HB4807 Engrossed

LRB096 16403 RLC 31669 b





  
1
    AN ACT concerning criminal law.
  
 
2
    Be it enacted by the People of the State of Illinois,
 
3
represented in the General Assembly:
  
 
 
4
    Section 5. The Unified Code of Corrections is amended  by 
5
changing Section 5-2-4 as follows:
 



6
    (730 ILCS 5/5-2-4)  (from Ch. 38, par. 1005-2-4)



7
    Sec. 5-2-4. Proceedings after Acquittal by Reason of 
8
Insanity. 

9
    (a) After a finding or verdict of not guilty by reason of 
10
insanity
under Sections 104-25, 115-3 or 115-4 of the Code of 
11
Criminal Procedure
of 1963, the defendant shall be ordered to 
12
the Department of Human Services for
an evaluation as to

13
whether he is in need of mental health
services.  The order

14
shall specify whether the evaluation shall be conducted on an 
15
inpatient or
outpatient basis. If the evaluation is to be 
16
conducted on an inpatient
basis, the defendant shall be placed 
17
in a secure setting unless the Court
determines that there are 
18
compelling reasons why such placement is not
necessary. With 
19
the court order for evaluation shall be sent a copy of the 
20
arrest report, criminal charges, arrest record, jail record, 
21
and any report prepared under Section 115-6 of the Code of 
22
Criminal Procedure of 1963, and any victim impact statement 
23
prepared under Section 6 of the Rights of Crime Victims and 
 


 






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1
Witnesses Act.
After the evaluation and during the period of 
2
time required to
determine the appropriate placement, the 
3
defendant shall
remain in jail.
Individualized placement 
4
evaluations by the Department of Human Services determine the 
5
most appropriate setting for forensic treatment based upon a 
6
number of factors including mental health diagnosis, proximity 
7
to surviving victims, security need, age, gender, and proximity 
8
to family. Upon completion of the placement  process the sheriff 
9
shall be notified and
shall transport the defendant to the 
10
designated facility.

11
    The Department shall provide the Court with a report of its 
12
evaluation
within 30 days of the date of this order.  The Court 
13
shall hold a hearing
as provided under the Mental Health and 
14
Developmental Disabilities Code to
determine if the individual 
15
is:
(a)
in need of mental health services on an inpatient 
16
basis; (b) in
need of
mental health services on an outpatient 
17
basis; (c) a person not in
need of
mental health services.  The 
18
Court shall enter its findings.

19
    If the defendant is found to be in
need
of mental health 
20
services on an inpatient care basis, the Court shall order the

21
defendant to the Department of Human Services.
The defendant 
22
shall be placed in a secure setting unless the Court determines

23
that there are compelling reasons why such placement is not 
24
necessary. Such
defendants placed in a secure setting shall not 
25
be permitted outside the
facility's housing unit unless 
26
escorted or accompanied by personnel of the
Department of Human 
 


 






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Services or with the prior approval of the Court for

2
unsupervised
on-grounds privileges as provided
herein.
Any 
3
defendant placed in a secure setting pursuant to this Section,

4
transported to court hearings or other necessary appointments

5
off facility grounds
by personnel of
the Department of Human 
6
Services, shall be
placed in security devices
or otherwise 
7
secured during the period of transportation to assure
secure 
8
transport of the defendant and the safety of Department
of 
9
Human Services personnel and others.  These security measures

10
shall not constitute restraint as defined in the Mental Health 
11
and
Developmental Disabilities Code.
If the defendant is found 
12
to be in need of mental health services,
but not on an 
13
inpatient care basis, the Court shall conditionally release
the 
14
defendant, under such conditions as set forth in this Section 
15
as will
reasonably assure the defendant's satisfactory 
16
progress and participation
in treatment or
rehabilitation and 
17
the safety of the defendant and others.  If the
Court
finds the 
18
person not in need of mental health services, then the Court

19
shall order the defendant discharged from custody.

20
    (a-1) Definitions.  For the purposes of this Section:


21
        (A) (Blank).


22
        (B) "In need of mental health services on an inpatient 
23
    basis" means: a
defendant who has been found not guilty by 
24
    reason of insanity but who due to mental illness is

25
    reasonably expected to inflict
serious physical harm upon 
26
    himself or another and who would benefit from
inpatient 
 


 






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    care or is in need of inpatient care.


2
        (C) "In need of mental health services on an outpatient 
3
    basis" means:
a defendant who has been found not guilty by 
4
    reason of insanity who is not in need of mental health 
5
    services on
an inpatient basis, but is in need of 
6
    outpatient care, drug and/or alcohol
rehabilitation 
7
    programs, community adjustment programs, individual, 
8
    group,
or family therapy, or chemotherapy.


9
        (D) "Conditional Release" means: the release from 
10
    either the custody
of the Department of Human Services
or 
11
    the custody of the Court of a person who has been found not 
12
    guilty by
reason of insanity under such conditions as the 
13
    Court may impose which
reasonably assure the defendant's 
14
    satisfactory progress in
treatment or habilitation and the 
15
    safety of the defendant and others.  The
Court shall 
16
    consider such terms and conditions which may include, but 
17
    need
not be limited to, outpatient care, alcoholic and drug 
18
    rehabilitation programs,
community adjustment programs, 
19
    individual, group, family, and chemotherapy,
random 
20
    testing to ensure the defendant's timely and continuous 
21
    taking of any
medicines prescribed
to control or manage his 
22
    or her conduct or mental state, and
periodic checks with 
23
    the legal authorities and/or the Department of Human

24
    Services.
 The Court may order as a condition of conditional 
25
    release that the
defendant not contact the victim of the 
26
    offense that
resulted in the finding or
verdict of not 
 


 






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    guilty by reason of insanity or any other person.  The Court 
2
    may
order the
Department of
Human Services to provide care 
3
    to any
person conditionally released under this Section.  
4
    The Department may contract
with any public or private 
5
    agency in order to discharge any responsibilities
imposed 
6
    under this Section.  The Department shall monitor the 
7
    provision of
services to persons conditionally released 
8
    under this Section and provide
periodic reports to the 
9
    Court concerning the services and the condition of the

10
    defendant.
Whenever a person is conditionally released 
11
    pursuant to this Section, the
State's Attorney for the 
12
    county in which the hearing is held shall designate in

13
    writing the name, telephone number, and address of a person 
14
    employed by him or
her who
shall be notified in the event 
15
    that either the reporting agency or the
Department decides 
16
    that the conditional release of the defendant should be

17
    revoked or modified pursuant to subsection (i) of this 
18
    Section. Such
conditional release shall be for
a period of 
19
    five years. However, the defendant, the person or
facility

20
    rendering the treatment, therapy, program or outpatient 
21
    care, the
Department, or the
State's Attorney may petition 
22
    the Court for an extension of
the conditional
release 
23
    period for an additional 5 years. Upon receipt of such a

24
    petition, the Court shall hold a hearing consistent with 
25
    the provisions of
 paragraph (a), this paragraph (a-1),
and 
26
    paragraph (f) of this Section, shall determine
whether the 
 


 






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    defendant should continue to be subject to the terms of

2
    conditional release, and shall enter an order either 
3
    extending the
defendant's period of conditional release 
4
    for an additional
5
year period or discharging the 
5
    defendant.
 Additional 5-year periods of conditional 
6
    release may be ordered following a
hearing as provided in 
7
    this Section.  However,
in no event shall the defendant's

8
    period of conditional release continue beyond the maximum 
9
    period of
commitment ordered by the Court pursuant to 
10
    paragraph (b) of this Section. These provisions for

11
    extension of conditional release shall only apply to 
12
    defendants
conditionally released on or after August 8, 
13
    2003. However the extension
provisions of Public Act 
14
    83-1449 apply only to defendants charged
with a forcible 
15
    felony.


16
        (E) "Facility director" means the chief officer of a 
17
    mental health or
developmental disabilities facility or 
18
    his or her designee or the supervisor of
a program of 
19
    treatment or habilitation or his or her designee.  
20
    "Designee" may
include a physician, clinical psychologist, 
21
    social worker, nurse, or clinical
professional counselor.

22
    (b) If the Court finds the defendant in need of mental 
23
health services on an
inpatient basis, the
admission, 
24
detention, care, treatment or habilitation, treatment plans,

25
review proceedings, including review of treatment and 
26
treatment plans, and
discharge of the defendant after such 
 


 






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1
order shall be under the
Mental Health and Developmental 
2
Disabilities Code, except that the
initial order for admission 
3
of a defendant acquitted of a felony by
reason of insanity 
4
shall be for an indefinite period of time. Such period
of 
5
commitment shall not exceed the maximum
length of time that the 
6
defendant would have been required to serve,
less credit for 
7
good behavior as provided in Section 5-4-1 of the Unified
Code 
8
of Corrections, before becoming eligible for
release had
he 
9
been convicted of and received the maximum sentence for the 
10
most
serious crime for which he has been acquitted by reason of 
11
insanity. The
Court shall determine the maximum period of 
12
commitment by an appropriate
order. During  this period of time, 
13
the defendant shall not be permitted
to be in the community in 
14
any manner, including but not limited to off-grounds

15
privileges, with or without escort by personnel of the 
16
Department of Human
Services, unsupervised on-grounds 
17
privileges,
discharge or conditional or temporary release, 
18
except by a plan as provided in
this Section.  In no event shall 
19
a defendant's continued unauthorized
absence be a basis for 
20
discharge.  Not more than 30 days after admission
and every 60 
21
days thereafter so long as the initial order
remains in effect, 
22
the facility director shall file a treatment plan report
in 
23
writing with the court
and forward a copy of the treatment plan 
24
report to the clerk of the
court, the State's Attorney, and the 
25
defendant's attorney, if the defendant is
represented by 
26
counsel,
or to a person authorized by
the defendant under the

 


 






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1
Mental Health and Developmental Disabilities Confidentiality 
2
Act to be sent a
copy of the report.  The report shall include 
3
an opinion
as to whether the
defendant is currently in need of 
4
mental
health services on an inpatient basis or in need of 
5
mental health services
on
an outpatient basis.  The report shall 
6
also summarize the basis for those
findings and provide a 
7
current summary of the following items from the
treatment plan: 
8
(1) an assessment of the defendant's treatment needs, (2) a

9
description of the services recommended for treatment, (3) the 
10
goals of each
type of element of service, (4) an anticipated 
11
timetable for the accomplishment
of the goals, and (5) a 
12
designation of the qualified professional responsible
for the 
13
implementation of the plan.
The report may also include 
14
unsupervised on-grounds
privileges, off-grounds privileges 
15
(with or without escort by personnel of the
Department of Human 
16
Services), home visits and
participation in work
programs, but 
17
only where such privileges have been approved by specific court

18
order, which order may include such conditions on the defendant 
19
as the
Court may deem appropriate and necessary to reasonably 
20
assure the defendant's
satisfactory progress in treatment and 
21
the safety of the defendant and others.

22
    (c) Every defendant acquitted of a felony by reason of 
23
insanity and
subsequently found to be in need of
mental health 
24
services shall be represented by counsel in all proceedings 
25
under
this Section and under the Mental Health and 
26
Developmental Disabilities Code.


 


 






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        (1) The Court shall appoint as counsel the public 
2
    defender or an
attorney licensed by this State.


3
        (2) Upon filing with the Court of a verified statement 
4
    of legal
services rendered by the private attorney 
5
    appointed pursuant to
paragraph (1) of this subsection, the 
6
    Court shall determine a reasonable
fee for such services.  
7
    If the defendant is unable to pay the fee, the
Court shall 
8
    enter an order upon the State to pay the entire fee or such

9
    amount as the defendant is unable to pay from funds 
10
    appropriated by the
General Assembly for that purpose.

11
    (d) When the facility director determines that: 


12
        (1) the defendant is no longer
in need of mental health 
13
    services on an inpatient basis; and


14
        (2) the defendant may be conditionally released 
15
    because he
or she is still in need of mental health 
16
    services or that the defendant
may be discharged as not in 
17
    need of any mental health services; or


18
        (3) the defendant no longer requires placement in a 
19
    secure setting;

20
the facility director shall give written notice
to the Court, 
21
State's Attorney and defense attorney.
Such notice shall set 
22
forth in detail the basis for the recommendation of
the 
23
facility director, and specify clearly the recommendations, if 
24
any,
of the facility director, concerning conditional release.

25
Any recommendation for conditional release shall include an 
26
evaluation of
the defendant's need for psychotropic 
 


 






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1
medication, what provisions should be
made, if any, to ensure 
2
that the defendant will continue to receive
psychotropic 
3
medication following discharge, and what provisions should be 
4
made
to assure the safety of the defendant and others in the 
5
event the defendant is
no longer receiving psychotropic 
6
medication.
Within 30 days of
the notification by the facility 
7
director, the Court shall set a hearing and
make a finding as 
8
to whether the defendant is:


9
        (i) (blank); or


10
        (ii) in need of mental health services in the form of 
11
    inpatient care; or


12
        (iii) in need of mental health services but not subject 
13
    to inpatient care;
or


14
        (iv) no longer in need of mental health services; or


15
        (v) no longer requires placement in a secure setting.

16
    Upon finding by the Court, the Court shall enter its 
17
findings and such
appropriate order as provided in subsections 
18
(a) and (a-1) of this Section.

19
    (e) A defendant admitted pursuant to this Section, or any 
20
person on
his behalf, may  file a petition for treatment plan 
21
review, transfer to a
non-secure setting within the Department 
22
of Human Services
or discharge or conditional release under the

23
standards of this Section in the Court which rendered the 
24
verdict.  Upon
receipt of a petition for treatment plan review, 
25
transfer to a non-secure
setting or discharge or conditional 
26
release, the Court shall set a hearing to
be held within 120 
 


 






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1
days.  Thereafter, no new petition
may be filed for 180 days

2
without leave of the Court.

3
    (f) The Court shall direct that notice of the time and 
4
place of the
hearing be served upon the defendant, the facility 
5
director, the State's
Attorney, and the defendant's attorney. 
6
If requested by either the State or the
defense or if the Court 
7
feels it is appropriate, an impartial examination
of the 
8
defendant by a psychiatrist or clinical psychologist as defined 
9
in
Section 1-103 of the Mental Health and Developmental 
10
Disabilities Code who
is not in the employ of the Department of 
11
Human Services shall be ordered, and
the report considered at

12
the time of the hearing.

13
    (g) The findings of the Court shall be established by clear 
14
and
convincing evidence.  The burden of proof and the burden of 
15
going forth
with the evidence rest with the defendant or any 
16
person on the defendant's
behalf when a hearing is held to 
17
review
a petition filed by or on
behalf of the defendant.  The 
18
evidence shall be presented in open
Court
with the right of 
19
confrontation and cross-examination.
Such evidence may 
20
include, but is not limited to:


21
        (1) whether the defendant appreciates the harm caused 
22
    by the defendant to
others and the community by his or her 
23
    prior
conduct
that resulted in the finding of not guilty by 
24
    reason of insanity;


25
        (2) Whether the person appreciates the criminality of 
26
    conduct similar to
the conduct for which he or she was 
 


 






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    originally charged in this matter;


2
        (3) the current state of
the defendant's illness;


3
        (4) what, if any, medications the defendant is taking 
4
    to
control his or her mental illness;


5
        (5) what, if any, adverse physical side effects
the 
6
    medication has on the defendant;


7
        (6) the length of time it would take for the 
8
    defendant's mental health to
deteriorate
if
the
defendant 
9
    stopped taking prescribed medication;


10
        (7) the defendant's history or potential for alcohol 
11
    and drug abuse;


12
        (8) the defendant's past criminal history;


13
        (9) any specialized physical or medical needs of the 
14
    defendant;


15
        (10) any family participation or involvement expected 
16
    upon release and
what is the willingness and ability of the 
17
    family to participate or be
involved;


18
        (11) the defendant's potential to be a danger to 
19
    himself, herself, or
others; and


20
        (12) any other factor or factors the Court deems 
21
    appropriate.

22
    (h) Before the court orders that the defendant be 
23
discharged or
conditionally released, it shall order the 
24
facility director to establish a
discharge plan that includes a 
25
plan for the defendant's shelter, support, and
medication.  If 
26
appropriate, the court shall order that the facility director

 


 






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1
establish a program to train the defendant in self-medication 
2
under standards
established by the Department of Human 
3
Services.
If the Court finds, consistent with the provisions of 
4
this Section,
that the defendant is no longer in need of mental

5
health services it shall order the facility director to 
6
discharge the
defendant.  If the Court finds, consistent with 
7
the provisions of this
Section, that the defendant is in need 
8
of mental
health services, and no longer in need of inpatient 
9
care, it shall order
the facility director to release the 
10
defendant under such conditions as the
Court deems appropriate 
11
and as provided by this Section. Such conditional
release shall 
12
be imposed for a period of 5 years as provided in
paragraph
(D) 
13
of subsection (a-1) and shall be
subject
to later modification 
14
by the Court as provided by this Section. If the
Court finds 
15
consistent with the provisions in this Section that the

16
defendant is in
need of mental health services on an inpatient 
17
basis, it shall order the
facility director not to discharge or 
18
release the defendant in accordance
with paragraph (b) of this 
19
Section.

20
    (i) If within the period of the defendant's conditional 
21
release
the State's Attorney determines that the defendant has 
22
not fulfilled the
conditions of his or her release, the State's 
23
Attorney may petition the
Court
to
revoke or modify the 
24
conditional release of the defendant.  Upon the filing of
such 
25
petition the defendant may be remanded to the custody of the 
26
Department,
or to any other mental health facility designated 
 


 






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1
by the Department, pending
the resolution of the petition.  
2
Nothing in this Section shall prevent the
emergency admission 
3
of a defendant pursuant to Article VI of Chapter III of the

4
Mental Health
and Developmental Disabilities Code or the 
5
voluntary admission of the defendant
pursuant to Article IV of 
6
Chapter III of the Mental Health and Developmental
Disabilities

7
Code. If
the Court determines, after hearing evidence, that the 
8
defendant has
not fulfilled the conditions of release, the 
9
Court shall order a hearing
to be held consistent with the 
10
provisions of paragraph (f) and (g) of this
Section. At such 
11
hearing, if the Court finds that the defendant is in need of 
12
mental health services on an inpatient
basis, it shall enter an 
13
order remanding him or her to the Department of
Human Services 
14
or other
facility. If the defendant is remanded to the 
15
Department of Human Services, he
or she shall be placed in
a 
16
secure setting unless the Court
determines that there are 
17
compelling reasons that such placement is not
necessary. If the

18
Court finds that the defendant  continues to be in need of 
19
mental health
services but not on an inpatient basis, it may 
20
modify the conditions of
the original release in order to 
21
reasonably assure the defendant's satisfactory
progress in 
22
treatment and his or her safety and the safety of others in

23
accordance with the standards established in paragraph (D) of 
24
subsection (a-1). Nothing in
this Section shall limit a Court's 
25
contempt powers or any other powers of a
Court.

26
    (j) An order of admission under this Section does not 
 


 






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1
affect the
remedy of habeas corpus.

2
    (k) In the event of a conflict between this Section and the 
3
Mental Health
and Developmental Disabilities Code or the Mental 
4
Health and Developmental
Disabilities Confidentiality Act, the 
5
provisions of this Section shall govern.

6
    (l) This amendatory Act shall apply to all persons who have 
7
been found
not guilty by reason of insanity and who are 
8
presently committed to the
Department of Mental Health and 
9
Developmental Disabilities (now the
Department of Human 
10
Services).

11
    (m) The Clerk of the Court shall, after the entry of an 
12
order of transfer
to a non-secure setting of the Department of 
13
Human Services or discharge or
conditional release, transmit
a 
14
certified
copy of the order to the Department of Human 
15
Services, and the sheriff of the
county from which the

16
defendant was
admitted.
The Clerk of the Court shall also 
17
transmit a certified copy of the order of
discharge or 
18
conditional release to the Illinois Department of State Police, 
19
to
the proper law enforcement agency for the municipality
where 
20
the offense took
place, and to the sheriff of the county into 
21
which the defendant is
conditionally discharged.  The Illinois 
22
Department of State Police shall
maintain a
centralized record 
23
of discharged or conditionally released defendants while
they 
24
are under court supervision for access and use of appropriate 
25
law
enforcement agencies.

26
(Source: P.A. 95-296, eff. 8-20-07; 95-331, eff. 8-21-07.)

 
 
 


 






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1
    Section 99. Effective date. This Act takes effect upon 
2
becoming law.