HB5308 104TH GENERAL ASSEMBLY

LRB104 18058 RLC 31497 b

104TH GENERAL ASSEMBLY
State of Illinois
2025 and 2026
HB5308

Introduced 2/10/2026, by Rep. Maura Hirschauer

SYNOPSIS AS INTRODUCED:

725 ILCS 5/104-15	from Ch. 38, par. 104-15
725 ILCS 5/104-17	from Ch. 38, par. 104-17

Amends the Code of Criminal Procedure of 1963. Provides that if the court orders an unfit defendant to be placed in the custody of the Department of Human Services, during the period of time required to determine bed and placement availability at the designated facility, the defendant may (rather than shall) remain in jail. Makes technical changes in a provision concerning credit for good behavior.

A BILL FOR

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 Sections 104-15 and 104-17 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 the statutory period of time from the date of the finding of unfitness 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. The 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 and Section 3 of the County Jail Good Behavior Allowance Act. Defendants charged with petty offenses or infraction of a municipal ordinance are not eligible for fitness restoration services. If the person or persons preparing the initial fitness report are unable to form such an opinion, the report shall state the reasons therefor. The report shall include a general description of the type of treatment needed and of the least physically restrictive form of treatment therapeutically appropriate. If inpatient treatment is recommended, the report must articulate the evaluator's assessment of risk, protective factors, and treatment needs as related to the defendant's mental disorder. Risk shall not be determined solely by the nature of the defendant's criminal charges.

(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. 104-318, eff. 1-1-26.)

(725 ILCS 5/104-17) (from Ch. 38, par. 104-17)

Sec. 104-17. Commitment for treatment; treatment plan.

(a) If the defendant is eligible to be or has been released on pretrial release, the court shall select the least physically restrictive form of treatment therapeutically appropriate and consistent with the treatment plan. The placement may be ordered either on an inpatient or an outpatient basis. Placement shall be on an outpatient basis unless the court determines that:

(1) treatment on an outpatient basis is reasonably expected to inflict serious physical harm upon the defendant or another. No defendant may be ordered to inpatient restoration unless at least one licensed physician, clinical psychologist, or psychiatrist who has examined the defendant testifies in person at the hearing. The defendant may waive the requirement of the testimony subject to the approval of the court; or

(2) treatment that will restore the defendant to fitness within a reasonable period of time is not available on an outpatient basis.

(b) If the defendant's disability is mental, the court may order him placed for secure 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 most serious charge faced by the defendant is a misdemeanor, the court shall order outpatient treatment, unless the court finds on the record that the defendant is reasonably expected to inflict serious physical harm on the defendant or another due to mental illness. No defendant may be ordered to inpatient restoration unless at least one licensed physician, clinical psychologist, or psychiatrist who has examined the defendant testifies in person at the hearing. The defendant may waive the requirement of the testimony subject to the approval of the court. If the court orders the defendant to inpatient treatment in the custody of the Department of Human Services, the Department shall evaluate the defendant to determine the most appropriate secure facility to receive the defendant and, within 20 days of the transmittal by the clerk of the circuit court of the court's placement order, notify the court of the designated facility to receive the defendant. The Department shall admit the defendant to a secure facility within 60 days of the transmittal of the court's placement order, unless the Department can demonstrate good faith efforts at placement and a lack of bed and placement availability. If placement cannot be made within 60 days of the transmittal of the court's placement order and the Department has demonstrated good faith efforts at placement and a lack of bed and placement availability, the Department shall provide an update to the ordering court every 30 days until the defendant is placed. Once bed and placement availability is determined, the Department shall notify the sheriff who shall promptly transport the defendant to the designated facility. If the defendant is placed in the custody of the Department of Human Services, the defendant shall be placed in a secure setting. During the period of time required to determine bed and placement availability at the designated facility, the defendant may shall remain in jail. If during the course of evaluating the defendant for placement, 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, including identifying bed and placement availability, the sheriff shall be notified and shall transport the defendant to the designated facility. If, within 60 days of the transmittal by the clerk of the circuit court of the court's placement order, the Department fails to provide the sheriff with notice of bed and placement availability at the designated facility, the sheriff shall contact the Department to inquire about when a placement will become available at the designated facility as well as bed and placement availability at other secure facilities. The Department shall respond to the sheriff within 2 business days of the notice and inquiry by the sheriff seeking the transfer and the Department shall provide the sheriff with the status of the evaluation, information on bed and placement availability, and an estimated date of admission for the defendant and any changes to that estimated date of admission. If the Department notifies the sheriff during the 2 business day period of a facility operated by the Department with placement availability, the sheriff shall promptly transport the defendant to that facility. The placement may be ordered either on an inpatient or an outpatient basis.

(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.

(d) The clerk of the circuit court shall within 5 days of the entry of the order transmit to the Department, agency or institution, if any, to which the defendant is remanded for treatment, the following:

(1) a certified copy of the order to undergo treatment. Accompanying the certified copy of the order to undergo treatment shall be the complete copy of any report prepared under Section 104-15 of this Code or other report prepared by a forensic examiner for the court;

(2) the county and municipality in which the offense was committed;

(3) the county and municipality in which the arrest took place;

(4) a copy of the arrest report, criminal charges, arrest record; and

(5) all additional matters which the Court directs the clerk to transmit.

(e) Within 30 days of admission to the designated facility, 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 appropriate treatment for the defendant and indicating his opinion as to the probability of the defendant's attaining fitness within a period of time 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, less credit for good behavior as provided in Section 5-4-1 of the Unified Code of Corrections. 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:

(1) A diagnosis of the defendant's disability;

(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;

(3) An identification of the person in charge of supervising the defendant's treatment.

(Source: P.A. 104-318, eff. 1-1-26.)