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Public Act 098-1025
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SB2801 Enrolled | LRB098 17630 MRW 52743 b |
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AN ACT concerning criminal law.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Code of Criminal Procedure of 1963 is |
amended by changing Sections 104-15, 104-17, 104-18, 104-20, |
104-21, 104-23, and 104-31 as follows:
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(725 ILCS 5/104-15) (from Ch. 38, par. 104-15)
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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:
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(1) A diagnosis and an explanation as to how it was reached |
and the facts
upon which it is based;
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(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.
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(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 one year if
provided with a course of |
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treatment. If the person or persons preparing
the report are |
unable to form such an opinion, the report shall state the
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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.
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(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.
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(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. 81-1217.)
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(725 ILCS 5/104-17) (from Ch. 38, par. 104-17)
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Sec. 104-17. Commitment for Treatment; Treatment Plan.
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(a) If the defendant
is eligible to be or has been released |
on bail or on his own recognizance,
the court shall select the |
least physically restrictive form of treatment
therapeutically |
appropriate and consistent with the treatment plan.
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(b) If the defendant's disability is mental, the court may |
order him placed
for treatment in the custody of the Department |
of Human Services, or the court may order him placed in
the |
custody of any other
appropriate public or private mental |
health facility or treatment program
which has agreed to |
provide treatment to the defendant. If the defendant
is placed |
in the custody of the Department of Human Services, the |
defendant shall be placed in a
secure setting unless the
court |
determines that
there are compelling reasons why such placement |
is not necessary . During
the period of time required to |
determine the appropriate placement the
defendant shall remain |
in jail. If upon the completion of the placement process the |
Department of Human Services determines that the defendant is |
currently fit to stand trial, it shall immediately notify the |
court and shall submit a written report within 7 days. In that |
circumstance the placement shall be held pending a court |
hearing on the Department's report. Otherwise, upon completion |
of the placement process, the
sheriff shall be notified and |
shall transport the defendant to the designated
facility. The |
placement may be ordered either on an inpatient or an |
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outpatient
basis.
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(c) If the defendant's disability is physical, the court |
may order him
placed under the supervision of the Department of |
Human
Services
which shall place and maintain the defendant in |
a suitable treatment facility
or program, or the court may |
order him placed in an appropriate public or
private facility |
or treatment program which has agreed to provide treatment
to |
the defendant. The placement may be ordered either on an |
inpatient or
an outpatient basis.
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(d) The clerk of the circuit court shall transmit to the |
Department, agency
or institution, if any, to which the |
defendant is remanded for treatment, the
following:
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(1) a certified copy of the order to undergo treatment;
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(2) the county and municipality in which the offense |
was committed;
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(3) the county and municipality in which the arrest |
took place; |
(4) a copy of the arrest report, criminal charges, |
arrest record, jail record, and the report prepared under |
Section 104-15; and
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(5) all additional matters which the Court directs the |
clerk to transmit.
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(e) Within 30 days of entry of an order to undergo |
treatment, the person
supervising the defendant's treatment |
shall file with the court, the State,
and the defense a report |
assessing the facility's or program's capacity
to provide |
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appropriate treatment for the defendant and indicating his |
opinion
as to the probability of the defendant's attaining |
fitness within a period
of time one year from the date of the |
finding of unfitness. 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 sentence if convicted of the most serious offense. If the |
report indicates
that there is a substantial probability that |
the defendant will attain fitness
within the time period, the |
treatment supervisor shall also file a treatment
plan which |
shall include:
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(1) A diagnosis of the defendant's disability;
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(2) A description of treatment goals with respect to |
rendering the
defendant
fit, a specification of the |
proposed treatment modalities, and an estimated
timetable |
for attainment of the goals;
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(3) An identification of the person in charge of |
supervising the
defendant's
treatment.
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(Source: P.A. 95-296, eff. 8-20-07; 96-310, eff. 8-11-09.)
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(725 ILCS 5/104-18) (from Ch. 38, par. 104-18)
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Sec. 104-18. Progress Reports.) |
(a) The treatment supervisor shall submit
a written |
progress report to the court, the State, and the defense:
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(1) At least 7 days prior to the date for any hearing |
on the issue of
the defendant's fitness;
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(2) Whenever he believes that the defendant has |
attained fitness;
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(3) Whenever he believes that there is not a |
substantial probability that
the defendant will attain |
fitness, with treatment, within the time period set in |
subsection (e) of Section 104-17 of this Code one year from
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the date of the original finding of unfitness.
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(b) The progress report shall contain:
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(1) The clinical findings of the treatment supervisor |
and the facts upon
which the findings are based;
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(2) The opinion of the treatment supervisor as to |
whether the defendant
has attained fitness or as to whether |
the defendant is making progress,
under treatment, toward |
attaining fitness within the time period set in subsection |
(e) of Section 104-17 of this Code one year from the date
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of the original finding of unfitness;
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(3) If the defendant is receiving medication, |
information from the prescribing
physician indicating the |
type, the dosage and the effect of the medication
on the |
defendant's appearance, actions and demeanor.
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(c) Whenever the court is sent a report from the supervisor |
of the defendant's treatment under paragraph (2) of subsection |
(a) of this Section, the treatment provider shall arrange with |
the court for the return of the defendant to the county jail |
before the time frame specified in subsection (a) of Section |
104-20. This subsection (c) is inoperative on and after January |
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1, 2014. |
(Source: P.A. 97-1020, eff. 8-17-12.)
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(725 ILCS 5/104-20) (from Ch. 38, par. 104-20)
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Sec. 104-20. Ninety-Day Hearings; Continuing Treatment.) |
(a) Upon entry
or continuation of any order to undergo |
treatment, the court shall set a
date for hearing to reexamine |
the issue of the defendant's fitness not more
than 90 days |
thereafter. In addition, whenever the court receives a report
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from the supervisor of the defendant's treatment pursuant to |
subparagraph
(2) or (3) of paragraph (a) of Section 104-18, the |
court shall forthwith
set the matter for a first hearing within |
14 days unless good cause is demonstrated why the hearing |
cannot be held. On the date set or upon conclusion of the |
matter
then pending before it, the court, sitting without a |
jury, shall conduct
a hearing, unless waived by the defense, |
and shall determine:
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(1) Whether the defendant is fit to stand trial or to |
plead; and if not,
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(2) Whether the defendant is making progress under |
treatment toward attainment
of fitness within the time |
period set in subsection (e) of Section 104-17 of this Code |
one year from the date of the original finding
of |
unfitness.
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(b) If the court finds the defendant to be fit pursuant to |
this Section,
the court shall set the matter for trial; |
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provided that if the defendant
is in need of continued care or |
treatment and the supervisor of the defendant's
treatment |
agrees to continue to provide it, the court may enter any order
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it deems appropriate for the continued care or treatment of the |
defendant
by the facility or program pending the conclusion of |
the criminal proceedings.
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(c) If the court finds that the defendant is still unfit |
but that he is
making progress toward attaining fitness, the |
court may continue or modify
its original treatment order |
entered pursuant to Section 104-17.
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(d) If the court finds that the defendant is still unfit |
and that he is
not making progress toward attaining fitness |
such that there is not a
substantial probability that he will |
attain fitness within the time period set in subsection (e) of |
Section 104-17 of this Code one year from
the date of the |
original finding of unfitness, the court shall proceed pursuant
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to Section 104-23. However, if the defendant is in need of |
continued care
and treatment and the supervisor of the |
defendant's treatment agrees to
continue to provide it, the |
court may enter any order it deems appropriate
for the |
continued care or treatment by the facility or program pending |
the
conclusion of the criminal proceedings.
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(Source: P.A. 97-37, eff. 6-28-11.)
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(725 ILCS 5/104-21) (from Ch. 38, par. 104-21)
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Sec. 104-21. Medication.
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(a) A defendant who is receiving psychotropic drugs
shall |
not be presumed to be unfit to stand trial
solely by virtue of |
the receipt of those drugs or medications.
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(b) Whenever a defendant who is receiving medication under |
medical direction
is transferred between a place of custody and |
a treatment facility or program,
a written report from the |
prescribing physician shall accompany the defendant.
The |
report shall state the type and dosage of the defendant's |
medication
and the duration of the prescription. The chief |
officer of the place of
custody or the treatment supervisor at |
the facility or program shall insure
that such medication is |
provided according to the directions of the prescribing
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physician or until superseded by order of a physician who has |
examined the
defendant.
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(c) If a defendant refuses psychotropic medication, it may |
be administered over the defendant's objections in accord with |
the Mental Health and Developmental Disabilities Code. If court |
authorized medications are sought, the petition, prepared in |
accord with Section 2-107.1 of the Mental Health and |
Developmental Disabilities Code may be filed in the county |
where the defendant is located or with the court having |
jurisdiction over the defendant. |
(Source: P.A. 89-428, eff. 12-13-95; 89-689, eff. 12-31-96.)
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(725 ILCS 5/104-23) (from Ch. 38, par. 104-23)
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Sec. 104-23. Unfit defendants. Cases involving an unfit |
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defendant who
demands a discharge hearing or a defendant who |
cannot become fit to stand
trial and for whom no special |
provisions or assistance can compensate for
his disability and |
render him fit shall proceed in the following manner:
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(a) Upon a determination that there is not a substantial |
probability
that the defendant will attain fitness within the |
time period set in subsection (e) of Section 104-17 of this |
Code one year from the original
finding of unfitness, a |
defendant or the attorney for the defendant
may move for a |
discharge hearing pursuant to the provisions of Section 104-25.
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The discharge hearing shall be held within 120 days of the |
filing of a
motion for a discharge hearing, unless the delay is |
occasioned by the defendant.
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(b) If at any time the court determines that there is not a |
substantial
probability that the defendant will become fit to |
stand trial or to plead
within the time period set in |
subsection (e) of Section 104-17 of this Code one year from the |
date of the original finding of unfitness,
or if at the end of |
the time period set in subsection (e) of Section 104-17 of this |
Code one year from that date the court finds the defendant
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still unfit and for whom no special provisions or assistance |
can compensate
for his disabilities and render him fit, the |
State shall request the court:
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(1) To set the matter for hearing pursuant to Section |
104-25 unless
a hearing has already been held pursuant to |
paragraph (a) of this Section; or
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(2) To release the defendant from custody and to |
dismiss with prejudice
the charges against him; or
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(3) To remand the defendant to the custody of the |
Department of
Human Services and order a
hearing to be |
conducted
pursuant to the provisions of the Mental Health |
and Developmental Disabilities
Code, as now or hereafter |
amended. The Department of Human Services shall have 7 days |
from the
date it receives the
defendant to prepare and file |
the necessary petition and certificates that are
required |
for commitment under the Mental Health and Developmental |
Disabilities
Code. If the defendant is committed to the
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Department of Human Services pursuant to such
hearing, the |
court
having jurisdiction over the criminal matter shall |
dismiss the charges against
the defendant, with the leave |
to reinstate. In such cases the Department of Human |
Services shall notify the court,
the State's attorney and |
the defense attorney upon the discharge of the
defendant. A |
former defendant so committed
shall be treated in the same |
manner as any other civilly committed patient
for all |
purposes including admission, selection of the place of |
treatment
and the treatment modalities, entitlement to |
rights and privileges, transfer,
and discharge. A |
defendant who is not committed shall be remanded to the
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court having jurisdiction of the criminal matter for |
disposition pursuant
to subparagraph (1) or (2) of |
paragraph (b) of this Section.
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(c) If the defendant is restored to fitness and the |
original charges
against him are reinstated, the speedy trial |
provisions of Section 103-5
shall commence to run.
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(Source: P.A. 89-439, eff. 6-1-96; 89-507, eff. 7-1-97.)
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(725 ILCS 5/104-31) (from Ch. 38, par. 104-31)
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Sec. 104-31. No defendant placed in a setting of the |
Department of
Human Services pursuant to
the provisions of |
Sections 104-17, 104-25, or 104-26 shall be permitted outside
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the facility's
housing unit unless escorted or accompanied by |
personnel of the Department of
Human Services or authorized by |
court order.
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, may be
placed in security devices
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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.
Nor |
shall
any defendant
be permitted any off-grounds privileges, |
either with or without escort by
personnel of the Department of |
Human Services or ,
any unsupervised on-ground privileges, or |
placement in a non-secure setting unless such off-grounds or
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unsupervised on-grounds privileges , or placement in a |
non-secure setting have been approved by specific court
order, |
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which order may include such conditions on the defendant as the
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court may deem appropriate and necessary to reasonably assure |
the
defendant's satisfactory progress in treatment and the |
safety of the defendant
or others. Whenever the court receives |
a report from the supervisor of the defendant's treatment |
recommending the defendant for any off-grounds or unsupervised |
on-grounds privileges, or placement in a non-secure setting, |
the court shall set the matter for a first hearing within 21 |
days unless good cause is demonstrated why the hearing cannot |
be held.
The changes made to this Section by
this amendatory |
Act of the 96th General Assembly are declarative of existing
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law and shall not be construed as a new enactment.
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(Source: P.A. 95-296, eff. 8-20-07; 96-1069, eff. 7-16-10.)
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Section 10. The Unified Code of Corrections is amended by |
changing Section 5-2-4 as follows:
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(730 ILCS 5/5-2-4) (from Ch. 38, par. 1005-2-4)
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Sec. 5-2-4. Proceedings after Acquittal by Reason of |
Insanity.
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(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
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whether he is in need of mental health
services. The order
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shall specify whether the evaluation shall be conducted on an |
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inpatient or
outpatient basis. If the evaluation is to be |
conducted on an inpatient
basis, the defendant shall be placed |
in a secure setting unless the Court
determines that there are |
compelling reasons why such placement is not
necessary . 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.
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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 |
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Court shall enter its findings.
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If the defendant is found to be in
need
of mental health |
services on an inpatient care basis, the Court shall order the
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defendant to the Department of Human Services.
The defendant |
shall be placed in a secure setting unless the Court determines
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that there are compelling reasons why such placement is not |
necessary . 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
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unsupervised
on-grounds privileges as provided
herein.
Any |
defendant placed in a secure setting pursuant to this Section,
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transported to court hearings or other necessary appointments
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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
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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 |
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person not in need of mental health services, then the Court
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shall order the defendant discharged from custody.
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(a-1) Definitions. For the purposes of this Section:
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(A) (Blank).
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(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
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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.
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(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.
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(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 |
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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
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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
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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
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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
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revoked or modified pursuant to subsection (i) of this |
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Section. Such
conditional release shall be for
a period of |
five years. However, the defendant, the person or
facility
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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
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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
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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
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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
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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.
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(E) "Facility director" means the chief officer of a |
mental health or
developmental disabilities facility or |
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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.
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(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,
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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
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privileges, with or without escort by personnel of the |
Department of Human
Services, unsupervised on-grounds |
privileges,
discharge or conditional or temporary release, |
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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 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
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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
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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 defendant no longer requires |
placement in a secure setting;
|
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). no longer requires placement in a secure |
setting.
|
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 , transfer to a
non-secure setting within the Department |
of Human Services
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 , |
transfer to a non-secure
setting 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, after the entry of an |
order of transfer
to a non-secure setting of the Department of |
Human Services or discharge or
conditional release, transmit
a |
certified
copy of the order to the Department of Human |
Services, and the sheriff of the
county from which the
|
defendant was
admitted.
The Clerk of the Court shall also |
|
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. 95-296, eff. 8-20-07; 95-331, eff. 8-21-07; |
96-1138, eff. 7-21-10.)
|
Section 99. Effective date. This Act takes effect upon |
becoming law, except that the changes to Section 104-15 of the |
Code of Criminal Procedure of 1963 take effect on January 1, |
2015.
|