HB3903 96TH GENERAL ASSEMBLY

LRB096 04205 RLC 14250 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB3903

Introduced 2/26/2009, by Rep. Linda Chapa LaVia

SYNOPSIS AS INTRODUCED:

725 ILCS 5/104-17	from Ch. 38, par. 104-17
725 ILCS 5/104-18	from Ch. 38, par. 104-18
725 ILCS 5/104-20	from Ch. 38, par. 104-20
725 ILCS 5/104-23	from Ch. 38, par. 104-23

Amends the Code of Criminal Procedure of 1963. Provides that the treatment period for a defendant found unfit to stand trial to attain fitness shall be one year from the date of the finding of unfitness for a defendant charged with a felony and 6 months from that date for a defendant charged with a misdemeanor. Effective immediately.

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 104-17, 104-18, 104-20, and 104-23 as follows:

(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 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.

(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. 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 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 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;

(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, jail record, and the report prepared under Section 104-15; and

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

(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 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 time period shall be 6 months. 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. 95-296, eff. 8-20-07.)

(725 ILCS 5/104-18) (from Ch. 38, par. 104-18)

Sec. 104-18. Progress Reports.) (a) The treatment supervisor shall submit a written progress report to the court, the State, and the defense:

(1) At least 7 days prior to the date for any hearing on the issue of the defendant's fitness;

(2) Whenever he believes that the defendant has attained fitness;

(3) Whenever he believes that there is not a substantial probability that the defendant will attain fitness, with treatment, within the time period set forth in subsection (e) of Section 104-17 one year from the date of the original finding of unfitness.

(b) The progress report shall contain:

(1) The clinical findings of the treatment supervisor and the facts upon which the findings are based;

(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 forth in subsection (e) of Section 104-17 one year from the date of the original finding of unfitness;

(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.

(Source: P.A. 81-1217.)

(725 ILCS 5/104-20) (from Ch. 38, par. 104-20)

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 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 21 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:

(1) Whether the defendant is fit to stand trial or to plead; and if not,

(2) Whether the defendant is making progress under treatment toward attainment of fitness within the time period set forth in subsection (e) of Section 104-17 one year from the date of the original finding of unfitness.

(b) If the court finds the defendant to be fit pursuant to this Section, the court shall set the matter for trial; 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 it deems appropriate for the continued care or treatment of the defendant by the facility or program pending the conclusion of the criminal proceedings.

(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.

(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 forth in subsection (e) of Section 104-17 one year from the date of the original finding of unfitness, the court shall proceed pursuant 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.

(Source: P.A. 94-191, eff. 7-12-05.)

(725 ILCS 5/104-23) (from Ch. 38, par. 104-23)

Sec. 104-23. Unfit defendants. Cases involving an unfit 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:

(a) Upon a determination that there is not a substantial probability that the defendant will attain fitness within the time period set forth in subsection (e) of Section 104-17 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. 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.

(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 forth in subsection (e) of Section 104-17 one year from the date of the original finding of unfitness, or if at the end of the time period set forth in subsection (e) of Section 104-17 one year from that date the court finds the defendant 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:

(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

(2) To release the defendant from custody and to dismiss with prejudice the charges against him; or

(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 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 court having jurisdiction of the criminal matter for disposition pursuant to subparagraph (1) or (2) of paragraph (b) of this Section.

(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.

(Source: P.A. 89-439, eff. 6-1-96; 89-507, eff. 7-1-97.)

Section 99. Effective date. This Act takes effect upon becoming law.