093_SB1342

 
                                     LRB093 04985 RLC 09927 b

 1        AN ACT in relation to 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
 5    by 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
10    of insanity under Sections 104-25, 115-3 or 115-4 of The Code
11    of Criminal Procedure of 1963, the defendant shall be ordered
12    to the Department of Human Services for an evaluation  as  to
13    whether  he is subject to involuntary admission or in need of
14    mental health services.  The order shall specify whether  the
15    evaluation  shall  be conducted on an inpatient or outpatient
16    basis. If the evaluation is to be conducted on  an  inpatient
17    basis,  the  defendant  shall  be  placed in a secure setting
18    unless the Court determines that there are compelling reasons
19    why such placement  is  not  necessary.  If  the  defendant's
20    conduct  that  was  charged involved a first degree murder, a
21    second degree murder, or  an  offense  resulting  in  serious
22    bodily injury to another or an attempt to commit any of these
23    offenses,  then  the  court  shall order inpatient treatment.
24    After the evaluation and during the period of  time  required
25    to  determine  the  appropriate  placement  if necessary, the
26    defendant shall  remain  in  jail.  Upon  completion  of  the
27    placement   process  the  sheriff shall be notified and shall
28    transport the defendant to the designated facility.
29        The Department shall provide the Court with a  report  of
30    its evaluation within 30 days of the date of this order.  The
31    Court  shall  hold  a  hearing  as  provided under the Mental
 
                            -2-      LRB093 04985 RLC 09927 b
 1    Health and Developmental Disabilities Code  to  determine  if
 2    the  individual is: (a) subject to involuntary admission; (b)
 3    in need of mental health services on an inpatient basis;  (c)
 4    in need of mental health services on an outpatient basis; (d)
 5    a  person  not  in need of mental health services.  The Court
 6    shall enter its findings.
 7        If the defendant is found to be  subject  to  involuntary
 8    admission  or  in  need  of  mental  health  services  on  an
 9    inpatient  care basis, the Court shall order the defendant to
10    the Department of Human  Services.  The  defendant  shall  be
11    placed  in  a secure setting unless the Court determines that
12    there are  compelling  reasons  why  such  placement  is  not
13    necessary.  Such  defendants placed in a secure setting shall
14    not be permitted outside the facility's housing  unit  unless
15    escorted  or  accompanied  by  personnel of the Department of
16    Human Services or with the prior approval of  the  Court  for
17    unsupervised  on-grounds  privileges  as provided herein. Any
18    defendant  placed  in  a  secure  setting  pursuant  to  this
19    Section, transported to court  hearings  or  other  necessary
20    appointments   off  facility  grounds  by  personnel  of  the
21    Department of Human Services, shall may be placed in security
22    devices  or  otherwise   secured   during   the   period   of
23    transportation  to  assure  secure transport of the defendant
24    and the safety of Department of Human Services personnel  and
25    others.    These   security  measures  shall  not  constitute
26    restraint as defined in the Mental Health  and  Developmental
27    Disabilities Code. If the defendant is found to be in need of
28    mental  health  services, but not on an inpatient care basis,
29    the Court shall conditionally release  the  defendant,  under
30    such  conditions  as  set  forth  in  this  Section  as  will
31    reasonably  assure  the defendant's satisfactory progress and
32    participation in treatment or rehabilitation and  the  safety
33    of  the  defendant  and  or  others.   If the Court finds the
34    person not in need of mental health services, then the  Court
 
                            -3-      LRB093 04985 RLC 09927 b
 1    shall order the defendant discharged from custody.
 2        (1)  Definitions:  For the purposes of this Section:
 3             (A)  "Subject  to  involuntary  admission" means:  a
 4        defendant  has  been  found  not  guilty  by  reason   of
 5        insanity; and
 6                  (i)  who is mentally ill and who because of his
 7             mental  illness  is  reasonably  expected to inflict
 8             serious physical harm upon himself or another in the
 9             near future; or
10                  (ii)  who is mentally ill and  who  because  of
11             his  illness  is  unable  to  provide  for his basic
12             physical needs so as to guard himself  from  serious
13             harm.
14             (B)  "In  need  of  mental  health  services  on  an
15        inpatient  basis"  means:  a defendant who has been found
16        not guilty by reason of insanity who is  not  subject  to
17        involuntary  admission  but who is reasonably expected to
18        inflict serious physical harm upon himself or another and
19        who would benefit from inpatient care or is  in  need  of
20        inpatient  care.  It also includes a person whose conduct
21        for which a disposition under this  Section  was  ordered
22        involved  a  first degree murder, a second degree murder,
23        or an offense  resulting  in  serious  bodily  injury  to
24        another  or was a forcible felony or an attempt to commit
25        any of these offenses.
26             (C)  "In  need  of  mental  health  services  on  an
27        outpatient basis" means: a defendant who has  been  found
28        not  guilty  by  reason of insanity who is not subject to
29        involuntary  admission  or  in  need  of  mental   health
30        services  on  an  inpatient  basis,  but  is  in  need of
31        outpatient  care,  drug  and/or  alcohol   rehabilitation
32        programs,   community  adjustment  programs,  individual,
33        group, or family therapy, or chemotherapy.
34             (D)  "Conditional Release" means: the  release  from
 
                            -4-      LRB093 04985 RLC 09927 b
 1        either the custody of the Department of Human Services or
 2        the  custody  of the Court of a person who has been found
 3        not guilty by reason of insanity under such conditions as
 4        the  Court  may  impose  which  reasonably   assure   the
 5        defendant's   satisfactory   progress   in  treatment  or
 6        habilitation and the safety of the defendant and  others.
 7        The  Court shall consider such terms and conditions which
 8        may include, but need not be limited to, outpatient care,
 9        alcoholic and  drug  rehabilitation  programs,  community
10        adjustment   programs,  individual,  group,  family,  and
11        chemotherapy, random testing to  insure  the  defendant's
12        timely  and continuous taking of any medicines prescribed
13        to control or manage his or her conduct or mental  state,
14        periodic  checks  with  the  legal authorities and/or the
15        Department  of  Human  Services.  The   report   of   the
16        evaluation  as  to  whether  the  defendant is subject to
17        involuntary  admission  or  in  need  of  mental   health
18        services,  including  any  conditions or recommendations,
19        shall be in writing and submitted to the  court  and  the
20        State  at  least  30  days prior to any hearing to insure
21        proper input from the State's Attorney on record  in  the
22        case  and  consideration  by  the  court.   The person or
23        facility rendering the outpatient care shall be  required
24        to  periodically  report  in  writing to the Court on the
25        progress of the defendant with a  copy  provided  to  the
26        State's  Attorney on record in the case. Such conditional
27        release shall be for a specific period of  time,  subject
28        to  the  ability of any party to obtain a continuation of
29        the  conditional  release  of  five  years,  unless   the
30        defendant,   the   person   or   facility  rendering  the
31        treatment, therapy, program or outpatient  care,  or  the
32        State's  Attorney petitions the Court for an extension of
33        the conditional release period for  an  additional  three
34        years.  Upon receipt of such a petition for a conditional
 
                            -5-      LRB093 04985 RLC 09927 b
 1        release or continuation of conditional release, the Court
 2        shall hold a hearing consistent with  the  provisions  of
 3        this  paragraph  (a)  and  paragraph (f) of this Section,
 4        shall determine whether the defendant should  be  granted
 5        or  continue  to  be  subject to the terms of conditional
 6        release, and shall enter  an  order  either  granting  or
 7        extending  the  defendant's period of conditional release
 8        for a single additional three year period or  discharging
 9        the  defendant.  In no event shall the defendant's period
10        of  conditional  release  exceed   eight   years.   These
11        provisions  for  extension  of  conditional release shall
12        only apply to defendants  conditionally  released  on  or
13        after  July  1,  1979. Except for defendants charged with
14        other than first degree murder, second degree murder,  an
15        offense  resulting in a serious bodily injury to another,
16        or a forcible felony or attempt to commit  any  of  these
17        offenses,  a period of conditional release may not extend
18        beyond 8 years without  another  hearing  being  held  to
19        grant the defendant unconditional release or if there are
20        compelling  reasons  the court may extend the conditional
21        release for 3-year increments  before  the  next  hearing
22        having  to  be  held. Compelling reasons include, but are
23        not limited to, prior violations by a  defendant  of  the
24        terms  of  a  conditional  release. However the extension
25        provisions of Public Act 83-1449 apply only to defendants
26        charged with a forcible felony.
27             (E)  "Facility director" means the chief officer  of
28        a mental health or developmental disabilities facility or
29        his  or  her  designee  or the supervisor of a program of
30        treatment  or  habilitation  or  his  or  her   designee.
31        "Designee"    may    include    a   physician,   clinical
32        psychologist, social worker, or nurse.
33        (b)  If  the  Court  finds  the  defendant   subject   to
34    involuntary admission or in need of mental health services on
 
                            -6-      LRB093 04985 RLC 09927 b
 1    an inpatient basis, the admission, detention, care, treatment
 2    or   habilitation,   treatment   plans,  review  proceedings,
 3    including  review  of  treatment  and  treatment  plans,  and
 4    discharge of the defendant after such order  shall  be  under
 5    the Mental Health and Developmental Disabilities Code, except
 6    that the initial order for admission of a defendant acquitted
 7    of  a felony by reason of insanity shall be for an indefinite
 8    period of time. Such period of commitment  shall  not  exceed
 9    the maximum length of time that the defendant would have been
10    required  to  serve,  less credit for good behavior except in
11    the case of an original charge of first degree murder, second
12    degree murder, an offense involving serious bodily injury  to
13    another  or a forcible felony, or an attempt to commit any of
14    these offenses, before becoming eligible for release  had  he
15    been  convicted  of and received the maximum sentence for the
16    most serious crime for which he has been acquitted by  reason
17    of  insanity. The Court shall determine the maximum period of
18    commitment by an appropriate order. During   this  period  of
19    time,  the  defendant  shall  not  be  permitted to be in the
20    community  in  any  manner,  including  but  not  limited  to
21    off-grounds privileges, with or without escort  by  personnel
22    of  the Department of Human Services, unsupervised on-grounds
23    privileges, discharge or conditional  or  temporary  release,
24    except  by  a  plan as provided in this Section.  In no event
25    shall a defendant's continued unauthorized absence be a basis
26    for discharge.  Not more than 30  days  after  admission  and
27    every  120  60  days  thereafter so long as the initial order
28    remains  in  effect,  the  facility  director  shall  file  a
29    treatment plan report in writing with the court and forward a
30    copy of the treatment plan report to the clerk of the  court,
31    the  State's  Attorney,  and the defendant's attorney, if the
32    defendant is represented  by  counsel,  in  the  case  of  an
33    original charge of first degree murder, second degree murder,
34    an  offense  involving infliction of serious bodily injury, a
 
                            -7-      LRB093 04985 RLC 09927 b
 1    forcible felony,  or  an  attempt  to  commit  any  of  these
 2    offenses  to the defendant's victim or to a person authorized
 3    by the defendant under the Mental  Health  and  Developmental
 4    Disabilities  Confidentiality  Act  to  be sent a copy of the
 5    report.  The report shall include an statement opinion as  to
 6    whether  the  defendant  is  currently subject to involuntary
 7    admission, in need of mental health services on an  inpatient
 8    basis,  or in need of mental health services on an outpatient
 9    basis.  The report shall also summarize the basis  for  those
10    findings and provide a current summary of the following items
11    from the treatment plan: (1) an assessment of the defendant's
12    treatment   needs,   (2)   a   description  of  the  services
13    recommended for treatment, (3) the  goals  of  each  type  of
14    element  of  service,  (4)  an  anticipated timetable for the
15    accomplishment of the goals, and (5)  a  designation  of  the
16    qualified  professional responsible for the implementation of
17    the plan. The report may also include unsupervised on-grounds
18    privileges, off-grounds privileges (with or without escort by
19    personnel of the Department of Human Services),  home  visits
20    and  participation  in  work  programs,  but  only where such
21    privileges have been approved by specific court order,  which
22    order  may  include  such  conditions on the defendant as the
23    Court may deem appropriate and necessary to reasonably assure
24    the defendant's satisfactory progress in  treatment  and  the
25    safety of the defendant and others.
26        (c)  Every  defendant  acquitted of a felony by reason of
27    insanity and subsequently found to be subject to  involuntary
28    admission  or  in  need  of  mental  health services shall be
29    represented by counsel in all proceedings under this  Section
30    and  under  the  Mental Health and Developmental Disabilities
31    Code.
32             (1)  The Court shall appoint as counsel  the  public
33        defender or an attorney licensed by this State.
34             (2)  Upon  filing  with  the  Court  of  a  verified
 
                            -8-      LRB093 04985 RLC 09927 b
 1        statement  of  legal  services  rendered  by  the private
 2        attorney appointed pursuant  to  paragraph  (1)  of  this
 3        subsection,  the  Court  shall determine a reasonable fee
 4        for such services.  If the defendant is unable to pay the
 5        fee, the Court shall enter an order upon the State to pay
 6        the entire fee or such amount as the defendant is  unable
 7        to  pay  from  funds appropriated by the General Assembly
 8        for that purpose.
 9        (d)  (Blank). When the facility director determines that:
10             (1)  the  defendant  is   no   longer   subject   to
11        involuntary   admission  or  in  need  of  mental  health
12        services on an inpatient basis; and
13             (2)  the defendant  may  be  conditionally  released
14        because  he  or  she  is  still  in need of mental health
15        services or that the defendant may be discharged  as  not
16        in need of any mental health services; or
17             (3)  the defendant no longer requires placement in a
18        secure setting;
19    the facility director shall give written notice to the Court,
20    State's  Attorney and defense attorney. Such notice shall set
21    forth in detail the  basis  for  the  recommendation  of  the
22    facility  director,  and specify clearly the recommendations,
23    if any, of  the  facility  director,  concerning  conditional
24    release.   Within 30 days of the notification by the facility
25    director, the Court shall set a hearing and make a finding as
26    to whether the defendant is:
27             (i)  subject to involuntary admission; or
28             (ii)  in need of mental health services in the  form
29        of inpatient care; or
30             (iii)  in  need  of  mental  health services but not
31        subject to involuntary admission or inpatient care; or
32             (iv)  no longer in need of mental  health  services;
33        or
34             (v)  no   longer  requires  placement  in  a  secure
 
                            -9-      LRB093 04985 RLC 09927 b
 1        setting.
 2        Upon finding by the Court,  the  Court  shall  enter  its
 3    findings and such appropriate order as provided in subsection
 4    (a) of this Section.
 5        (e)  A  defendant  admitted  pursuant to this Section, or
 6    any person on his behalf, may  file a petition for  treatment
 7    plan  review,  transfer  to  a  non-secure setting within the
 8    Department of Human  Services  or  discharge  or  conditional
 9    release  under  the  standards  of  this Section in the Court
10    which rendered the verdict.  Upon receipt of a  petition  for
11    treatment  plan  review,  transfer to a non-secure setting or
12    discharge or conditional  release,  the  Court  shall  set  a
13    hearing  to  be  held  within  120  days.  Thereafter, no new
14    petition, except for treatment plan review, may be filed  for
15    120 days without leave of the Court for compelling reasons.
16        (f)  The  Court  shall direct that notice of the time and
17    place of the  hearing  be  served  upon  the  defendant,  the
18    facility  director, the State's Attorney, and the defendant's
19    attorney. If requested by either the State or the defense  or
20    if   the   Court   feels  it  is  appropriate,  an  impartial
21    examination of the defendant by a  psychiatrist  or  clinical
22    psychologist as defined in Section 1-103 of the Mental Health
23    and  Developmental Disabilities Code who is not in the employ
24    of the Department of Human Services shall be ordered, and the
25    report considered at the time of the hearing.
26        (g)  The findings of the Court shall  be  established  by
27    clear  and  convincing evidence.  The burden of proof and the
28    burden of  going  forth  with  the  evidence  rest  with  the
29    defendant  or  any  person  on  the defendant's behalf when a
30    hearing is held to review the determination of  the  facility
31    director  that  the  defendant  should  be  transferred  to a
32    non-secure setting, discharged, or conditionally released  or
33    when  a  hearing  is held to review a petition filed by or on
34    behalf of the defendant.  The evidence shall be presented  in
 
                            -10-     LRB093 04985 RLC 09927 b
 1    open    Court   with   the   right   of   confrontation   and
 2    cross-examination. If the defendant  has  been  charged  with
 3    first   degree  murder,  second  degree  murder,  an  offense
 4    resulting in  infliction  of  serious  bodily  injury,  or  a
 5    forcible  felony  or  an  attempt  to  commit  any  of  these
 6    offenses, it is appropriate to present evidence as to whether
 7    the  defendant  now  fully  understands  that  the conduct is
 8    legally wrong and should not be  engaged  in.    It  is  also
 9    appropriate  in those cases to present evidence as to whether
10    the defendant is likely or  not  likely  going  to  take  any
11    prescribed  medicine  for  his  or  her  protection  and  the
12    protection   of   others  and  how  quickly  and  effectively
13    protections can be put in place to insure his or  her  safety
14    and that of others if the defendant does not take medicine as
15    prescribed.
16        (h)  If the Court finds consistent with the provisions in
17    this  Section  that  the  defendant  is  no longer in need of
18    mental health services it shall order the  facility  director
19    to  discharge  the  defendant.  If the Court finds consistent
20    with the provisions in this Section that the defendant is  in
21    need  of  mental  health  services,  and no longer in need of
22    inpatient care, it  shall  order  the  facility  director  to
23    release  the  defendant  under  such  conditions as the Court
24    deems appropriate and  as  provided  by  this  Section.  Such
25    conditional  release  shall  be  imposed for a period of five
26    years and shall be subject   to  later  modification  by  the
27    Court  as  provided  by  this  Section.  If  the  Court finds
28    consistent with the  provisions  in  this  Section  that  the
29    defendant  is  subject to involuntary admission or in need of
30    mental health services on an inpatient basis, it shall  order
31    the  facility  director  not  to  discharge  or  release  the
32    defendant in accordance with paragraph (b) of this Section.
33        (i)  If  within the period of the defendant's conditional
34    release, the Court determines, after hearing  evidence,  that
 
                            -11-     LRB093 04985 RLC 09927 b
 1    the  defendant  has  not fulfilled the conditions of release,
 2    the Court shall order a hearing to be  held  consistent  with
 3    the  provisions  of paragraph (f) and (g) of this Section. At
 4    such hearing, if the  Court  finds  that  the  defendant  has
 5    violated  his  or  her  conditional  discharge,  is otherwise
 6    subject to involuntary admission or in need of mental  health
 7    services  on  an  inpatient  basis,  it  shall enter an order
 8    remanding him or her to the Department of Human  Services  or
 9    other   facility.   If  the  defendant  is  remanded  to  the
10    Department of Human Services, he or she shall be placed in  a
11    secure  setting  unless  the  Court determines that there are
12    compelling reasons that  such  placement  is  not  necessary.
13    Notwithstanding  any  other  provision  or  this  Section,  a
14    defendant  whose  conditional  discharge  is  revoked  due to
15    violation of its conditions may not be credited for any prior
16    time  served  as  involuntary  admission  or  on  conditional
17    discharge for purpose of  satisfying  the  maximum  time  for
18    involuntary admission under this Act. If the Court finds that
19    the  defendant   continues  to  be  in  need of mental health
20    services but not on an inpatient basis,  it  may  modify  the
21    conditions  of  the  original  release in order to reasonably
22    assure the defendant's satisfactory progress in treatment and
23    his or her safety and the safety of others. In no event shall
24    such conditional release be longer than eight years.  Nothing
25    in  this Section shall limit a Court's contempt powers or any
26    other powers of a Court.
27        (j)  An order of admission under this  Section  does  not
28    affect the remedy of habeas corpus.
29        (k)  In  the event of a conflict between this Section and
30    the Mental Health and Developmental Disabilities Code or  the
31    Mental  Health and Developmental Disabilities Confidentiality
32    Act, the provisions of this Section shall govern.
33        (l)  This amendatory Act shall apply to all  persons  who
34    have  been found not guilty by reason of insanity and who are
 
                            -12-     LRB093 04985 RLC 09927 b
 1    presently committed to the Department of  Mental  Health  and
 2    Developmental  Disabilities  (now  the  Department  of  Human
 3    Services).
 4        (m)  The  Clerk of the Court shall, after the entry of an
 5    order of transfer to a non-secure setting of  the  Department
 6    of  Human  Services  or  discharge  or  conditional  release,
 7    transmit  a  certified copy of the order to the Department of
 8    Human Services, and the sheriff of the county from which  the
 9    defendant  was  admitted.   In  cases where the arrest of the
10    defendant or the commission of the offense took place in  any
11    municipality  with  a population of more than 25,000 persons,
12    the Clerk of the Court shall also transmit a  certified  copy
13    of  the  order  of  discharge  or  conditional release to the
14    proper law enforcement agency for said municipality  provided
15    the municipality has requested such notice in writing.
16    (Source:  P.A.  90-105,  eff.  7-11-97; 90-593, eff. 6-19-98;
17    91-536, eff. 1-1-00; 91-770, eff. 1-1-01.)