093_SB1342eng SB1342 Engrossed 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 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 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, an 21 attempt to commit first degree murder, or a second degree 22 murder, then the court shall order inpatient treatment. After 23 the evaluation and during the period of time required to 24 determine the appropriate placement, the defendant shall 25 remain in jail. Upon completion of the placement process the 26 sheriff shall be notified and shall transport the defendant 27 to the designated facility. 28 The Department shall provide the Court with a report of 29 its evaluation within 30 days of the date of this order. The 30 Court shall hold a hearing as provided under the Mental 31 Health and Developmental Disabilities Code to determine if SB1342 Engrossed -2- LRB093 04985 RLC 09927 b 1 the individual is: (a) subject to involuntary admission; (b) 2 in need of mental health services on an inpatient basis; (c) 3 in need of mental health services on an outpatient basis; (d) 4 a person not in need of mental health services. The Court 5 shall enter its findings. 6 If the defendant is found to be subject to involuntary 7 admission or in need of mental health services on an 8 inpatient care basis, the Court shall order the defendant to 9 the Department of Human Services. The defendant shall be 10 placed in a secure setting unless the Court determines that 11 there are compelling reasons why such placement is not 12 necessary. Such defendants placed in a secure setting shall 13 not be permitted outside the facility's housing unit unless 14 escorted or accompanied by personnel of the Department of 15 Human Services or with the prior approval of the Court for 16 unsupervised on-grounds privileges as provided herein. Any 17 defendant placed in a secure setting pursuant to this 18 Section, transported to court hearings or other necessary 19 appointments off facility grounds by personnel of the 20 Department of Human Services, shallmaybe placed in security 21 devices or otherwise secured during the period of 22 transportation to assure secure transport of the defendant 23 and the safety of Department of Human Services personnel and 24 others. These security measures shall not constitute 25 restraint as defined in the Mental Health and Developmental 26 Disabilities Code. If the defendant is found to be in need of 27 mental health services, but not on an inpatient care basis, 28 the Court shall conditionally release the defendant, under 29 such conditions as set forth in this Section as will 30 reasonably assure the defendant's satisfactory progress and 31 participation in treatment or rehabilitation and the safety 32 of the defendant andorothers. If the Court finds the 33 person not in need of mental health services, then the Court 34 shall order the defendant discharged from custody. SB1342 Engrossed -3- LRB093 04985 RLC 09927 b 1 (1) Definitions: For the purposes of this Section: 2 (A) "Subject to involuntary admission" means: a 3 defendant has been found not guilty by reason of 4 insanity; and 5 (i) who is mentally ill and who because of his 6 mental illness is reasonably expected to inflict 7 serious physical harm upon himself or another in the 8nearfuture; or 9 (ii) who is mentally ill and who because of 10 his illness is unable to provide for his basic 11 physical needs so as to guard himself from serious 12 harm. 13 (B) "In need of mental health services on an 14 inpatient basis" means: a defendant who has been found 15 not guilty by reason of insanity who is not subject to 16 involuntary admission but who is reasonably expected to 17 inflict serious physical harm upon himself or another and 18 who would benefit from inpatient care or is in need of 19 inpatient care. It also includes a person whose conduct 20 for which a disposition under this Section was ordered 21 involved a first degree murder, an attempt to commit 22 first degree murder, or a second degree murder. 23 (C) "In need of mental health services on an 24 outpatient basis" means: a defendant who has been found 25 not guilty by reason of insanity who is not subject to 26 involuntary admission or in need of mental health 27 services on an inpatient basis, but is in need of 28 outpatient care, drug and/or alcohol rehabilitation 29 programs, community adjustment programs, individual, 30 group, or family therapy, or chemotherapy. 31 (D) "Conditional Release" means: the release from 32 either the custody of the Department of Human Services or 33 the custody of the Court of a person who has been found 34 not guilty by reason of insanity under such conditions as SB1342 Engrossed -4- LRB093 04985 RLC 09927 b 1 the Court may impose which reasonably assure the 2 defendant's satisfactory progress in treatment or 3 habilitation and the safety of the defendant and others. 4 The Court shall consider such terms and conditions which 5 may include, but need not be limited to, outpatient care, 6 alcoholic and drug rehabilitation programs, community 7 adjustment programs, individual, group, family, and 8 chemotherapy, random testing to insure the defendant's 9 timely and continuous taking of any medicines prescribed 10 to control or manage his or her conduct or mental state, 11 periodic checks with the legal authorities and/or the 12 Department of Human Services. The report of the 13 evaluation as to whether the defendant is subject to 14 involuntary admission or in need of mental health 15 services, including any conditions or recommendations, 16 shall be in writing and submitted to the court and the 17 State at least 30 days prior to any hearing to insure 18 proper input from the State's Attorney of record in the 19 case and consideration by the court. The person or 20 facility rendering the outpatient care shall be required 21 to submit written reports every 90 daysperiodically22reportto the Court on the progress of the defendant with 23 a copy provided to the State's Attorney of record in the 24 case. Such conditional release shall be for a period of 25 10fiveyears, unless the defendant, the person or 26 facility rendering the treatment, therapy, program or 27 outpatient care, or the State's Attorney petitions the 28 Court for an extension of the conditional release period 29 for an additional 5threeyears. Upon receipt of such a 30 petition, the Court shall hold a hearing consistent with 31 the provisions of this paragraph (a) and paragraph (f) of 32 this Section, shall determine whether the defendant 33 should continue to be subject to the terms of conditional 34 release, and shall enter an order either extending the SB1342 Engrossed -5- LRB093 04985 RLC 09927 b 1 defendant's period of conditional release for a single 2 additional 5threeyear period or discharging the 3 defendant. In no event shall the defendant's period of 4 conditional release exceed 15eightyears. These 5 provisions for extension of conditional release shall 6 only apply to defendants conditionally released on or 7 after July 1, 1979.However the extension provisions of8Public Act 83-1449 apply only to defendants charged with9a forcible felony.10 (E) "Facility director" means the chief officer of 11 a mental health or developmental disabilities facility or 12 his or her designee or the supervisor of a program of 13 treatment or habilitation or his or her designee. 14 "Designee" may include a physician, clinical 15 psychologist, social worker, or nurse. 16 (b) If the Court finds the defendant subject to 17 involuntary admission or in need of mental health services on 18 an inpatient basis, the admission, detention, care, treatment 19 or habilitation, treatment plans, review proceedings, 20 including review of treatment and treatment plans, and 21 discharge of the defendant after such order shall be under 22 the Mental Health and Developmental Disabilities Code, except 23 that the initial order for admission of a defendant acquitted 24 of a felony by reason of insanity shall be for an indefinite 25 period of time. Such period of commitment shall not exceed 26 the maximum length of time that the defendant would have been 27 required to serve, less credit for good behavior except in 28 the case of an original charge of first degree murder, an 29 attempt to commit first degree murder, or a second degree 30 murder, before becoming eligible for release had he been 31 convicted of and received the maximum sentence for the most 32 serious crime for which he has been acquitted by reason of 33 insanity. The Court shall determine the maximum period of 34 commitment by an appropriate order. During this period of SB1342 Engrossed -6- LRB093 04985 RLC 09927 b 1 time, the defendant shall not be permitted to be in the 2 community in any manner, including but not limited to 3 off-grounds privileges, with or without escort by personnel 4 of the Department of Human Services, unsupervised on-grounds 5 privileges, discharge or conditional or temporary release, 6 except by a plan as provided in this Section. In no event 7 shall a defendant's continued unauthorized absence be a basis 8 for discharge. Not more than 30 days after admission and 9 every 12060days thereafter so long as the initial order 10 remains in effect, the facility director shall file a 11 treatment plan report in writing with the court and forward a 12 copy of the treatment plan report to the clerk of the court, 13 the State's Attorney, and the defendant's attorney, if the 14 defendant is represented by counsel, in the case of an 15 original charge of first degree murder, an attempt to commit 16 first degree murder, or a second degree murder to the 17 defendant's victim or to a person authorized by the defendant 18 under the Mental Health and Developmental Disabilities 19 Confidentiality Act to be sent a copy of the report. The 20 report shall include a statementan opinionas to whether the 21 defendant is currently subject to involuntary admission, in 22 need of mental health services on an inpatient basis, or in 23 need of mental health services on an outpatient basis. The 24 report shall also summarize the basis for those findings and 25 provide a current summary of the following items from the 26 treatment plan: (1) an assessment of the defendant's 27 treatment needs, (2) a description of the services 28 recommended for treatment, (3) the goals of each type of 29 element of service, (4) an anticipated timetable for the 30 accomplishment of the goals, and (5) a designation of the 31 qualified professional responsible for the implementation of 32 the plan. The report may also include unsupervised on-grounds 33 privileges, off-grounds privileges (with or without escort by 34 personnel of the Department of Human Services), home visits SB1342 Engrossed -7- LRB093 04985 RLC 09927 b 1 and participation in work programs, but only where such 2 privileges have been approved by specific court order, which 3 order may include such conditions on the defendant as the 4 Court may deem appropriate and necessary to reasonably assure 5 the defendant's satisfactory progress in treatment and the 6 safety of the defendant and others. 7 (c) Every defendant acquitted of a felony by reason of 8 insanity and subsequently found to be subject to involuntary 9 admission or in need of mental health services shall be 10 represented by counsel in all proceedings under this Section 11 and under the Mental Health and Developmental Disabilities 12 Code. 13 (1) The Court shall appoint as counsel the public 14 defender or an attorney licensed by this State. 15 (2) Upon filing with the Court of a verified 16 statement of legal services rendered by the private 17 attorney appointed pursuant to paragraph (1) of this 18 subsection, the Court shall determine a reasonable fee 19 for such services. If the defendant is unable to pay the 20 fee, the Court shall enter an order upon the State to pay 21 the entire fee or such amount as the defendant is unable 22 to pay from funds appropriated by the General Assembly 23 for that purpose. 24 (d) When the facility director determines that: 25 (1) the defendant is no longer subject to 26 involuntary admission or in need of mental health 27 services on an inpatient basis; and 28 (2) the defendant may be conditionally released 29 because he or she is still in need of mental health 30 services or that the defendant may be discharged as not 31 in need of any mental health services; or 32 (3) the defendant no longer requires placement in a 33 secure setting; 34 the facility director shall give written notice to the Court, SB1342 Engrossed -8- LRB093 04985 RLC 09927 b 1 State's Attorney and defense attorney. Such notice shall set 2 forth in detail the basis for the recommendation of the 3 facility director, and specify clearly the recommendations, 4 if any, of the facility director, concerning conditional 5 release. Within 30 days of the notification by the facility 6 director, the Court shall set a hearing and make a finding as 7 to whether the defendant is: 8 (i) subject to involuntary admission; or 9 (ii) in need of mental health services in the form 10 of inpatient care; or 11 (iii) in need of mental health services but not 12 subject to involuntary admission or inpatient care; or 13 (iv) no longer in need of mental health services; 14 or 15 (v) no longer requires placement in a secure 16 setting. 17 Upon finding by the Court, the Court shall enter its 18 findings and such appropriate order as provided in subsection 19 (a) of this Section. 20 (e) A defendant admitted pursuant to this Section, or 21 any person on his behalf, may file a petition for treatment 22 plan review, transfer to a non-secure setting within the 23 Department of Human Services or discharge or conditional 24 release under the standards of this Section in the Court 25 which rendered the verdict. Upon receipt of a petition for 26 treatment plan review, transfer to a non-secure setting or 27 discharge or conditional release, the Court shall set a 28 hearing to be held within 365120days. Thereafter, no new 29 petition may be filed for 365120days without leave of the 30 Court. 31 (f) The Court shall direct that notice of the time and 32 place of the hearing be served upon the defendant, the 33 facility director, the State's Attorney, and the defendant's 34 attorney. If requested by either the State or the defense or SB1342 Engrossed -9- LRB093 04985 RLC 09927 b 1 if the Court feels it is appropriate, an impartial 2 examination of the defendant by a psychiatrist or clinical 3 psychologist as defined in Section 1-103 of the Mental Health 4 and Developmental Disabilities Code who is not in the employ 5 of the Department of Human Services shall be ordered, and the 6 report considered at the time of the hearing. 7 (g) The findings of the Court shall be established by 8 clear and convincing evidence. The burden of proof and the 9 burden of going forth with the evidence rest with the 10 defendant or any person on the defendant's behalf when a 11 hearing is held to review a petition filed by or on behalf of 12 the defendant. The evidence shall be presented in open Court 13 with the right of confrontation and cross-examination. If the 14 defendant has been charged with a first degree murder, an 15 attempt to commit first degree murder, or a second degree 16 murder, such evidence shall include, but is not limited to: 17 (1) whether the defendant appreciates the 18 criminality of his or her prior conduct that resulted in 19 the finding of not guilty by reason of insanity; 20 (2) the current state of the defendant's illness; 21 (3) what, if any, medications the defendant is 22 taking to control his or her mental illness; 23 (4) what, if any, adverse physical side effects the 24 medication has on the defendant; 25 (5) the length of time it would take for the 26 defendant's mental health to deteriorate if the defendant 27 stopped taking prescribed medication; 28 (6) the defendant's history or potential for 29 alcohol and drug abuse; 30 (7) the defendant's past criminal history; 31 (8) any specialized physical or medical needs of 32 the defendant; 33 (9) any family participation or involvement 34 expected upon release; SB1342 Engrossed -10- LRB093 04985 RLC 09927 b 1 (10) the defendant's potential to be a danger to 2 himself, herself, or others; and 3 (11) any other factor or factors the court deems 4 appropriate. 5 (h) If the Court finds, consistent with the provisions 6 of this Section, that the defendant is no longer in need of 7 mental health services it shall order the facility director 8 to discharge the defendant. If the Court finds, consistent 9 with the provisions of this Section, that the defendant is in 10 need of mental health services, and no longer in need of 11 inpatient care, it shall order the facility director to 12 release the defendant under such conditions as the Court 13 deems appropriate and as provided by this Section. Such 14 conditional release shall be imposed for a period of 15five15 years and shall be subject to later modification by the 16 Court as provided by this Section. If the Court finds 17 consistent with the provisions in this Section that the 18 defendant is subject to involuntary admission or in need of 19 mental health services on an inpatient basis, it shall order 20 the facility director not to discharge or release the 21 defendant in accordance with paragraph (b) of this Section. 22 (i) If within the period of the defendant's conditional 23 release, the Court determines, after hearing evidence, that 24 the defendant has not fulfilled the conditions of release, 25 the Court shall order a hearing to be held consistent with 26 the provisions of paragraph (f) and (g) of this Section. At 27 such hearing, if the Court finds that the defendant has 28 violated his or her conditional discharge, is otherwise 29 subject to involuntary admission or in need of mental health 30 services on an inpatient basis, it shall enter an order 31 remanding him or her to the Department of Human Services or 32 other facility. If the defendant is remanded to the 33 Department of Human Services, he or she shall be placed in a 34 secure setting unless the Court determines that there are SB1342 Engrossed -11- LRB093 04985 RLC 09927 b 1 compelling reasons that such placement is not necessary. 2 Notwithstanding any other provision of this Section, a court 3 may, in its discretion, deny a defendant whose conditional 4 discharge is revoked due to violation of its conditions any 5 credit for any prior time served as involuntary admission or 6 on conditional discharge for purpose of satisfying the 7 maximum time for involuntary admission under this Act. If the 8 Court finds that the defendant continues to be in need of 9 mental health services but not on an inpatient basis, it may 10 modify the conditions of the original release in order to 11 reasonably assure the defendant's satisfactory progress in 12 treatment and his or her safety and the safety of others. In 13 no event shall such conditional release be longer than 15 14eightyears. Nothing in this Section shall limit a Court's 15 contempt powers or any other powers of a Court. 16 (j) An order of admission under this Section does not 17 affect the remedy of habeas corpus. 18 (k) In the event of a conflict between this Section and 19 the Mental Health and Developmental Disabilities Code or the 20 Mental Health and Developmental Disabilities Confidentiality 21 Act, the provisions of this Section shall govern. 22 (l) This amendatory Act shall apply to all persons who 23 have been found not guilty by reason of insanity and who are 24 presently committed to the Department of Mental Health and 25 Developmental Disabilities (now the Department of Human 26 Services). 27 (m) The Clerk of the Court shall, after the entry of an 28 order of transfer to a non-secure setting of the Department 29 of Human Services or discharge or conditional release, 30 transmit a certified copy of the order to the Department of 31 Human Services, and the sheriff of the county from which the 32 defendant was admitted. In cases where the arrest of the 33 defendant or the commission of the offense took place in any 34 municipality with a population of more than 25,000 persons, SB1342 Engrossed -12- LRB093 04985 RLC 09927 b 1 the Clerk of the Court shall also transmit a certified copy 2 of the order of discharge or conditional release to the 3 proper law enforcement agency for said municipality provided 4 the municipality has requested such notice in writing. 5 (Source: P.A. 90-105, eff. 7-11-97; 90-593, eff. 6-19-98; 6 91-536, eff. 1-1-00; 91-770, eff. 1-1-01.)