8-22-14.)
Section 99. Effective date. This Act takes effect January
1, 2018.
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