103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB2042

Introduced 2/9/2023, by Sen. Cristina H. Pacione-Zayas

SYNOPSIS AS INTRODUCED:
See Index

Amends the Juvenile Court Act of 1987. Establishes procedures for determining whether a child is fit to stand trial. Provides that the procedures apply to a child under the age of 21, regardless of whether the person is subject to the Act or prosecuted under the criminal laws of the State. Provides that unfitness may result from the presence of any condition or confluence of conditions, including, but not limited to, mental illness, substance use disorder, developmental disability, chronological immaturity, relative immaturity, or child traumatic stress. Provides that a diagnosis is not required for a finding of unfitness. Provides that a child is unfit when the child either: (1) lacks sufficient present ability to consult with the child's attorney with a reasonable degree of rational understanding, as evidenced by lacking the ability to disclose to the attorney facts pertinent to the proceedings at issue and to assist in the child's defense; or (2) lacks a rational or a factual understanding of the proceedings against the child, as evidenced by certain specified factors. Provides that the issue of the child's fitness to stand trial, to plead, or to be sentenced may be raised by the child's attorney, the State, or the court at any time before a plea is entered or before, during, or after trial. Provides that in making determinations on the issue of a child's fitness, the following burdens of proof and presumptions shall apply: (1) when the court finds a bona fide doubt as to the fitness of a child, the State bears the burden of proving that the child is fit by clear and convincing evidence; and (2) a child who is receiving medication shall not be presumed to be fit or unfit to stand trial solely by virtue of the receipt of that medication. Provides that the Illinois Juvenile Justice Commission shall develop and recommend mechanisms to collect and analyze data, disaggregated by race, ethnicity, gender, geography, age, and socioeconomic status, resulting from the implementation of these provisions. Provides that the report and recommendations shall be submitted to the General Assembly on or before January 1, 2024. Contains a severability provision. Effective July 1, 2023.
LRB103 27654 RLC 54031 b

A BILL FOR

SB2042LRB103 27654 RLC 54031 b
1 AN ACT concerning courts.
2 Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4 Section 5. The Juvenile Court Act of 1987 is amended by
5adding Part 5A to Article V as follows:
6 (705 ILCS 405/Art. Pt. 5A heading new)
7
PART 5A. FITNESS TO STAND TRIAL
8 (705 ILCS 405/5-5A-101 new)
9 Sec. 5-5A-101. Purpose. This Part recognizes that children
10are substantially different from adults and therefore creates
11procedures to establish fitness to stand trial that
12accommodate these differences. This Part is intended to
13support children through practices that are trauma-informed
14and that protect children's rights and dignity; questions of
15interpretation shall be resolved in line with these practices.
16This Part recognizes that the ability to understand charges
17and to participate meaningfully in one's own defense evolve
18gradually throughout childhood and early adulthood and that
19each child deserves developmentally appropriate responses that
20reflect the best understanding of the child's current
21abilities.

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1 (705 ILCS 405/5-5A-105 new)
2 Sec. 5-5A-105. Definitions. As used in this Part:
3 "Child" means a person under the age of 21, regardless of
4whether the person is subject to this Act or prosecuted under
5the criminal laws of this State.
6 "Child traumatic stress" means exposure to one or more
7traumatic events over the course of a child's life that result
8in that child developing reactions that persist and that
9interfere with the child's functional, social, adaptive, or
10intellectual ability.
11 "Chronological immaturity" means a lack of functional,
12social, adaptive, or intellectual ability due to chronological
13age.
14 "Developmental disability" means a disability that is
15attributable to an intellectual disability, cerebral palsy,
16epilepsy, autism, a learning disability, or any other
17condition that results in impaired functional, social,
18adaptive, or intellectual ability.
19 "Mental illness" means a mental or emotional disorder that
20substantially impairs a person's thought, perception of
21reality, emotional process, judgment, behavior, or ability to
22cope with the ordinary demands of life, but does not include
23behavioral disorders.
24 "Relative immaturity" means a lack of functional, social,
25adaptive, or intellectual ability when a child is compared to
26other children of the same chronological age.

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1 "Substance use disorder" has the same meaning as provided
2in Section 1-10 of the Substance Use Disorder Act.
3 (705 ILCS 405/5-5A-110 new)
4 Sec. 5-5A-110. Unfitness standard. Unfitness may result
5from the presence of any condition or confluence of
6conditions, including, but not limited to, mental illness,
7substance use disorder, developmental disability,
8chronological immaturity, relative immaturity, or child
9traumatic stress. A diagnosis is not required for a finding of
10unfitness. A child is unfit when the child either:
11 (1) lacks sufficient present ability to consult with
12 the child's attorney with a reasonable degree of rational
13 understanding, as evidenced by lacking the ability to
14 disclose to the attorney facts pertinent to the
15 proceedings at issue and to assist in the child's defense;
16 or
17 (2) lacks a rational or a factual understanding of the
18 proceedings against the child, as evidenced by any one or
19 more of the following:
20 (A) a lack of ability to identify who the
21 participants are, including the judge, child's
22 attorney, State's Attorney, or qualified expert;
23 (B) a lack of ability to differentiate the
24 multiple roles a single participant could serve in
25 different proceedings the child is involved in;

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1 (C) a lack of understanding of the allegations in
2 the petition for adjudication of delinquency;
3 (D) a lack of understanding of the range of
4 possible dispositions that may be imposed in the
5 proceedings;
6 (E) a lack of ability to use the factual
7 understandings and factors in subparagraphs (A)
8 through (D) of this subsection to make rational
9 decisions; or
10 (F) a lack of any other factors that a qualified
11 expert deems relevant.
12 (705 ILCS 405/5-5A-115 new)
13 Sec. 5-5A-115. Raising the issue of unfitness.
14 (a) The issue of the child's fitness to stand trial, to
15plead, or to be sentenced may be raised by the child's
16attorney, the State, or the court at any time before a plea is
17entered or before, during, or after trial.
18 (b) When the issue of the child's fitness is raised, the
19court must determine whether there is a bona fide doubt that
20the child is fit. The court shall find a bona fide doubt when
21evidence is presented or proffered that suggests that the
22child could be unfit. If the court finds that there is a bona
23fide doubt, the court shall order a fitness evaluation
24pursuant to Section 5-5A-125 before proceeding further.
25Nothing in this Section shall operate to extinguish any rights

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1of a child established by attorney-client privilege.
2 (c) When a child is being prosecuted under the criminal
3laws of this State pursuant to Section 5-130 or 5-805, the
4criminal court shall apply the fitness standards in this Part.
5If the issue of the child's fitness is raised prior to the
6resolution of a transfer proceeding pursuant to Section 5-805,
7the juvenile court shall apply the fitness standards as set
8forth in this Part.
9 (705 ILCS 405/5-5A-120 new)
10 Sec. 5-5A-120. Burdens and presumptions. In making
11determinations on the issue of a child's fitness, the
12following burdens of proof and presumptions shall apply:
13 (1) when the court finds a bona fide doubt as to the
14 fitness of a child pursuant to Section 5-5A-115, the State
15 bears the burden of proving that the child is fit by clear
16 and convincing evidence; and
17 (2) a child who is receiving medication shall not be
18 presumed to be fit or unfit to stand trial solely by virtue
19 of the receipt of that medication.
20 (705 ILCS 405/5-5A-125 new)
21 Sec. 5-5A-125. Fitness evaluation. When the court orders a
22fitness evaluation pursuant to subsection (b) of Section
235-5A-115, the court must appoint one or more qualified experts
24pursuant to Section 5-5A-135. Each expert must evaluate

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1whether the child is fit and must submit a report of the
2expert's findings to the court pursuant to Section 5-5A-160.
3 (705 ILCS 405/5-5A-130 new)
4 Sec. 5-5A-130. Location of evaluation. A fitness
5evaluation ordered pursuant to subsection (b) of Section
65-5A-115 must be conducted in the least restrictive
7environment for the child. The evaluation must be conducted in
8person whenever possible. Video technology for a remote
9evaluation may be used only as a last resort. If video
10technology is used, it must be a secure platform.
11 (705 ILCS 405/5-5A-135 new)
12 Sec. 5-5A-135. Qualification of experts. An expert
13evaluating the child pursuant to Section 5-5A-125 must either
14be a licensed clinical psychologist or psychiatrist with
15training and experience in forensics, child development, and
16child trauma.
17 (705 ILCS 405/5-5A-140 new)
18 Sec. 5-5A-140. Timeline for evaluation. The fitness
19evaluation ordered pursuant to subsection (b) of Section
205-5A-115 and report written pursuant to Section 5-5A-160 must
21be completed within 30 days of a court order entered pursuant
22to subsection (b) of Section 5-5A-115. The time for completion
23of the fitness evaluation may be extended an additional 30

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1days for good cause if the child is not in custody.
2 (705 ILCS 405/5-5A-145 new)
3 Sec. 5-5A-145. Counsel at evaluation. The child's counsel
4must be allowed to be present at the evaluation conducted, if
5requested by child's counsel, pursuant to Section 5-5A-125.
6 (705 ILCS 405/5-5A-150 new)
7 Sec. 5-5A-150. Statements made during evaluation. No
8statement made by the child during the evaluation conducted
9pursuant to Section 5-5A-125 shall be used against the child
10in the current court proceedings or in any future proceedings.
11No statement made by the child relating to the alleged offense
12or other offenses shall be included in the report required
13under Section 5-5A-160. The court must advise the child before
14the evaluation takes place that no statement made during the
15evaluation shall be used against the child.
16 (705 ILCS 405/5-5A-155 new)
17 Sec. 5-5A-155. Recordings of evaluations and privacy.
18 (a) An evaluation of the child conducted pursuant to
19Section 5-5A-125 shall be video recorded.
20 (b) The video recording of a fitness evaluation is
21confidential and may be viewed only by the court, the expert
22conducting the evaluation defined in Section 5-5A-125, the
23child's attorney, the State, and any other expert in the

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1proceedings deemed necessary by the court and pursuant to
2Section 5-910.
3 (705 ILCS 405/5-5A-160 new)
4 Sec. 5-5A-160. Contents of evaluation report.
5 (a) When an evaluation is conducted pursuant to Section
65-5A-125, the appointed expert must submit a written report of
7the findings to the court. The evaluation report must detail
8the methods and tools used during the evaluation and be made in
9writing.
10 (b) The evaluation report must contain:
11 (1) an assessment of any mental illness, substance use
12 disorder, or developmental disability of the child,
13 including:
14 (A) the results of a mental status exam;
15 (B) a description of the history and current
16 status of any symptoms of any mental illness or
17 developmental disability, or both (a diagnosis is not
18 required);
19 (2) an assessment of the child's chronological and
20 relative immaturity;
21 (3) an assessment of any child traumatic stress,
22 including a description of the child's history of exposure
23 to traumatic events;
24 (4) an assessment of any other condition of the child
25 that could impact the child's functional abilities related

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1 to fitness to stand trial;
2 (5) an assessment of the child's rational and factual
3 understandings related to fitness to stand trial, the
4 unfitness standard in Section 5-5A-110, and the
5 relationship of these abilities to any conditions of the
6 child as assessed in paragraphs (1) through (4);
7 (6) whether the expert, based on the evaluation and in
8 the expert's professional judgment, believes the child is
9 fit;
10 (7) if the expert believes that the child is unfit,
11 whether the expert believes there is a substantial
12 probability that the child will attain fitness within the
13 statutory period to attain fitness;
14 (8) recommendations, if the expert believes the child
15 is unfit, including:
16 (A) services that would help the child attain
17 fitness;
18 (B) placement for services to attain fitness; and
19 (C) risk assessments needed prior to placement;
20 and
21 (9) opinions on:
22 (A) the likelihood of the success of the services
23 recommended; and
24 (B) the length of time anticipated to attain
25 fitness.

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1 (705 ILCS 405/5-5A-165 new)
2 Sec. 5-5A-165. Hearing to determine fitness.
3 (a) When a bona fide doubt of fitness has been raised, the
4court shall conduct a hearing to determine the issue of the
5child's fitness within 30 days of receipt of the evaluation
6report described in Section 5-5A-160, unless the timeline is
7waived by the child's counsel.
8 (b) The child has the right to be present at every hearing
9on the issue of the child's fitness.
10 (c) On the basis of the evidence before it, the court must
11determine whether the child is unfit to stand trial pursuant
12to Section 5-5A-110. If the court finds that the child is
13unfit, the court shall determine:
14 (1) whether in-court assistance pursuant to Section
15 5-5A-190 would render the child fit; and
16 (2) whether there is a substantial probability that
17 the child, if provided with services to attain fitness
18 pursuant to Section 5-5A-170, will attain fitness within
19 the period to attain fitness set forth in Section
20 5-5A-175.
21 (d) If the court finds that the child is unfit and there is
22not a substantial probability the child will attain fitness
23within the statutory period as set forth in Section 5-5A-175,
24the court shall proceed under Section 5-5A-210.
25 (e) If the court finds the child is unfit but that there is
26a substantial probability that the child will become fit

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1within the period to attain fitness set forth in Section
25-5A-175, or if the court is unable to determine whether a
3substantial probability exists, the court shall order the
4child to receive services to attain fitness on either an
5inpatient or outpatient basis. If the court is unable to
6determine whether a substantial probability exists and orders
7the child to receive services to attain fitness, the court
8shall conduct a hearing as soon as possible following the
9receipt of the report filed pursuant to Section 5-5A-180 to
10determine whether there is a substantial probability that the
11child will attain fitness within the statutory period.
12 (f) If the court finds that the child is unfit to stand
13trial, it shall proceed pursuant to this Act. If the court
14finds that the child could be rendered fit with in-court
15assistance, the court shall order in-court assistance pursuant
16to Section 5-5A-190.
17 (g) An order finding the child unfit to stand trial is a
18final order for purposes of appeal by the State or the child.
19 (705 ILCS 405/5-5A-170 new)
20 Sec. 5-5A-170. Services to attain fitness.
21 (a) When the court orders services to attain fitness
22pursuant to Section 5-5A-165, the court shall determine if the
23child will receive services on an inpatient or outpatient
24basis. If inpatient, the child shall be placed at a facility
25approved by the Illinois Department of Human Services to

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1provide residential, restoration care and treatment. If the
2court orders the child to receive services on an outpatient
3basis, such services shall be rendered in the community at a
4program approved by the Illinois Department of Human Services.
5Court-ordered services and placements shall be consistent with
6the recommendations in the evaluation report. All services
7shall be trauma-informed, developmentally appropriate, and
8provided in the least restrictive environment considering the
9needs and best interests of the child. A placement may be
10ordered on an inpatient basis only when the child exhibits
11needs warranting a hospital-level of care.
12 (b) Within 5 days of a court order for services to attain
13fitness entered pursuant to Section 5-5A-165, the clerk of the
14circuit court shall transmit to the Illinois Department of
15Human Services, and any other agency or institution providing
16services to attain fitness to the child, the following:
17 (1) a certified copy of the order to receive services
18 and the complete copy of any report on the child's fitness
19 prepared pursuant to this Part;
20 (2) the county and municipality in which the alleged
21 offense occurred;
22 (3) the county and municipality in which the arrest
23 took place;
24 (4) a copy of the arrest report, charges, and arrest
25 record; and
26 (5) all additional matters that the court directs the

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1 clerk to transmit.
2 (705 ILCS 405/5-5A-175 new)
3 Sec. 5-5A-175. Period to attain fitness. For a child
4charged with a felony, the maximum total time a court may order
5a child to receive services to attain fitness shall be one
6year. For a child charged with a misdemeanor, the maximum
7total period shall be no more than one year. The period to
8attain fitness shall begin with the court's first finding of
9unfitness during a fitness hearing pursuant to Section
105-5A-165.
11 (705 ILCS 405/5-5A-180 new)
12 Sec. 5-5A-180. Initial and subsequent progress reports.
13 (a) Within 30 days of entry of an order to receive services
14to attain fitness pursuant to Sections 5-5A-170 and 5-5A-175,
15the person in charge of supervising the child's services shall
16file with the court an initial report assessing the program's
17capacity to provide appropriate services for the child and
18indicating the person's opinion as to the probability of the
19child attaining fitness within the period to attain fitness
20provided in Section 5-5A-175. If the initial report indicates
21that there is a substantial probability that the child will
22attain fitness within the allowed statutory period, the
23supervisor shall also file a services plan which shall
24include:

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1 (1) a description of the goals of services with
2 respect to rendering the child fit, a specification of the
3 proposed modalities of services, and an estimated
4 timetable for attainment of the goals; and
5 (2) an identification of the person in charge of
6 supervising the child's services.
7 (b) The supervisor shall submit a subsequent written
8progress report to the court at least 7 days prior to the date
9of any hearing on the issue of the child's fitness.
10 (c) If the supervisor determines that any of the following
11circumstances are met, the supervisor shall notify the court
12in writing as soon as possible but no later than 7 days after
13the determination is made:
14 (1) if the supervisor believes that the child has
15 attained fitness;
16 (2) if the supervisor believes that there is not a
17 substantial probability that the child will attain
18 fitness, with services, within the period to attain
19 fitness under Section 5-5A-175; or
20 (3) if the supervisor believes a change in services or
21 placement is necessary.
22 (d) The initial and subsequent progress reports shall
23contain:
24 (1) the clinical findings of the supervisor and the
25 facts upon which the findings are based;
26 (2) the opinion of the supervisor as to whether the

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1 child has attained fitness and as to whether the child is
2 making progress, with services, toward attaining fitness
3 within the period set in Section 5-5A-175;
4 (3) whether the current services to attain fitness and
5 placement continue to be in the least restrictive
6 environment necessary, whether a different level of care
7 is needed, and the basis for that recommendation; and
8 (4) any other changes in recommendations of services
9 to attain fitness.
10 (e) If the supervisor of the child's services determines,
11pursuant to paragraph (3) of subsection (d) of this Section,
12that the child is not in the least restrictive environment
13necessary to attain fitness, upon receipt of the progress
14report, the court shall ensure that the child is immediately
15moved to the least restrictive environment necessary.
16 (705 ILCS 405/5-5A-185 new)
17 Sec. 5-5A-185. Periodic hearings. Upon entry or
18continuation of any order to receive services to attain
19fitness, the court shall set a date for hearing to reexamine
20the issue of the child's fitness not more than 90 days
21thereafter. In addition, whenever the court receives a report
22from the supervisor of the child's services pursuant to
23paragraph (c) of Section 5-5A-180, the court shall set the
24matter for a hearing within 14 days unless good cause is
25demonstrated why the hearing cannot be held. On the date set,

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1the court shall conduct a hearing to redetermine the child's
2fitness pursuant to Section 5-5A-165.
3 (705 ILCS 405/5-5A-190 new)
4 Sec. 5-5A-190. In-court assistance to render a child fit.
5 (a) If the court determines that the child could be
6rendered fit with in-court assistance under Section 5-5A-165,
7the court shall order in-court assistance under subsection
8(b). A child found unfit because of chronological immaturity
9cannot be rendered fit with in-court assistance. A child found
10unfit because of relative immaturity or child traumatic stress
11cannot be rendered fit solely with in-court assistance.
12 (b) In-court assistance may include, but is not limited
13to:
14 (1) appointment of a qualified translator who shall
15 simultaneously translate all court proceedings into a
16 language understood by the child; and
17 (2) appointment of an expert qualified to assist a
18 child who, because of a disability, is unable to
19 communicate with the child's attorney.
20 (c) If in-court assistance is provided, the case may
21proceed to trial only if the court determines that in-court
22assistance renders the child fit. In such cases, the court
23shall state for the record the following:
24 (1) the qualifications and experience of the experts
25 or other persons appointed to provide in-court assistance

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1 to the child;
2 (2) the court's reasons for selecting or appointing
3 the particular experts or other persons to provide the
4 in-court assistance to the child;
5 (3) how the appointment of the particular expert or
6 other persons will serve the goal of rendering the child
7 fit, based on the appointee's qualifications and
8 experience, and the lack of functional, social, adaptive,
9 or intellectual abilities of the child; and
10 (4) any other factors considered by the court in
11 appointing the experts or other persons.
12 (d) A child adjudicated delinquent following a trial
13conducted with in-court assistance provided under this Section
14shall not be sentenced before a written report of social
15investigation is presented to and considered by the court. The
16written report of social investigation shall be prepared
17pursuant to Section 5-701 and shall include a physical and
18mental examination unless the court finds that the reports of
19prior physical and mental examinations conducted pursuant to
20this Part are adequate and recent enough to render additional
21examinations unnecessary.
22 (705 ILCS 405/5-5A-195 new)
23 Sec. 5-5A-195. Time Credit. A sentence imposed on the
24child in the pending case or in any other case arising out of
25the same conduct shall be reduced by time spent:

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1 (1) in custody pursuant to orders issued under Section
2 5-5A-170 or pursuant to a commitment to the Department of
3 Human Services following a finding of unfitness under this
4 Part;
5 (2) in any court-ordered out-of-home placement;
6 including, but not limited to, a detention facility,
7 rehabilitation center, or inpatient hospital; or
8 (3) home detention or electronic monitoring pursuant
9 to Section 5-7A-110.
10 (705 ILCS 405/5-5A-200 new)
11 Sec. 5-5A-200. Court organization of records. Any report
12filed with the court concerning diagnosis, evaluation
13progress, or services made pursuant to this Part shall not be
14placed in the child's court record but shall be maintained
15separately by the clerk of the court and shall be available
16only to the court or an appellate court, the State, the child,
17the child's attorney, the child's parent or guardian, or a
18facility or program that provides services to the child
19pursuant to an order of the court. These records of the child
20shall be privileged and shall not be disclosed except under
21the conditions set forth in Section 5-910. Nothing in this
22Section shall operate to extinguish any rights of a child
23established by law, including, but not limited to:
24attorney-client, physician-patient, psychologist-client, or
25social worker-client privileges, except as otherwise provided

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1by law.
2 (705 ILCS 405/5-5A-205 new)
3 Sec. 5-5A-205. Sentencing guidelines for a child who
4attains fitness. The court shall not impose a commitment to
5the Department of Juvenile Justice upon the child if the court
6believes that because of the child's condition, such a
7sentence would not be in the interests of society and the
8child, or would subject the child to excessive hardship. In
9addition to any other conditions of a sentence of conditional
10discharge or probation, the court may require that the child
11receive additional services for the child's condition.
12 (705 ILCS 405/5-5A-210 new)
13 Sec. 5-5A-210. Legal disposition if fitness cannot be
14attained. The court shall dismiss the charges against the
15child with prejudice if the court finds the child is unfit
16under Section 5-5A-165 and that the child:
17 (1) cannot attain fitness within the period to attain
18 fitness defined in Section 5-5A-175 or that there is not a
19 substantial probability that the child will attain fitness
20 within the period to attain fitness defined under Section
21 5-5A-175; and
22 (2) cannot attain fitness with in-court assistance
23 pursuant to Section 5-5A-190.

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1 (705 ILCS 405/5-5A-215 new)
2 Sec. 5-5A-215. Follow-up study and recommendations. The
3Illinois Juvenile Justice Commission shall develop and
4recommend mechanisms to collect and analyze data,
5disaggregated by race, ethnicity, gender, geography, age, and
6socioeconomic status, resulting from the implementation of
7this Part. The report and recommendations shall be submitted
8to the General Assembly on or before January 1, 2024.
9 Section 97. Severability. The provisions of this Act are
10severable under Section 1.31 of the Statute on Statutes.
11 Section 99. Effective date. This Act takes effect July 1,
122023.

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1 INDEX
2 Statutes amended in order of appearance
3 705 ILCS 405/Art. Pt. 5A
4 heading new
5 705 ILCS 405/5-5A-101 new
6 705 ILCS 405/5-5A-105 new
7 705 ILCS 405/5-5A-110 new
8 705 ILCS 405/5-5A-115 new
9 705 ILCS 405/5-5A-120 new
10 705 ILCS 405/5-5A-125 new
11 705 ILCS 405/5-5A-130 new
12 705 ILCS 405/5-5A-135 new
13 705 ILCS 405/5-5A-140 new
14 705 ILCS 405/5-5A-145 new
15 705 ILCS 405/5-5A-150 new
16 705 ILCS 405/5-5A-155 new
17 705 ILCS 405/5-5A-160 new
18 705 ILCS 405/5-5A-165 new
19 705 ILCS 405/5-5A-170 new
20 705 ILCS 405/5-5A-175 new
21 705 ILCS 405/5-5A-180 new
22 705 ILCS 405/5-5A-185 new
23 705 ILCS 405/5-5A-190 new
24 705 ILCS 405/5-5A-195 new
25 705 ILCS 405/5-5A-200 new

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