Illinois General Assembly - Full Text of SB1342
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Full Text of SB1342  93rd General Assembly

SB1342sam002 93rd General Assembly


093_SB1342sam002

 










                                     LRB093 04985 RLC 13455 a

 1                    AMENDMENT TO SENATE BILL 1342

 2        AMENDMENT NO.     .  Amend Senate Bill 1342, AS  AMENDED,
 3    by  replacing  everything  after the enacting clause with the
 4    following:

 5        "Section 5.  The Unified Code of Corrections  is  amended
 6    by changing Section 5-2-4 as follows:

 7        (730 ILCS 5/5-2-4) (from Ch. 38, par. 1005-2-4)
 8        Sec.  5-2-4.  Proceedings  after  Acquittal  by Reason of
 9    Insanity.
10        (a)  After a finding or verdict of not guilty  by  reason
11    of insanity under Sections 104-25, 115-3 or 115-4 of The Code
12    of Criminal Procedure of 1963, the defendant shall be ordered
13    to  the  Department of Human Services for an evaluation as to
14    whether he is subject to involuntary admission or in need  of
15    mental  health services.  The order shall specify whether the
16    evaluation shall be conducted on an inpatient  or  outpatient
17    basis.  If  the evaluation is to be conducted on an inpatient
18    basis, the defendant shall be  placed  in  a  secure  setting
19    unless the Court determines that there are compelling reasons
20    why  such  placement  is  not  necessary.  If the defendant's
21    conduct that was charged involved a first degree  murder,  an
22    attempt  to  commit  first  degree murder, or a second degree
 
                            -2-      LRB093 04985 RLC 13455 a
 1    murder, then the court shall order inpatient treatment. After
 2    the evaluation and during the  period  of  time  required  to
 3    determine  the  appropriate  placement,  the  defendant shall
 4    remain in jail. Upon completion of the placement  process the
 5    sheriff shall be notified and shall transport  the  defendant
 6    to the designated facility.
 7        The  Department  shall provide the Court with a report of
 8    its evaluation within 30 days of the date of this order.  The
 9    Court shall hold a  hearing  as  provided  under  the  Mental
10    Health  and  Developmental  Disabilities Code to determine if
11    the individual is: (a) subject to involuntary admission;  (b)
12    in  need of mental health services on an inpatient basis; (c)
13    in need of mental health services on an outpatient basis; (d)
14    a person not in need of mental health  services.   The  Court
15    shall enter its findings.
16        If  the  defendant  is found to be subject to involuntary
17    admission  or  in  need  of  mental  health  services  on  an
18    inpatient care basis, the Court shall order the defendant  to
19    the  Department  of  Human  Services.  The defendant shall be
20    placed in a secure setting unless the Court  determines  that
21    there  are  compelling  reasons  why  such  placement  is not
22    necessary. Such defendants placed in a secure  setting  shall
23    not  be  permitted outside the facility's housing unit unless
24    escorted or accompanied by personnel  of  the  Department  of
25    Human  Services  or  with the prior approval of the Court for
26    unsupervised on-grounds privileges as  provided  herein.  Any
27    defendant  placed  in  a  secure  setting  pursuant  to  this
28    Section,  transported  to  court  hearings or other necessary
29    appointments  off  facility  grounds  by  personnel  of   the
30    Department of Human Services, shall may be placed in security
31    devices   or   otherwise   secured   during   the  period  of
32    transportation to assure secure transport  of  the  defendant
33    and  the safety of Department of Human Services personnel and
34    others.   These  security  measures  shall   not   constitute
 
                            -3-      LRB093 04985 RLC 13455 a
 1    restraint  as  defined in the Mental Health and Developmental
 2    Disabilities Code. If the defendant is found to be in need of
 3    mental health services, but not on an inpatient  care  basis,
 4    the  Court  shall  conditionally release the defendant, under
 5    such  conditions  as  set  forth  in  this  Section  as  will
 6    reasonably assure the defendant's satisfactory  progress  and
 7    participation  in  treatment or rehabilitation and the safety
 8    of the defendant and or  others.   If  the  Court  finds  the
 9    person  not in need of mental health services, then the Court
10    shall order the defendant discharged from custody.
11        (1)  Definitions:  For the purposes of this Section:
12             (A)  "Subject to involuntary  admission"  means:   a
13        defendant   has  been  found  not  guilty  by  reason  of
14        insanity; and
15                  (i)  who is mentally ill and who because of his
16             mental illness is  reasonably  expected  to  inflict
17             serious physical harm upon himself or another in the
18             near future; or
19                  (ii)  who  is  mentally  ill and who because of
20             his illness is  unable  to  provide  for  his  basic
21             physical  needs  so as to guard himself from serious
22             harm.
23             (B)  "In  need  of  mental  health  services  on  an
24        inpatient basis" means: a defendant who  has  been  found
25        not  guilty  by  reason of insanity who is not subject to
26        involuntary admission but who is reasonably  expected  to
27        inflict serious physical harm upon himself or another and
28        who  would  benefit  from inpatient care or is in need of
29        inpatient care. It also includes a person  whose  conduct
30        for  which  a  disposition under this Section was ordered
31        involved a first degree  murder,  an  attempt  to  commit
32        first degree murder, or a second degree murder.
33             (C)  "In  need  of  mental  health  services  on  an
34        outpatient  basis"  means: a defendant who has been found
 
                            -4-      LRB093 04985 RLC 13455 a
 1        not guilty by reason of insanity who is  not  subject  to
 2        involuntary   admission  or  in  need  of  mental  health
 3        services on  an  inpatient  basis,  but  is  in  need  of
 4        outpatient   care,  drug  and/or  alcohol  rehabilitation
 5        programs,  community  adjustment  programs,   individual,
 6        group, or family therapy, or chemotherapy.
 7             (D)  "Conditional  Release"  means: the release from
 8        either the custody of the Department of Human Services or
 9        the custody of the Court of a person who has  been  found
10        not guilty by reason of insanity under such conditions as
11        the   Court   may  impose  which  reasonably  assure  the
12        defendant's  satisfactory  progress   in   treatment   or
13        habilitation  and the safety of the defendant and others.
14        The Court shall consider such terms and conditions  which
15        may include, but need not be limited to, outpatient care,
16        alcoholic  and  drug  rehabilitation  programs, community
17        adjustment  programs,  individual,  group,  family,   and
18        chemotherapy,  random  testing  to insure the defendant's
19        timely and continuous taking of any medicines  prescribed
20        to  control or manage his or her conduct or mental state,
21        periodic checks with the  legal  authorities  and/or  the
22        Department   of   Human   Services.  The  report  of  the
23        evaluation as to whether  the  defendant  is  subject  to
24        involuntary   admission  or  in  need  of  mental  health
25        services, including any  conditions  or  recommendations,
26        shall  be  in  writing and submitted to the court and the
27        State at least 30 days prior to  any  hearing  to  insure
28        proper  input  from the State's Attorney of record in the
29        case and consideration by  the  court.    The  person  or
30        facility  rendering the outpatient care shall be required
31        to submit written  reports  every  90  days  periodically
32        report to the Court on the progress of the defendant with
33        a  copy provided to the State's Attorney of record in the
34        case. Such conditional release shall be for a  period  of
 
                            -5-      LRB093 04985 RLC 13455 a
 1        10  five  years,  unless  the  defendant,  the  person or
 2        facility rendering the  treatment,  therapy,  program  or
 3        outpatient  care,  or  the State's Attorney petitions the
 4        Court for an extension of the conditional release  period
 5        for  an  additional 5 three years. Upon receipt of such a
 6        petition, the Court shall hold a hearing consistent  with
 7        the provisions of this paragraph (a) and paragraph (f) of
 8        this  Section,  shall  determine  whether  the  defendant
 9        should continue to be subject to the terms of conditional
10        release,  and  shall  enter an order either extending the
11        defendant's period of conditional release  for  a  single
12        additional   5  three  year  period  or  discharging  the
13        defendant. In no event shall the  defendant's  period  of
14        conditional   release   exceed   15  eight  years.  These
15        provisions for extension  of  conditional  release  shall
16        only  apply  to  defendants  conditionally released on or
17        after July 1, 1979. However the extension  provisions  of
18        Public  Act 83-1449 apply only to defendants charged with
19        a forcible felony.
20             (E)  "Facility director" means the chief officer  of
21        a mental health or developmental disabilities facility or
22        his  or  her  designee  or the supervisor of a program of
23        treatment  or  habilitation  or  his  or  her   designee.
24        "Designee"    may    include    a   physician,   clinical
25        psychologist, social worker, or nurse.
26        (b)  If  the  Court  finds  the  defendant   subject   to
27    involuntary admission or in need of mental health services on
28    an inpatient basis, the admission, detention, care, treatment
29    or   habilitation,   treatment   plans,  review  proceedings,
30    including  review  of  treatment  and  treatment  plans,  and
31    discharge of the defendant after such order  shall  be  under
32    the Mental Health and Developmental Disabilities Code, except
33    that the initial order for admission of a defendant acquitted
34    of  a felony by reason of insanity shall be for an indefinite
 
                            -6-      LRB093 04985 RLC 13455 a
 1    period of time. Such period of commitment  shall  not  exceed
 2    the maximum length of time that the defendant would have been
 3    required  to  serve,  less credit for good behavior except in
 4    the case of an original charge of  first  degree  murder,  an
 5    attempt  to  commit  first  degree murder, or a second degree
 6    murder, before becoming eligible  for  release  had  he  been
 7    convicted  of  and received the maximum sentence for the most
 8    serious crime for which he has been acquitted  by  reason  of
 9    insanity.  The  Court  shall  determine the maximum period of
10    commitment by an appropriate order. During   this  period  of
11    time,  the  defendant  shall  not  be  permitted to be in the
12    community  in  any  manner,  including  but  not  limited  to
13    off-grounds privileges, with or without escort  by  personnel
14    of  the Department of Human Services, unsupervised on-grounds
15    privileges, discharge or conditional  or  temporary  release,
16    except  by  a  plan as provided in this Section.  In no event
17    shall a defendant's continued unauthorized absence be a basis
18    for discharge.  Not more than 30  days  after  admission  and
19    every  120  60  days  thereafter so long as the initial order
20    remains  in  effect,  the  facility  director  shall  file  a
21    treatment plan report in writing with the court and forward a
22    copy of the treatment plan report to the clerk of the  court,
23    the  State's  Attorney,  and the defendant's attorney, if the
24    defendant is represented  by  counsel,  in  the  case  of  an
25    original  charge of first degree murder, an attempt to commit
26    first degree  murder,  or  a  second  degree  murder  to  the
27    defendant's victim or to a person authorized by the defendant
28    under   the  Mental  Health  and  Developmental  Disabilities
29    Confidentiality Act to be sent a copy  of  the  report.   The
30    report shall include a statement an opinion as to whether the
31    defendant  is  currently subject to involuntary admission, in
32    need of mental health services on an inpatient basis,  or  in
33    need  of  mental health services on an outpatient basis.  The
34    report shall also summarize the basis for those findings  and
 
                            -7-      LRB093 04985 RLC 13455 a
 1    provide  a  current  summary  of the following items from the
 2    treatment  plan:  (1)  an  assessment  of   the   defendant's
 3    treatment   needs,   (2)   a   description  of  the  services
 4    recommended for treatment, (3) the  goals  of  each  type  of
 5    element  of  service,  (4)  an  anticipated timetable for the
 6    accomplishment of the goals, and (5)  a  designation  of  the
 7    qualified  professional responsible for the implementation of
 8    the plan. The report may also include unsupervised on-grounds
 9    privileges, off-grounds privileges (with or without escort by
10    personnel of the Department of Human Services),  home  visits
11    and  participation  in  work  programs,  but  only where such
12    privileges have been approved by specific court order,  which
13    order  may  include  such  conditions on the defendant as the
14    Court may deem appropriate and necessary to reasonably assure
15    the defendant's satisfactory progress in  treatment  and  the
16    safety of the defendant and others.
17        (c)  Every  defendant  acquitted of a felony by reason of
18    insanity and subsequently found to be subject to  involuntary
19    admission  or  in  need  of  mental  health services shall be
20    represented by counsel in all proceedings under this  Section
21    and  under  the  Mental Health and Developmental Disabilities
22    Code.
23             (1)  The Court shall appoint as counsel  the  public
24        defender or an attorney licensed by this State.
25             (2)  Upon  filing  with  the  Court  of  a  verified
26        statement  of  legal  services  rendered  by  the private
27        attorney appointed pursuant  to  paragraph  (1)  of  this
28        subsection,  the  Court  shall determine a reasonable fee
29        for such services.  If the defendant is unable to pay the
30        fee, the Court shall enter an order upon the State to pay
31        the entire fee or such amount as the defendant is  unable
32        to  pay  from  funds appropriated by the General Assembly
33        for that purpose.
34        (d)  When the facility director determines that:
 
                            -8-      LRB093 04985 RLC 13455 a
 1             (1)  the  defendant  is   no   longer   subject   to
 2        involuntary   admission  or  in  need  of  mental  health
 3        services on an inpatient basis; and
 4             (2)  the defendant  may  be  conditionally  released
 5        because  he  or  she  is  still  in need of mental health
 6        services or that the defendant may be discharged  as  not
 7        in need of any mental health services; or
 8             (3)  the defendant no longer requires placement in a
 9        secure setting;
10    the facility director shall give written notice to the Court,
11    State's  Attorney and defense attorney. Such notice shall set
12    forth in detail the  basis  for  the  recommendation  of  the
13    facility  director,  and specify clearly the recommendations,
14    if any, of  the  facility  director,  concerning  conditional
15    release.   Within 30 days of the notification by the facility
16    director, the Court shall set a hearing and make a finding as
17    to whether the defendant is:
18             (i)  subject to involuntary admission; or
19             (ii)  in need of mental health services in the  form
20        of inpatient care; or
21             (iii)  in  need  of  mental  health services but not
22        subject to involuntary admission or inpatient care; or
23             (iv)  no longer in need of mental  health  services;
24        or
25             (v)  no   longer  requires  placement  in  a  secure
26        setting.
27        Upon finding by the Court,  the  Court  shall  enter  its
28    findings and such appropriate order as provided in subsection
29    (a) of this Section.
30        (e)  A  defendant  admitted  pursuant to this Section, or
31    any person on his behalf, may  file a petition for  treatment
32    plan  review,  transfer  to  a  non-secure setting within the
33    Department of Human  Services  or  discharge  or  conditional
34    release  under  the  standards  of  this Section in the Court
 
                            -9-      LRB093 04985 RLC 13455 a
 1    which rendered the verdict.  Upon receipt of a  petition  for
 2    treatment  plan  review,  transfer to a non-secure setting or
 3    discharge or conditional  release,  the  Court  shall  set  a
 4    hearing  to  be held within 365 120 days.  Thereafter, no new
 5    petition may be filed for 365 120 days without leave  of  the
 6    Court.
 7        (f)  The  Court  shall direct that notice of the time and
 8    place of the  hearing  be  served  upon  the  defendant,  the
 9    facility  director, the State's Attorney, and the defendant's
10    attorney. If requested by either the State or the defense  or
11    if   the   Court   feels  it  is  appropriate,  an  impartial
12    examination of the defendant by a  psychiatrist  or  clinical
13    psychologist as defined in Section 1-103 of the Mental Health
14    and  Developmental Disabilities Code who is not in the employ
15    of the Department of Human Services shall be ordered, and the
16    report considered at the time of the hearing.
17        (g)  The findings of the Court shall  be  established  by
18    clear  and  convincing evidence.  The burden of proof and the
19    burden of  going  forth  with  the  evidence  rest  with  the
20    defendant  or  any  person  on  the defendant's behalf when a
21    hearing is held to review a petition filed by or on behalf of
22    the defendant.  The evidence shall be presented in open Court
23    with the right of confrontation and cross-examination. If the
24    defendant has been charged with a  first  degree  murder,  an
25    attempt  to  commit  first  degree murder, or a second degree
26    murder, such evidence shall include, but is not limited to:
27             (1)  whether   the   defendant    appreciates    the
28        criminality  of his or her prior conduct that resulted in
29        the finding of not guilty by reason of insanity;
30             (2)  the current state of the defendant's illness;
31             (3)  what, if  any,  medications  the  defendant  is
32        taking to control his or her mental illness;
33             (4)  what, if any, adverse physical side effects the
34        medication has on the defendant;
 
                            -10-     LRB093 04985 RLC 13455 a
 1             (5)  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             (6)  the  defendant's  history  or   potential   for
 5        alcohol and drug abuse;
 6             (7)  the defendant's past criminal history;
 7             (8)  any  specialized  physical  or medical needs of
 8        the defendant;
 9             (9)  any   family   participation   or   involvement
10        expected upon release;
11             (10)  the defendant's potential to be  a  danger  to
12        himself, herself, or others; and
13             (11)  any  other  factor  or factors the court deems
14        appropriate.
15        (h)  If the Court finds, consistent with  the  provisions
16    of  this  Section, that the defendant is no longer in need of
17    mental health services it shall order the  facility  director
18    to  discharge  the defendant.  If the Court finds, consistent
19    with the provisions of this Section, that the defendant is in
20    need of mental health services, and  no  longer  in  need  of
21    inpatient  care,  it  shall  order  the  facility director to
22    release the defendant under  such  conditions  as  the  Court
23    deems  appropriate  and  as  provided  by  this Section. Such
24    conditional release shall be imposed for a period of 15  five
25    years  and  shall  be  subject   to later modification by the
26    Court as  provided  by  this  Section.  If  the  Court  finds
27    consistent  with  the  provisions  in  this  Section that the
28    defendant is subject to involuntary admission or in  need  of
29    mental  health services on an inpatient basis, it shall order
30    the  facility  director  not  to  discharge  or  release  the
31    defendant in accordance with paragraph (b) of this Section.
32        (i)  If within the period of the defendant's  conditional
33    release,  the  Court determines, after hearing evidence, that
34    the defendant has not fulfilled the  conditions  of  release,
 
                            -11-     LRB093 04985 RLC 13455 a
 1    the  Court  shall  order a hearing to be held consistent with
 2    the provisions of paragraph (f) and (g) of this  Section.  At
 3    such  hearing,  if  the  Court  finds  that the defendant has
 4    violated his  or  her  conditional  discharge,  is  otherwise
 5    subject  to involuntary admission or in need of mental health
 6    services on an inpatient  basis,  it  shall  enter  an  order
 7    remanding  him  or her to the Department of Human Services or
 8    other  facility.  If  the  defendant  is  remanded   to   the
 9    Department  of Human Services, he or she shall be placed in a
10    secure setting unless the Court  determines  that  there  are
11    compelling  reasons  that  such  placement  is not necessary.
12    Notwithstanding any other provision of this Section, a  court
13    may,  in  its  discretion, deny a defendant whose conditional
14    discharge is revoked due to violation of its  conditions  any
15    credit  for any prior time served as involuntary admission or
16    on  conditional  discharge  for  purpose  of  satisfying  the
17    maximum time for involuntary admission under this Act. 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    no  event  shall  such  conditional release be longer than 15
24    eight years. 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
27    affect the remedy of habeas corpus.
28        (k)  In the event of a conflict between this Section  and
29    the  Mental Health and Developmental Disabilities Code or the
30    Mental Health and Developmental Disabilities  Confidentiality
31    Act, the provisions of this Section shall govern.
32        (l)  This  amendatory  Act shall apply to all persons who
33    have been found not guilty by reason of insanity and who  are
34    presently  committed  to  the Department of Mental Health and
 
                            -12-     LRB093 04985 RLC 13455 a
 1    Developmental  Disabilities  (now  the  Department  of  Human
 2    Services).
 3        (m)  The Clerk of the Court shall, after the entry of  an
 4    order  of  transfer to a non-secure setting of the Department
 5    of  Human  Services  or  discharge  or  conditional  release,
 6    transmit a certified copy of the order to the  Department  of
 7    Human  Services, and the sheriff of the county from which the
 8    defendant was admitted.  In cases where  the  arrest  of  the
 9    defendant  or the commission of the offense took place in any
10    municipality with a population of more than  25,000  persons,
11    the  Clerk  of the Court shall also transmit a certified copy
12    of the order of  discharge  or  conditional  release  to  the
13    proper  law enforcement agency for said municipality provided
14    the municipality has requested such notice in writing.
15    (Source: P.A. 90-105, eff.  7-11-97;  90-593,  eff.  6-19-98;
16    91-536, eff. 1-1-00; 91-770, eff. 1-1-01.)".