093_SB1342enr

 
SB1342 Enrolled                      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. After the evaluation and
20    during   the   period  of  time  required  to  determine  the
21    appropriate placement, the defendant shall  remain  in  jail.
22    Upon  completion  of the placement  process the sheriff shall
23    be  notified  and  shall  transport  the  defendant  to   the
24    designated facility.
25        The  Department  shall provide the Court with a report of
26    its evaluation within 30 days of the date of this order.  The
27    Court shall hold a  hearing  as  provided  under  the  Mental
28    Health  and  Developmental  Disabilities Code to determine if
29    the individual is: (a) subject to involuntary admission;  (a)
30    (b)  in need of mental health services on an inpatient basis;
31    (b) (c) in need of mental health services  on  an  outpatient
 
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 1    basis;  (c)  (d)  a  person  not  in  need  of  mental health
 2    services.  The Court shall enter its findings.
 3        If the defendant is found to be  subject  to  involuntary
 4    admission  or  in  need  of  mental  health  services  on  an
 5    inpatient  care basis, the Court shall order the defendant to
 6    the Department of Human  Services.  The  defendant  shall  be
 7    placed  in  a secure setting unless the Court determines that
 8    there are  compelling  reasons  why  such  placement  is  not
 9    necessary.  Such  defendants placed in a secure setting shall
10    not be permitted outside the facility's housing  unit  unless
11    escorted  or  accompanied  by  personnel of the Department of
12    Human Services or with the prior approval of  the  Court  for
13    unsupervised  on-grounds  privileges  as provided herein. Any
14    defendant  placed  in  a  secure  setting  pursuant  to  this
15    Section, transported to court  hearings  or  other  necessary
16    appointments   off  facility  grounds  by  personnel  of  the
17    Department of Human Services, shall may be placed in security
18    devices  or  otherwise   secured   during   the   period   of
19    transportation  to  assure  secure transport of the defendant
20    and the safety of Department of Human Services personnel  and
21    others.    These   security  measures  shall  not  constitute
22    restraint as defined in the Mental Health  and  Developmental
23    Disabilities Code. If the defendant is found to be in need of
24    mental  health  services, but not on an inpatient care basis,
25    the Court shall conditionally release  the  defendant,  under
26    such  conditions  as  set  forth  in  this  Section  as  will
27    reasonably  assure  the defendant's satisfactory progress and
28    participation in treatment or rehabilitation and  the  safety
29    of  the  defendant  and  or  others.   If the Court finds the
30    person not in need of mental health services, then the  Court
31    shall order the defendant discharged from custody.
32        (1)  Definitions:  For the purposes of this Section:
33             (A)  (Blank).  "Subject  to  involuntary  admission"
34        means:   a  defendant has been found not guilty by reason
 
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 1        of insanity; and
 2                  (i)  who is mentally ill and who because of his
 3             mental illness is  reasonably  expected  to  inflict
 4             serious physical harm upon himself or another in the
 5             near future; or
 6                  (ii)  who  is  mentally  ill and who because of
 7             his illness is  unable  to  provide  for  his  basic
 8             physical  needs  so as to guard himself from serious
 9             harm.
10             (B)  "In  need  of  mental  health  services  on  an
11        inpatient basis" means: a defendant who  has  been  found
12        not  guilty  by  reason of insanity who is not subject to
13        involuntary admission but who due to  mental  illness  is
14        reasonably expected to inflict serious physical harm upon
15        himself  or  another and who would benefit from inpatient
16        care or is in need of inpatient care.
17             (C)  "In  need  of  mental  health  services  on  an
18        outpatient basis" means: a defendant who has  been  found
19        not  guilty  by  reason of insanity who is not subject to
20        involuntary  admission  or  in  need  of  mental   health
21        services  on  an  inpatient  basis,  but  is  in  need of
22        outpatient  care,  drug  and/or  alcohol   rehabilitation
23        programs,   community  adjustment  programs,  individual,
24        group, or family therapy, or chemotherapy.
25             (D)  "Conditional Release" means: the  release  from
26        either the custody of the Department of Human Services or
27        the  custody  of the Court of a person who has been found
28        not guilty by reason of insanity under such conditions as
29        the  Court  may  impose  which  reasonably   assure   the
30        defendant's   satisfactory   progress   in  treatment  or
31        habilitation and the safety of the defendant and  others.
32        The  Court shall consider such terms and conditions which
33        may include, but need not be limited to, outpatient care,
34        alcoholic and  drug  rehabilitation  programs,  community
 
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 1        adjustment   programs,  individual,  group,  family,  and
 2        chemotherapy, random testing to  ensure  the  defendant's
 3        timely  and continuous taking of any medicines prescribed
 4        to control or manage his or her conduct or mental  state,
 5        and periodic checks with the legal authorities and/or the
 6        Department  of  Human Services.  The Court may order as a
 7        condition of conditional release that the  defendant  not
 8        contact  the  victim  of the offense that resulted in the
 9        finding or verdict of not guilty by reason of insanity or
10        any other person.  The Court may order the Department  of
11        Human   Services   to   provide   care   to   any  person
12        conditionally   released   under   this   Section.    The
13        Department may contract with any public or private agency
14        in order to discharge any responsibilities imposed  under
15        this Section.  The Department shall monitor the provision
16        of  services to persons conditionally released under this
17        Section  and  provide  periodic  reports  to  the   Court
18        concerning   the   services  and  the  condition  of  the
19        defendant.  Whenever a person is  conditionally  released
20        pursuant  to  this  Section, the State's Attorney for the
21        county in which the hearing is held  shall  designate  in
22        writing  the  name,  telephone  number,  and address of a
23        person employed by him or her who shall  be  notified  in
24        the  event  that  either  the  reporting  agency  or  the
25        Department  decides  that  the conditional release of the
26        defendant should  be  revoked  or  modified  pursuant  to
27        subsection  (i)  of  this Section  The person or facility
28        rendering  the  outpatient  care  shall  be  required  to
29        periodically report to the Court on the progress  of  the
30        defendant. Such conditional release shall be for a period
31        of  five years. However, unless the defendant, the person
32        or facility rendering the treatment, therapy, program  or
33        outpatient  care, the Department, or the State's Attorney
34        may petition petitions the Court for an extension of  the
 
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 1        conditional  release  period  for  an  additional 5 three
 2        years. Upon receipt of such a petition, the  Court  shall
 3        hold  a  hearing  consistent  with the provisions of this
 4        paragraph (a) and paragraph (f) of  this  Section,  shall
 5        determine  whether  the  defendant  should continue to be
 6        subject to the terms of conditional  release,  and  shall
 7        enter an order either extending the defendant's period of
 8        conditional  release  for  an a single additional 5 three
 9        year period or discharging  the  defendant.    Additional
10        5-year  periods  of  conditional  release  may be ordered
11        following  a  hearing  as  provided  in   this   Section.
12        However,  in  no  event  shall  the defendant's period of
13        conditional release continue beyond the maximum period of
14        commitment ordered by the Court pursuant to paragraph (b)
15        of this Section exceed eight years. These provisions  for
16        extension  of  conditional  release  shall  only apply to
17        defendants  conditionally  released  on  or   after   the
18        effective date of this amendatory Act of the 93rd General
19        Assembly  July  1, 1979. However the extension provisions
20        of Public Act 83-1449 apply only  to  defendants  charged
21        with a forcible felony.
22             (E)  "Facility  director" means the chief officer of
23        a mental health or developmental disabilities facility or
24        his or her designee or the supervisor  of  a  program  of
25        treatment   or  habilitation  or  his  or  her  designee.
26        "Designee"   may   include    a    physician,    clinical
27        psychologist, social worker, or nurse.
28        (b)  If   the   Court  finds  the  defendant  subject  to
29    involuntary admission or in need of mental health services on
30    an inpatient basis, the admission, detention, care, treatment
31    or  habilitation,  treatment   plans,   review   proceedings,
32    including  review  of  treatment  and  treatment  plans,  and
33    discharge  of  the  defendant after such order shall be under
34    the Mental Health and Developmental Disabilities Code, except
 
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 1    that the initial order for admission of a defendant acquitted
 2    of a felony by reason of insanity shall be for an  indefinite
 3    period  of  time.  Such period of commitment shall not exceed
 4    the maximum length of time that the defendant would have been
 5    required to serve, less credit for good behavior as  provided
 6    in  Section  5-4-1 of the Unified Code of Corrections, before
 7    becoming eligible for release had he been  convicted  of  and
 8    received  the maximum sentence for the most serious crime for
 9    which he has been acquitted by reason of insanity. The  Court
10    shall  determine  the  maximum  period  of  commitment  by an
11    appropriate order. During  this period of time, the defendant
12    shall not be permitted to be in the community in any  manner,
13    including  but not limited to off-grounds privileges, with or
14    without escort  by  personnel  of  the  Department  of  Human
15    Services,  unsupervised  on-grounds  privileges, discharge or
16    conditional  or  temporary  release,  except  by  a  plan  as
17    provided in this Section.  In no event  shall  a  defendant's
18    continued unauthorized absence be a basis for discharge.  Not
19    more   than  30  days  after  admission  and  every  60  days
20    thereafter so long as the initial order  remains  in  effect,
21    the  facility  director shall file a treatment plan report in
22    writing with the court and forward a copy  of  the  treatment
23    plan  report to the clerk of the court, the State's Attorney,
24    and the defendant's attorney, if the defendant is represented
25    by counsel, or to a person authorized by the defendant  under
26    the    Mental    Health    and   Developmental   Disabilities
27    Confidentiality Act to be sent a copy  of  the  report.   The
28    report  shall  include an opinion as to whether the defendant
29    is currently subject to involuntary  admission,  in  need  of
30    mental  health  services on an inpatient basis, or in need of
31    mental health services on an outpatient  basis.   The  report
32    shall also summarize the basis for those findings and provide
33    a  current  summary of the following items from the treatment
34    plan: (1) an assessment of the defendant's  treatment  needs,
 
SB1342 Enrolled            -7-       LRB093 04985 RLC 09927 b
 1    (2)  a description of the services recommended for treatment,
 2    (3) the goals of each type of  element  of  service,  (4)  an
 3    anticipated  timetable  for  the accomplishment of the goals,
 4    and  (5)  a  designation  of   the   qualified   professional
 5    responsible  for  the  implementation of the plan. The report
 6    may  also   include   unsupervised   on-grounds   privileges,
 7    off-grounds  privileges  (with or without escort by personnel
 8    of  the  Department  of  Human  Services),  home  visits  and
 9    participation  in  work  programs,  but   only   where   such
10    privileges  have been approved by specific court order, which
11    order may include such conditions on  the  defendant  as  the
12    Court may deem appropriate and necessary to reasonably assure
13    the  defendant's  satisfactory  progress in treatment and the
14    safety of the defendant and others.
15        (c)  Every defendant acquitted of a felony by  reason  of
16    insanity  and subsequently found to be subject to involuntary
17    admission or in need  of  mental  health  services  shall  be
18    represented  by counsel in all proceedings under this Section
19    and under the Mental Health  and  Developmental  Disabilities
20    Code.
21             (1)  The  Court  shall appoint as counsel the public
22        defender or an attorney licensed by this State.
23             (2)  Upon  filing  with  the  Court  of  a  verified
24        statement of  legal  services  rendered  by  the  private
25        attorney  appointed  pursuant  to  paragraph  (1) of this
26        subsection, the Court shall determine  a  reasonable  fee
27        for such services.  If the defendant is unable to pay the
28        fee, the Court shall enter an order upon the State to pay
29        the  entire fee or such amount as the defendant is unable
30        to pay from funds appropriated by  the  General  Assembly
31        for that purpose.
32        (d)  When the facility director determines that:
33             (1)  the   defendant   is   no   longer  subject  to
34        involuntary  admission  or  in  need  of  mental   health
 
SB1342 Enrolled            -8-       LRB093 04985 RLC 09927 b
 1        services on an inpatient basis; and
 2             (2)  the  defendant  may  be  conditionally released
 3        because he or she is  still  in  need  of  mental  health
 4        services  or  that the defendant may be discharged as not
 5        in need of any mental health services; or
 6             (3)  the defendant no longer requires placement in a
 7        secure setting;
 8    the facility director shall give written notice to the Court,
 9    State's Attorney and defense attorney. Such notice shall  set
10    forth  in  detail  the  basis  for  the recommendation of the
11    facility director, and specify clearly  the  recommendations,
12    if  any,  of  the  facility  director, concerning conditional
13    release.  Within 30 days of the notification by the  facility
14    director, the Court shall set a hearing and make a finding as
15    to whether the defendant is:
16             (i)  (blank) subject to involuntary admission; or
17             (ii)  in  need of mental health services in the form
18        of inpatient care; or
19             (iii)  in need of mental  health  services  but  not
20        subject to involuntary admission or inpatient care; or
21             (iv)  no  longer  in need of mental health services;
22        or
23             (v)  no  longer  requires  placement  in  a   secure
24        setting.
25        Upon  finding  by  the  Court,  the Court shall enter its
26    findings and such appropriate order as provided in subsection
27    (a) of this Section.
28        (e)  A defendant admitted pursuant to  this  Section,  or
29    any  person on his behalf, may  file a petition for treatment
30    plan review, transfer to  a  non-secure  setting  within  the
31    Department  of  Human  Services  or  discharge or conditional
32    release under the standards of  this  Section  in  the  Court
33    which  rendered  the verdict.  Upon receipt of a petition for
34    treatment plan review, transfer to a  non-secure  setting  or
 
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 1    discharge  or  conditional  release,  the  Court  shall set a
 2    hearing to be held  within  120  days.   Thereafter,  no  new
 3    petition  may  be filed for 180 120 days without leave of the
 4    Court.
 5        (f)  The Court shall direct that notice of the  time  and
 6    place  of  the  hearing  be  served  upon  the defendant, the
 7    facility director, the State's Attorney, and the  defendant's
 8    attorney.  If requested by either the State or the defense or
 9    if  the  Court  feels  it  is   appropriate,   an   impartial
10    examination  of  the  defendant by a psychiatrist or clinical
11    psychologist as defined in Section 1-103 of the Mental Health
12    and Developmental Disabilities Code who is not in the  employ
13    of the Department of Human Services shall be ordered, and the
14    report considered at the time of the hearing.
15        (g)  The  findings  of  the Court shall be established by
16    clear and convincing evidence.  The burden of proof  and  the
17    burden  of  going  forth  with  the  evidence  rest  with the
18    defendant or any person on  the  defendant's  behalf  when  a
19    hearing is held to review a petition filed by or on behalf of
20    the defendant.  The evidence shall be presented in open Court
21    with  the  right of confrontation and cross-examination. Such
22    evidence may include, but is not limited to:
23             (1)  whether  the  defendant  appreciates  the  harm
24        caused by the defendant to others and  the  community  by
25        his  or her prior conduct that resulted in the finding of
26        not guilty by reason of insanity;
27             (2)  Whether the person appreciates the  criminality
28        of  conduct  similiar  to the conduct for which he or she
29        was originally charged in this matter;
30             (3)  the current state of the defendant's illness;
31             (4)  what, if  any,  medications  the  defendant  is
32        taking to control his or her mental illness;
33             (5)  what, if any, adverse physical side effects the
34        medication has on the defendant;
 
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 1             (6)  the  length  of  time  it  would  take  for the
 2        defendant's mental health to deteriorate if the defendant
 3        stopped taking prescribed medication;
 4             (7)  the  defendant's  history  or   potential   for
 5        alcohol and drug abuse;
 6             (8)  the defendant's past criminal history;
 7             (9)  any  specialized  physical  or medical needs of
 8        the defendant;
 9             (10)  any  family   participation   or   involvement
10        expected  upon  release  and  what is the willingness and
11        ability of the family to participate or be involved;
12             (11)  the defendant's potential to be  a  danger  to
13        himself, herself, or others; and
14             (12)  any  other  factor  or factors the Court deems
15        appropriate.
16        (h)  If the Court finds, consistent with  the  provisions
17    of  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 of 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  5  five
26    years  as provided in paragraph (1) (D) of subsection (a) and
27    shall be subject  to  later  modification  by  the  Court  as
28    provided  by this Section. If the Court finds consistent with
29    the provisions in this Section that the defendant is  subject
30    to involuntary admission or in need of mental health services
31    on  an  inpatient basis, it shall order the facility director
32    not to discharge or release the defendant in accordance  with
33    paragraph (b) of this Section.
34        (i)  If  within the period of the defendant's conditional
 
SB1342 Enrolled            -11-      LRB093 04985 RLC 09927 b
 1    release the State's Attorney determines  that  the  defendant
 2    has  not  fulfilled the conditions of his or her release, the
 3    State's Attorney may petition the Court to revoke  or  modify
 4    the conditional release of the defendant.  Upon the filing of
 5    such petition the defendant may be remanded to the custody of
 6    the  Department,  or  to  any  other  mental  health facility
 7    designated by the Department, pending the resolution  of  the
 8    petition.    Nothing   in  this  Section  shall  prevent  the
 9    emergency admission of a defendant pursuant to Article VI  of
10    Chapter   III   of   the   Mental  Health  and  Developmental
11    Disabilities Code or the voluntary admission of the defendant
12    pursuant to Article IV of Chapter III of  the  Mental  Health
13    and Developmental Disabilities Code. If the Court determines,
14    after  hearing evidence, that the defendant has not fulfilled
15    the conditions of release, the Court shall order a hearing to
16    be held consistent with the provisions of paragraph  (f)  and
17    (g) of this Section. At such hearing, if the Court finds that
18    the  defendant is subject to involuntary admission or in need
19    of mental health services on an  inpatient  basis,  it  shall
20    enter  an  order  remanding  him  or her to the Department of
21    Human  Services  or  other  facility.  If  the  defendant  is
22    remanded to the Department of Human Services, he or she shall
23    be placed in a secure setting  unless  the  Court  determines
24    that  there are compelling reasons that such placement is not
25    necessary. If the Court finds that the  defendant   continues
26    to  be  in  need  of  mental  health  services  but not on an
27    inpatient basis, it may modify the conditions of the original
28    release  in  order  to  reasonably  assure  the   defendant's
29    satisfactory  progress in treatment and his or her safety and
30    the  safety  of  others  in  accordance  with  the  standards
31    established in paragraph (1) (D) of  subsection  (a).  In  no
32    event  shall  such  conditional  release be longer than eight
33    years. Nothing in this Section shall limit a Court's contempt
34    powers or any other powers of a Court.
 
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 1        (j)  An order of admission under this  Section  does  not
 2    affect the remedy of habeas corpus.
 3        (k)  In  the event of a conflict between this Section and
 4    the Mental Health and Developmental Disabilities Code or  the
 5    Mental  Health and Developmental Disabilities Confidentiality
 6    Act, the provisions of this Section shall govern.
 7        (l)  This amendatory Act shall apply to all  persons  who
 8    have  been found not guilty by reason of insanity and who are
 9    presently committed to the Department of  Mental  Health  and
10    Developmental  Disabilities  (now  the  Department  of  Human
11    Services).
12        (m)  The  Clerk of the Court shall, after the entry of an
13    order of transfer to a non-secure setting of  the  Department
14    of  Human  Services  or  discharge  or  conditional  release,
15    transmit  a  certified copy of the order to the Department of
16    Human Services, and the sheriff of the county from which  the
17    defendant  was  admitted.   In  cases where the arrest of the
18    defendant or the commission of the offense took place in  any
19    municipality  with  a population of more than 25,000 persons,
20    the Clerk of the Court shall also transmit a  certified  copy
21    of  the  order  of  discharge  or  conditional release to the
22    proper law enforcement agency for said municipality  provided
23    the municipality has requested such notice in writing.
24    (Source:  P.A.  90-105,  eff.  7-11-97; 90-593, eff. 6-19-98;
25    91-536, eff. 1-1-00; 91-770, eff. 1-1-01.)

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