Full Text of HB4807 96th General Assembly
HB4807enr 96TH GENERAL ASSEMBLY
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HB4807 Enrolled |
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LRB096 16403 RLC 31669 b |
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| AN ACT concerning criminal law.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Unified Code of Corrections is amended by | 5 |
| changing Section 5-2-4 as follows:
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| (730 ILCS 5/5-2-4) (from Ch. 38, par. 1005-2-4)
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| Sec. 5-2-4. Proceedings after Acquittal by Reason of | 8 |
| Insanity.
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| (a) After a finding or verdict of not guilty by reason of | 10 |
| insanity
under Sections 104-25, 115-3 or 115-4 of the Code of | 11 |
| Criminal Procedure
of 1963, the defendant shall be ordered to | 12 |
| the Department of Human Services for
an evaluation as to
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| whether he is in need of mental health
services. The order
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| shall specify whether the evaluation shall be conducted on an | 15 |
| inpatient or
outpatient basis. If the evaluation is to be | 16 |
| conducted on an inpatient
basis, the defendant shall be placed | 17 |
| in a secure setting unless the Court
determines that there are | 18 |
| compelling reasons why such placement is not
necessary. With | 19 |
| the court order for evaluation shall be sent a copy of the | 20 |
| arrest report, criminal charges, arrest record, jail record, | 21 |
| and any report prepared under Section 115-6 of the Code of | 22 |
| Criminal Procedure of 1963 , and any victim impact statement | 23 |
| prepared under Section 6 of the Rights of Crime Victims and |
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| Witnesses Act .
After the evaluation and during the period of | 2 |
| time required to
determine the appropriate placement, the | 3 |
| defendant shall
remain in jail.
Individualized placement | 4 |
| evaluations by the Department of Human Services determine the | 5 |
| most appropriate setting for forensic treatment based upon a | 6 |
| number of factors including mental health diagnosis, proximity | 7 |
| to surviving victims, security need, age, gender, and proximity | 8 |
| to family. Upon completion of the placement process the sheriff | 9 |
| shall be notified and
shall transport the defendant to the | 10 |
| designated facility.
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| The Department shall provide the Court with a report of its | 12 |
| evaluation
within 30 days of the date of this order. The Court | 13 |
| shall hold a hearing
as provided under the Mental Health and | 14 |
| Developmental Disabilities Code to
determine if the individual | 15 |
| is:
(a)
in need of mental health services on an inpatient | 16 |
| basis; (b) in
need of
mental health services on an outpatient | 17 |
| basis; (c) a person not in
need of
mental health services. The | 18 |
| Court shall enter its findings.
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| If the defendant is found to be in
need
of mental health | 20 |
| services on an inpatient care basis, the Court shall order the
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| defendant to the Department of Human Services.
The defendant | 22 |
| shall be placed in a secure setting unless the Court determines
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| that there are compelling reasons why such placement is not | 24 |
| necessary. Such
defendants placed in a secure setting shall not | 25 |
| be permitted outside the
facility's housing unit unless | 26 |
| escorted or accompanied by personnel of the
Department of Human |
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| Services or with the prior approval of the Court for
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| unsupervised
on-grounds privileges as provided
herein.
Any | 3 |
| defendant placed in a secure setting pursuant to this Section,
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| transported to court hearings or other necessary appointments
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| off facility grounds
by personnel of
the Department of Human | 6 |
| Services, shall be
placed in security devices
or otherwise | 7 |
| secured during the period of transportation to assure
secure | 8 |
| transport of the defendant and the safety of Department
of | 9 |
| Human Services personnel and others. These security measures
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| shall not constitute restraint as defined in the Mental Health | 11 |
| and
Developmental Disabilities Code.
If the defendant is found | 12 |
| to be in need of mental health services,
but not on an | 13 |
| inpatient care basis, the Court shall conditionally release
the | 14 |
| defendant, under such conditions as set forth in this Section | 15 |
| as will
reasonably assure the defendant's satisfactory | 16 |
| progress and participation
in treatment or
rehabilitation and | 17 |
| the safety of the defendant and others. If the
Court
finds the | 18 |
| person not in need of mental health services, then the Court
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| shall order the defendant discharged from custody.
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| (a-1) Definitions. For the purposes of this Section:
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| (A) (Blank).
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| (B) "In need of mental health services on an inpatient | 23 |
| basis" means: a
defendant who has been found not guilty by | 24 |
| reason of insanity but who due to mental illness is
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| reasonably expected to inflict
serious physical harm upon | 26 |
| himself or another and who would benefit from
inpatient |
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| care or is in need of inpatient care.
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| (C) "In need of mental health services on an outpatient | 3 |
| basis" means:
a defendant who has been found not guilty by | 4 |
| reason of insanity who is not in need of mental health | 5 |
| services on
an inpatient basis, but is in need of | 6 |
| outpatient care, drug and/or alcohol
rehabilitation | 7 |
| programs, community adjustment programs, individual, | 8 |
| group,
or family therapy, or chemotherapy.
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| (D) "Conditional Release" means: the release from | 10 |
| either the custody
of the Department of Human Services
or | 11 |
| the custody of the Court of a person who has been found not | 12 |
| guilty by
reason of insanity under such conditions as the | 13 |
| Court may impose which
reasonably assure the defendant's | 14 |
| satisfactory progress in
treatment or habilitation and the | 15 |
| safety of the defendant and others. The
Court shall | 16 |
| consider such terms and conditions which may include, but | 17 |
| need
not be limited to, outpatient care, alcoholic and drug | 18 |
| rehabilitation programs,
community adjustment programs, | 19 |
| individual, group, family, and chemotherapy,
random | 20 |
| testing to ensure the defendant's timely and continuous | 21 |
| taking of any
medicines prescribed
to control or manage his | 22 |
| or her conduct or mental state, and
periodic checks with | 23 |
| the legal authorities and/or the Department of Human
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| Services.
The Court may order as a condition of conditional | 25 |
| release that the
defendant not contact the victim of the | 26 |
| offense that
resulted in the finding or
verdict of not |
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| guilty by reason of insanity or any other person. The Court | 2 |
| may
order the
Department of
Human Services to provide care | 3 |
| to any
person conditionally released under this Section. | 4 |
| The Department may contract
with any public or private | 5 |
| agency in order to discharge any responsibilities
imposed | 6 |
| under this Section. The Department shall monitor the | 7 |
| provision of
services to persons conditionally released | 8 |
| under this Section and provide
periodic reports to the | 9 |
| Court concerning the services and the condition of the
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| defendant.
Whenever a person is conditionally released | 11 |
| pursuant to this Section, the
State's Attorney for the | 12 |
| county in which the hearing is held shall designate in
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| writing the name, telephone number, and address of a person | 14 |
| employed by him or
her who
shall be notified in the event | 15 |
| that either the reporting agency or the
Department decides | 16 |
| that the conditional release of the defendant should be
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| revoked or modified pursuant to subsection (i) of this | 18 |
| Section. Such
conditional release shall be for
a period of | 19 |
| five years. However, the defendant, the person or
facility
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| rendering the treatment, therapy, program or outpatient | 21 |
| care, the
Department, or the
State's Attorney may petition | 22 |
| the Court for an extension of
the conditional
release | 23 |
| period for an additional 5 years. Upon receipt of such a
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| petition, the Court shall hold a hearing consistent with | 25 |
| the provisions of
paragraph (a), this paragraph (a-1),
and | 26 |
| paragraph (f) of this Section, shall determine
whether the |
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| defendant should continue to be subject to the terms of
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| conditional release, and shall enter an order either | 3 |
| extending the
defendant's period of conditional release | 4 |
| for an additional
5
year period or discharging the | 5 |
| defendant.
Additional 5-year periods of conditional | 6 |
| release may be ordered following a
hearing as provided in | 7 |
| this Section. However,
in no event shall the defendant's
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| period of conditional release continue beyond the maximum | 9 |
| period of
commitment ordered by the Court pursuant to | 10 |
| paragraph (b) of this Section. These provisions for
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| extension of conditional release shall only apply to | 12 |
| defendants
conditionally released on or after August 8, | 13 |
| 2003. However the extension
provisions of Public Act | 14 |
| 83-1449 apply only to defendants charged
with a forcible | 15 |
| felony.
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| (E) "Facility director" means the chief officer of a | 17 |
| mental health or
developmental disabilities facility or | 18 |
| his or her designee or the supervisor of
a program of | 19 |
| treatment or habilitation or his or her designee. | 20 |
| "Designee" may
include a physician, clinical psychologist, | 21 |
| social worker, nurse, or clinical
professional counselor.
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| (b) If the Court finds the defendant in need of mental | 23 |
| health services on an
inpatient basis, the
admission, | 24 |
| detention, care, treatment or habilitation, treatment plans,
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| review proceedings, including review of treatment and | 26 |
| treatment plans, and
discharge of the defendant after such |
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| order shall be under the
Mental Health and Developmental | 2 |
| Disabilities Code, except that the
initial order for admission | 3 |
| of a defendant acquitted of a felony by
reason of insanity | 4 |
| shall be for an indefinite period of time. Such period
of | 5 |
| commitment shall not exceed the maximum
length of time that the | 6 |
| defendant would have been required to serve,
less credit for | 7 |
| good behavior as provided in Section 5-4-1 of the Unified
Code | 8 |
| of Corrections, before becoming eligible for
release had
he | 9 |
| been convicted of and received the maximum sentence for the | 10 |
| most
serious crime for which he has been acquitted by reason of | 11 |
| insanity. The
Court shall determine the maximum period of | 12 |
| commitment by an appropriate
order. During this period of time, | 13 |
| the defendant shall not be permitted
to be in the community in | 14 |
| any manner, including but not limited to off-grounds
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| privileges, with or without escort by personnel of the | 16 |
| Department of Human
Services, unsupervised on-grounds | 17 |
| privileges,
discharge or conditional or temporary release, | 18 |
| except by a plan as provided in
this Section. In no event shall | 19 |
| a defendant's continued unauthorized
absence be a basis for | 20 |
| discharge. Not more than 30 days after admission
and every 60 | 21 |
| days thereafter so long as the initial order
remains in effect, | 22 |
| the facility director shall file a treatment plan report
in | 23 |
| writing with the court
and forward a copy of the treatment plan | 24 |
| report to the clerk of the
court, the State's Attorney, and the | 25 |
| defendant's attorney, if the defendant is
represented by | 26 |
| counsel,
or to a person authorized by
the defendant under the
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| Mental Health and Developmental Disabilities Confidentiality | 2 |
| Act to be sent a
copy of the report. The report shall include | 3 |
| an opinion
as to whether the
defendant is currently in need of | 4 |
| mental
health services on an inpatient basis or in need of | 5 |
| mental health services
on
an outpatient basis. The report shall | 6 |
| also summarize the basis for those
findings and provide a | 7 |
| current summary of the following items from the
treatment plan: | 8 |
| (1) an assessment of the defendant's treatment needs, (2) a
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| description of the services recommended for treatment, (3) the | 10 |
| goals of each
type of element of service, (4) an anticipated | 11 |
| timetable for the accomplishment
of the goals, and (5) a | 12 |
| designation of the qualified professional responsible
for the | 13 |
| implementation of the plan.
The report may also include | 14 |
| unsupervised on-grounds
privileges, off-grounds privileges | 15 |
| (with or without escort by personnel of the
Department of Human | 16 |
| Services), home visits and
participation in work
programs, but | 17 |
| only where such privileges have been approved by specific court
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| order, which order may include such conditions on the defendant | 19 |
| as the
Court may deem appropriate and necessary to reasonably | 20 |
| assure the defendant's
satisfactory progress in treatment and | 21 |
| the safety of the defendant and others.
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| (c) Every defendant acquitted of a felony by reason of | 23 |
| insanity and
subsequently found to be in need of
mental health | 24 |
| services shall be represented by counsel in all proceedings | 25 |
| under
this Section and under the Mental Health and | 26 |
| Developmental Disabilities Code.
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LRB096 16403 RLC 31669 b |
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| (1) The Court shall appoint as counsel the public | 2 |
| defender or an
attorney licensed by this State.
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| (2) Upon filing with the Court of a verified statement | 4 |
| of legal
services rendered by the private attorney | 5 |
| appointed pursuant to
paragraph (1) of this subsection, the | 6 |
| Court shall determine a reasonable
fee for such services. | 7 |
| If the defendant is unable to pay the fee, the
Court shall | 8 |
| enter an order upon the State to pay the entire fee or such
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| amount as the defendant is unable to pay from funds | 10 |
| appropriated by the
General Assembly for that purpose.
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| (d) When the facility director determines that:
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| (1) the defendant is no longer
in need of mental health | 13 |
| services on an inpatient basis; and
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| (2) the defendant may be conditionally released | 15 |
| because he
or she is still in need of mental health | 16 |
| services or that the defendant
may be discharged as not in | 17 |
| need of any mental health services; or
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| (3) the defendant no longer requires placement in a | 19 |
| secure setting;
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| the facility director shall give written notice
to the Court, | 21 |
| State's Attorney and defense attorney.
Such notice shall set | 22 |
| forth in detail the basis for the recommendation of
the | 23 |
| facility director, and specify clearly the recommendations, if | 24 |
| any,
of the facility director, concerning conditional release.
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| Any recommendation for conditional release shall include an | 26 |
| evaluation of
the defendant's need for psychotropic |
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| medication, what provisions should be
made, if any, to ensure | 2 |
| that the defendant will continue to receive
psychotropic | 3 |
| medication following discharge, and what provisions should be | 4 |
| made
to assure the safety of the defendant and others in the | 5 |
| event the defendant is
no longer receiving psychotropic | 6 |
| medication.
Within 30 days of
the notification by the facility | 7 |
| director, the Court shall set a hearing and
make a finding as | 8 |
| to whether the defendant is:
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| (i) (blank); or
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| (ii) in need of mental health services in the form of | 11 |
| inpatient care; or
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| (iii) in need of mental health services but not subject | 13 |
| to inpatient care;
or
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| (iv) no longer in need of mental health services; or
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| (v) no longer requires placement in a secure setting.
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| Upon finding by the Court, the Court shall enter its | 17 |
| findings and such
appropriate order as provided in subsections | 18 |
| (a) and (a-1) of this Section.
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| (e) A defendant admitted pursuant to this Section, or any | 20 |
| person on
his behalf, may file a petition for treatment plan | 21 |
| review, transfer to a
non-secure setting within the Department | 22 |
| of Human Services
or discharge or conditional release under the
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| standards of this Section in the Court which rendered the | 24 |
| verdict. Upon
receipt of a petition for treatment plan review, | 25 |
| transfer to a non-secure
setting or discharge or conditional | 26 |
| release, the Court shall set a hearing to
be held within 120 |
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| days. Thereafter, no new petition
may be filed for 180 days
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| without leave of the Court.
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| (f) The Court shall direct that notice of the time and | 4 |
| place of the
hearing be served upon the defendant, the facility | 5 |
| director, the State's
Attorney, and the defendant's attorney. | 6 |
| If requested by either the State or the
defense or if the Court | 7 |
| feels it is appropriate, an impartial examination
of the | 8 |
| defendant by a psychiatrist or clinical psychologist as defined | 9 |
| in
Section 1-103 of the Mental Health and Developmental | 10 |
| Disabilities Code who
is not in the employ of the Department of | 11 |
| Human Services shall be ordered, and
the report considered at
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| the time of the hearing.
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| (g) The findings of the Court shall be established by clear | 14 |
| and
convincing evidence. The burden of proof and the burden of | 15 |
| going forth
with the evidence rest with the defendant or any | 16 |
| person on the defendant's
behalf when a hearing is held to | 17 |
| review
a petition filed by or on
behalf of the defendant. The | 18 |
| evidence shall be presented in open
Court
with the right of | 19 |
| confrontation and cross-examination.
Such evidence may | 20 |
| include, but is not limited to:
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| (1) whether the defendant appreciates the harm caused | 22 |
| by the defendant to
others and the community by his or her | 23 |
| prior
conduct
that resulted in the finding of not guilty by | 24 |
| reason of insanity;
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| (2) Whether the person appreciates the criminality of | 26 |
| conduct similar to
the conduct for which he or she was |
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| originally charged in this matter;
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| (3) the current state of
the defendant's illness;
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| (4) what, if any, medications the defendant is taking | 4 |
| to
control his or her mental illness;
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| (5) what, if any, adverse physical side effects
the | 6 |
| medication has on the defendant;
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| (6) the length of time it would take for the | 8 |
| defendant's mental health to
deteriorate
if
the
defendant | 9 |
| stopped taking prescribed medication;
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| (7) the defendant's history or potential for alcohol | 11 |
| and drug abuse;
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| (8) the defendant's past criminal history;
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| (9) any specialized physical or medical needs of the | 14 |
| defendant;
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| (10) any family participation or involvement expected | 16 |
| upon release and
what is the willingness and ability of the | 17 |
| family to participate or be
involved;
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| (11) the defendant's potential to be a danger to | 19 |
| himself, herself, or
others; and
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| (12) any other factor or factors the Court deems | 21 |
| appropriate.
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| (h) Before the court orders that the defendant be | 23 |
| discharged or
conditionally released, it shall order the | 24 |
| facility director to establish a
discharge plan that includes a | 25 |
| plan for the defendant's shelter, support, and
medication. If | 26 |
| appropriate, the court shall order that the facility director
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| establish a program to train the defendant in self-medication | 2 |
| under standards
established by the Department of Human | 3 |
| Services.
If the Court finds, consistent with the provisions of | 4 |
| this Section,
that the defendant is no longer in need of mental
| 5 |
| health services it shall order the facility director to | 6 |
| discharge the
defendant. If the Court finds, consistent with | 7 |
| the provisions of this
Section, that the defendant is in need | 8 |
| of mental
health services, and no longer in need of inpatient | 9 |
| care, it shall order
the facility director to release the | 10 |
| defendant under such conditions as the
Court deems appropriate | 11 |
| and as provided by this Section. Such conditional
release shall | 12 |
| be imposed for a period of 5 years as provided in
paragraph
(D) | 13 |
| of subsection (a-1) and shall be
subject
to later modification | 14 |
| by the Court as provided by this Section. If the
Court finds | 15 |
| consistent with the provisions in this Section that the
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| defendant is in
need of mental health services on an inpatient | 17 |
| basis, it shall order the
facility director not to discharge or | 18 |
| release the defendant in accordance
with paragraph (b) of this | 19 |
| Section.
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| (i) If within the period of the defendant's conditional | 21 |
| release
the State's Attorney determines that the defendant has | 22 |
| not fulfilled the
conditions of his or her release, the State's | 23 |
| Attorney may petition the
Court
to
revoke or modify the | 24 |
| conditional release of the defendant. Upon the filing of
such | 25 |
| petition the defendant may be remanded to the custody of the | 26 |
| Department,
or to any other mental health facility designated |
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| by the Department, pending
the resolution of the petition. | 2 |
| Nothing in this Section shall prevent the
emergency admission | 3 |
| of a defendant pursuant to Article VI of Chapter III of the
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| Mental Health
and Developmental Disabilities Code or the | 5 |
| voluntary admission of the defendant
pursuant to Article IV of | 6 |
| Chapter III of the Mental Health and Developmental
Disabilities
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| Code. If
the Court determines, after hearing evidence, that the | 8 |
| defendant has
not fulfilled the conditions of release, the | 9 |
| Court shall order a hearing
to be held consistent with the | 10 |
| provisions of paragraph (f) and (g) of this
Section. At such | 11 |
| hearing, if the Court finds that the defendant is in need of | 12 |
| mental health services on an inpatient
basis, it shall enter an | 13 |
| order remanding him or her to the Department of
Human Services | 14 |
| or other
facility. If the defendant is remanded to the | 15 |
| Department of Human Services, he
or she shall be placed in
a | 16 |
| secure setting unless the Court
determines that there are | 17 |
| compelling reasons that such placement is not
necessary. If the
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| Court finds that the defendant continues to be in need of | 19 |
| mental health
services but not on an inpatient basis, it may | 20 |
| modify the conditions of
the original release in order to | 21 |
| reasonably assure the defendant's satisfactory
progress in | 22 |
| treatment and his or her safety and the safety of others in
| 23 |
| accordance with the standards established in paragraph (D) of | 24 |
| subsection (a-1). Nothing in
this Section shall limit a Court's | 25 |
| contempt powers or any other powers of a
Court.
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| (j) An order of admission under this Section does not |
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| affect the
remedy of habeas corpus.
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| (k) In the event of a conflict between this Section and the | 3 |
| Mental Health
and Developmental Disabilities Code or the Mental | 4 |
| Health and Developmental
Disabilities Confidentiality Act, the | 5 |
| provisions of this Section shall govern.
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| (l) This amendatory Act shall apply to all persons who have | 7 |
| been found
not guilty by reason of insanity and who are | 8 |
| presently committed to the
Department of Mental Health and | 9 |
| Developmental Disabilities (now the
Department of Human | 10 |
| Services).
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| (m) The Clerk of the Court shall, after the entry of an | 12 |
| order of transfer
to a non-secure setting of the Department of | 13 |
| Human Services or discharge or
conditional release, transmit
a | 14 |
| certified
copy of the order to the Department of Human | 15 |
| Services, and the sheriff of the
county from which the
| 16 |
| defendant was
admitted.
The Clerk of the Court shall also | 17 |
| transmit a certified copy of the order of
discharge or | 18 |
| conditional release to the Illinois Department of State Police, | 19 |
| to
the proper law enforcement agency for the municipality
where | 20 |
| the offense took
place, and to the sheriff of the county into | 21 |
| which the defendant is
conditionally discharged. The Illinois | 22 |
| Department of State Police shall
maintain a
centralized record | 23 |
| of discharged or conditionally released defendants while
they | 24 |
| are under court supervision for access and use of appropriate | 25 |
| law
enforcement agencies.
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| (Source: P.A. 95-296, eff. 8-20-07; 95-331, eff. 8-21-07.)
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| Section 99. Effective date. This Act takes effect upon | 2 |
| becoming law.
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