Full Text of HB2430 98th General Assembly
HB2430ham001 98TH GENERAL ASSEMBLY | Rep. Ann Williams Filed: 3/19/2013
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| 1 | | AMENDMENT TO HOUSE BILL 2430
| 2 | | AMENDMENT NO. ______. Amend House Bill 2430 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Juvenile Court Act of 1987 is amended by | 5 | | adding Part 5.5 to Article V as follows: | 6 | | 705 ILCS 405/Art. V Pt. 5.5 heading new | 7 | | Part 5.5 | 8 | | JUVENILE FITNESS TO STAND TRIAL | 9 | | (705 ILCS 405/5-5.5-101 new) | 10 | | Sec. 5-5.5-101. Presumption of fitness; fitness standard.
| 11 | | A minor is presumed to be fit to stand trial or to plead, and be | 12 | | sentenced. A minor is unfit if, because of his or her mental or | 13 | | physical condition, he or she is unable to understand the | 14 | | nature and purpose of the proceedings against him or her or to | 15 | | assist in his or her defense. For purposes of this Act, "mental |
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| 1 | | condition" includes, but is not limited to, mental illness and | 2 | | developmental disability. A judge, at his or her discretion, | 3 | | may consider developmental immaturity as a factor. | 4 | | (705 ILCS 405/5-5.5-105 new) | 5 | | Sec. 5-5.5-105. Raising issue; burden; fitness motions. | 6 | | (a) The issue of the minor's fitness for trial, to plead, | 7 | | or to be sentenced may be raised by the defense, the State, or | 8 | | the court at any appropriate time before a plea is entered or | 9 | | before, during, or after trial. When a bonafide doubt of the | 10 | | minor's fitness is raised, the court shall order a | 11 | | determination of the issue before proceeding further. | 12 | | (b) Upon request of the minor that a qualified expert be | 13 | | appointed to examine him or her to determine prior to trial if | 14 | | a bonafide doubt as to his or her fitness to stand trial may be | 15 | | raised, the court, in its discretion, may order an appropriate | 16 | | examination. However, no order entered under this subsection | 17 | | shall prevent further proceedings in the case. An expert so | 18 | | appointed shall examine the minor and make a report as provided | 19 | | in Section 5-5.5-125. Upon the filing with the court of a | 20 | | verified statement of services rendered, the court shall enter | 21 | | an order on the county board to pay the expert a reasonable fee | 22 | | stated in the order. | 23 | | (c) When a bonafide doubt of the minor's fitness has been | 24 | | raised, the burden of proving that the minor is fit by a | 25 | | preponderance of the evidence and the burden of going forward |
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| 1 | | with the evidence are on the State. However, the court may call | 2 | | its own witnesses and conduct its own inquiry. | 3 | | (d) Following a finding of unfitness, the court may hear | 4 | | and rule on any pretrial motion or motions if the minor's | 5 | | presence is not essential to a fair determination of the | 6 | | issues. A motion may be reheard upon a showing that evidence is | 7 | | available which was not available, due to the minor's | 8 | | unfitness, when the motion was first decided. | 9 | | (705 ILCS 405/5-5.5-110 new) | 10 | | Sec. 5-5.5-110. Right to jury.
The issue of the minor's | 11 | | fitness may be determined in the first instance by the court or | 12 | | by a jury. The defense or the State may demand a jury or the | 13 | | court on its own motion may order a jury. However, when the | 14 | | issue is raised after trial has begun or after conviction but | 15 | | before sentencing, or when the issue is to be redetermined | 16 | | under Section 5-5.5-150 or 5-5.5-185, the issue shall be | 17 | | determined by the court. | 18 | | (705 ILCS 405/5-5.5-115 new) | 19 | | Sec. 5-5.5-115. Fitness examination. | 20 | | (a) When the issue of fitness involves the minor's mental | 21 | | condition, the court shall order an examination of the minor by | 22 | | one or more licensed physicians, clinical psychologists, or | 23 | | psychiatrists chosen by the court. No physician, clinical | 24 | | psychologist, or psychiatrist employed by the Department of |
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| 1 | | Human Services shall be ordered to perform, in his or her | 2 | | official capacity, an examination under this Section. Under | 3 | | this Act, the evaluator must have training in child development | 4 | | as well as training or experience in forensic practice. | 5 | | (b) If the issue of fitness involves the minor's physical | 6 | | condition, the court shall appoint one or more physicians and | 7 | | in addition, other experts as it may deem appropriate to | 8 | | examine the minor and to report to the court regarding the | 9 | | minor's condition. | 10 | | (c) An examination ordered under this Section shall be | 11 | | given at the place designated by the person who will conduct | 12 | | the examination, except that if the minor is being held in | 13 | | custody, the examination shall take place at the location as | 14 | | the court directs. No examinations under this Section shall be | 15 | | ordered to take place at mental health or developmental | 16 | | disabilities facilities operated by the Department of Human | 17 | | Services. If the minor fails to keep appointments without | 18 | | reasonable cause or if the person conducting the examination | 19 | | reports to the court that diagnosis requires hospitalization or | 20 | | extended observation, the court may order the minor admitted to | 21 | | an appropriate facility for an examination, other than a | 22 | | screening examination, for not more than 7 days. The court may, | 23 | | upon a showing of good cause, grant an additional 7 days to | 24 | | complete the examination. | 25 | | (d) A juvenile who has been released from detention prior | 26 | | to trial shall not be placed
back in detention based solely on |
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| 1 | | the fact that a court has ordered an evaluation. | 2 | | (e) Upon request by the defense and if the minor is | 3 | | indigent, the court may appoint, in addition to the expert or | 4 | | experts chosen under subsection (a) of this Section, a | 5 | | qualified expert selected by the minor to examine him and to | 6 | | make a report as provided in Section 5-5.5-125. Upon the filing | 7 | | with the court of a verified statement of services rendered, | 8 | | the court shall enter an order on the county board to pay the | 9 | | expert a reasonable fee stated in the order. | 10 | | (705 ILCS 405/5-5.5-120 new) | 11 | | Sec. 5-5.5-120. Use of statements made during examination | 12 | | or treatment. | 13 | | (a) Statements made by the minor and information gathered | 14 | | in the course of any examination or treatment ordered under | 15 | | Section 5-5.5-115, 5-5.5-135, or 5-5.5-150 shall not be | 16 | | admissible against the minor unless he or she raises the | 17 | | defense of insanity or the defense of drugged or intoxicated | 18 | | condition, in which case the statements or information shall be | 19 | | admissible only on the issue of whether he or she was insane, | 20 | | drugged, or intoxicated. The refusal of the minor to cooperate | 21 | | in the examinations shall not preclude the raising of those | 22 | | defenses but shall preclude the minor from offering expert | 23 | | evidence or testimony tending to support the defenses if the | 24 | | expert evidence or testimony is based upon the expert's | 25 | | examination of the minor. |
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| 1 | | (b) Except as provided in paragraph (a) of this Section, no | 2 | | statement made by the minor in the course of any examination or | 3 | | treatment ordered under Section 5-5.5-115, 5-5.5-135, or | 4 | | 5-5.150 which relates to the crime charged or to other criminal | 5 | | acts shall be disclosed by persons conducting the examination | 6 | | or the treatment, except to members of the examining or | 7 | | treating team, without the informed written consent of the | 8 | | minor, who is competent at the time of giving the consent. | 9 | | (c) The court shall advise the minor of the limitations on | 10 | | the use of any statements made or information gathered in the | 11 | | course of the fitness examination or subsequent treatment as | 12 | | provided in this Section. It shall also advise him or her that | 13 | | he or she may refuse to cooperate with the person conducting | 14 | | the examination, but that his or her refusal may be admissible | 15 | | into evidence on the issue of his or her mental or physical | 16 | | condition. | 17 | | (705 ILCS 405/5-5.5-125 new) | 18 | | Sec. 5-5.5-125. Report. | 19 | | (a) The person or persons conducting an examination of the | 20 | | minor, under
paragraph (a) or (b) of Section 5-5.5-115 shall | 21 | | submit a written report to the court, the State, and the | 22 | | defense within 30 days of the date of the order. The report | 23 | | shall include: | 24 | | (1) a diagnosis and an explanation as to how it was | 25 | | reached and the facts upon which it is based; |
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| 1 | | (2) the minor's history and current status regarding | 2 | | any possible mental illness, intellectual disability, or | 3 | | physical disability; | 4 | | (3) a description of the cognitive abilities of the | 5 | | minor associated with the minor's current level of | 6 | | development; | 7 | | (4) the minor's functional abilities related to | 8 | | fitness, including the minor's ability to understand the | 9 | | nature and purpose of the proceedings against him or her or | 10 | | to assist in his or her defense; | 11 | | (5) the relationship between the minor's diagnosis, | 12 | | disabilities, developmental characteristics, and | 13 | | functional abilities, identified above, and any mental | 14 | | condition resulting in deficits to the minor's functional | 15 | | abilities related to fitness; and | 16 | | (6) if the evaluator believes the minor is in need of | 17 | | remediation or restoration services, the evaluator should | 18 | | discuss: | 19 | | (i) whether the minor's deficits are likely to be | 20 | | remediated or restored within the statutory period; | 21 | | (ii) any recommended interventions to aid in the | 22 | | remediation or
restoration of the minor's fitness; and | 23 | | (iii) whether it is more therapeutically | 24 | | appropriate to provide the interventions on an | 25 | | outpatient or inpatient basis. | 26 | | (b) If the report indicates that the minor is not fit to |
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| 1 | | stand trial or to plead because of a disability, the report | 2 | | shall include an opinion as to the likelihood of the minor | 3 | | attaining fitness within one year if provided with a course of | 4 | | treatment. If the person or persons preparing the report are | 5 | | unable to form that opinion, the report shall state the reasons | 6 | | for being able to form an opinion. The report may include a | 7 | | general description of the type of treatment needed and of the | 8 | | least physically restrictive form of treatment therapeutically | 9 | | appropriate. | 10 | | (c) The report shall indicate what information, if any, | 11 | | contained in the report may be harmful to the mental condition | 12 | | of the minor if made known to him or her. | 13 | | (705 ILCS 405/5-5.5-130 new) | 14 | | Sec. 5-5.5-130. Fitness hearing. | 15 | | (a) The court shall conduct a hearing to determine the | 16 | | minor's fitness within 14 days of receipt of the final written | 17 | | report unless agreed upon by all parties or for good cause | 18 | | shown; in which case the hearing shall be conducted no later | 19 | | than 45 days of receipt of the final written report of the | 20 | | person or persons conducting the examination or upon conclusion | 21 | | of the matter then pending before it, subject to continuances | 22 | | allowed under, Section 114-4 of the Code of Criminal Procedure | 23 | | of 1963. | 24 | | (b) Subject to the rules of evidence, matters admissible on | 25 | | the issue of the minor's fitness include, but are not limited |
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| 1 | | to, the following: | 2 | | (1) the minor's knowledge and understanding of the | 3 | | charge, the proceedings, the consequences of a plea, | 4 | | judgment, or sentence, and the functions of the | 5 | | participants in the trial process; | 6 | | (2) the minor's ability to observe, recollect, and | 7 | | relate occurrences, especially those concerning the | 8 | | incidents alleged, and to communicate with and assist | 9 | | counsel; | 10 | | (3) the minor's social behavior and abilities; | 11 | | orientation as to time and place; recognition of persons, | 12 | | places, and things; and performance of motor processes; and | 13 | | strengths and weaknesses as they relate to the necessary | 14 | | abilities to be fit; and | 15 | | (4) the relationship between the minor's fitness | 16 | | deficits and any mental or physical condition or | 17 | | developmental immaturity. | 18 | | (c) The minor has the right to be present at every hearing | 19 | | on the issue of his or her fitness. The minor's presence may be | 20 | | waived only if there is filed with the court a certificate | 21 | | stating that the minor is physically unable to be present and | 22 | | the reasons therefor. The certificate shall be signed by a | 23 | | licensed physician who, within 7 days, has examined the minor. | 24 | | (d) On the basis of the evidence before it, the court or | 25 | | jury shall determine whether the minor is fit to stand trial or | 26 | | to plead. If it finds that the minor is unfit, the court or the |
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| 1 | | jury shall determine whether there is substantial probability | 2 | | that the minor, if provided with a course of treatment, will | 3 | | attain fitness within one year. If the court or the jury finds | 4 | | that there is not a substantial probability, the court shall | 5 | | proceed as provided in Section 5-5.5-165. If the probability is | 6 | | found or if the court or the jury is unable to determine | 7 | | whether a substantial probability exists, the court shall order | 8 | | the minor to undergo treatment for the purpose of rendering him | 9 | | fit. In the event that a minor is ordered to undergo treatment | 10 | | when there has been no determination as to the probability of | 11 | | his or her attaining fitness, the court shall conduct a hearing | 12 | | as soon as possible following the receipt of the report filed | 13 | | under paragraph (d) of Section 5-5.5-135, unless the hearing is | 14 | | waived by the defense, and shall make a determination as to | 15 | | whether a substantial probability exists. | 16 | | (e) An order finding the minor unfit is a final order for | 17 | | purposes of appeal by the State or the minor. | 18 | | (705 ILCS 405/5-5.5-135 new) | 19 | | Sec. 5-5.5-135. Commitment for treatment; treatment plan. | 20 | | (a) The court shall select the least physically restrictive | 21 | | form of treatment therapeutically appropriate and consistent | 22 | | with the treatment recommendations. | 23 | | (b) When a minor's finding of unfitness is based upon | 24 | | mental illness, developmental disability, developmental | 25 | | immaturity, or physical limitations, the court may order the |
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| 1 | | minor placed under the supervision of the Department of Human | 2 | | Services which shall place and maintain the minor in a suitable | 3 | | treatment program or facility, or the court may order the minor | 4 | | placed in an appropriate public or private treatment program or | 5 | | facility which has agreed to provide treatment to the minor. | 6 | | The placement may be ordered either on an outpatient or | 7 | | inpatient basis, whichever is therapeutically appropriate and | 8 | | least restrictive. | 9 | | (c) If the minor's disability is physical, the court may | 10 | | order the minor placed under the supervision of the Department | 11 | | of Human Services which shall place and maintain the minor in a | 12 | | suitable treatment facility or program, or the court may order | 13 | | the minor placed in an appropriate public or private facility | 14 | | or treatment program which has agreed to provide treatment to | 15 | | the minor. The placement may be ordered either on an inpatient | 16 | | or an outpatient basis, whichever is therapeutically | 17 | | appropriate and least restrictive. | 18 | | (d) The clerk of the circuit court shall transmit to the | 19 | | Department, agency, or institution, if any, to which the minor | 20 | | is remanded for treatment, the following: | 21 | | (1) a certified copy of the order to undergo treatment; | 22 | | (2) the county and municipality where the offense is | 23 | | alleged to have been committed; | 24 | | (3) the county and municipality in which the arrest | 25 | | took place; | 26 | | (4) a copy of the arrest report, criminal charges, |
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| 1 | | arrest record, jail record, and the report prepared under | 2 | | Section 5-5.5-125; and | 3 | | (5) any additional matters which the court directs the | 4 | | clerk to transmit. | 5 | | (e) Within 30 days of entry of an order to undergo | 6 | | treatment, the person supervising the minor's treatment shall | 7 | | file with the court, the State, and the defense a report | 8 | | assessing the facility's or program's capacity to provide | 9 | | appropriate treatment for the minor and indicating his or her | 10 | | opinion as to the probability of the minor's attaining fitness | 11 | | within a period of one year from the date of the finding of | 12 | | unfitness. If the report indicates that there is a substantial | 13 | | probability that the minor will attain fitness within the time | 14 | | period, the treatment supervisor shall also file a treatment | 15 | | plan which shall include: | 16 | | (1) a diagnosis of the minor's disability; | 17 | | (2) a description of treatment goals with respect to
| 18 | | rendering the minor fit, a specification of the proposed | 19 | | treatment modalities, and an estimated timetable for | 20 | | attainment of the goals; and | 21 | | (3) an identification of the person in charge of
| 22 | | supervising the minor's treatment. | 23 | | (705 ILCS 405/5-5.5-140 new) | 24 | | Sec. 5-5.5-140. Progress reports. | 25 | | (a) The treatment supervisor shall submit a written |
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| 1 | | progress report to the court, the State, and the defense: | 2 | | (1) at least 7 days prior to the date for any hearing | 3 | | on the issue of the minor's fitness; | 4 | | (2) whenever he or she believes that the minor has | 5 | | attained fitness; or | 6 | | (3) whenever he or she believes that there is not a | 7 | | substantial probability that the minor will attain | 8 | | fitness, with treatment, within one year from the date of | 9 | | the original finding of unfitness. | 10 | | (b) The progress report shall contain: | 11 | | (1) the clinical findings of the treatment supervisor | 12 | | and the facts upon which the findings are based; | 13 | | (2) the opinion of the treatment supervisor as to | 14 | | whether the minor has attained fitness or as to whether the | 15 | | minor is making progress, under treatment, toward | 16 | | attaining fitness within one year from the date of the | 17 | | original finding of unfitness; and | 18 | | (3) if the minor is receiving medication, information | 19 | | from the prescribing physician indicating the type, the | 20 | | dosage, and the effect of the medication on the minor's | 21 | | appearance, actions, and demeanor. | 22 | | (705 ILCS 405/5-5.5-145 new) | 23 | | Sec. 5-5.5-145. Records. Any report filed of record with | 24 | | the court concerning diagnosis, treatment, or treatment plans | 25 | | made under this Article shall not be placed in the minor's |
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| 1 | | court record but shall be maintained separately by the clerk of | 2 | | the court and shall be available only to the court or an | 3 | | appellate court, the State, the defense, a facility or program | 4 | | which is providing treatment to the minor under an order of the | 5 | | court, or other persons as the court may direct. | 6 | | (705 ILCS 405/5-5.5-150 new) | 7 | | Sec. 5-5.5-150. Ninety-day hearings; continuing treatment. | 8 | | (a) Upon entry or continuation of any order to undergo | 9 | | treatment, the court shall set a date for hearing to reexamine | 10 | | the issue of the minor's fitness not more than 90 days | 11 | | thereafter. In addition, whenever the court receives a report | 12 | | from the supervisor of the minor's treatment under paragraph | 13 | | (2) or (3) of subsection (a) of Section 5-5.5-140, the court | 14 | | shall immediately set the matter for a first hearing within 14 | 15 | | days unless good cause is shown why the hearing cannot be held. | 16 | | On the date set or upon conclusion of the matter then pending | 17 | | before it, the court, sitting without a jury, shall conduct a | 18 | | hearing, unless waived by the defense, and shall determine: | 19 | | (1) whether the minor is fit to stand trial or to | 20 | | plead; and if not, | 21 | | (2) whether the minor is making progress under | 22 | | treatment toward
attainment of fitness within one year from | 23 | | the date of the original finding of unfitness. | 24 | | (b) If the court finds the minor to be fit under this | 25 | | Section, the court shall set the matter for trial; however, if |
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| 1 | | the minor is in need of continued care or treatment and the | 2 | | supervisor of the minor's treatment agrees to continue to | 3 | | provide it, the court may enter any order it deems appropriate | 4 | | for the continued care or treatment of the minor by the | 5 | | facility or program pending the conclusion of the criminal | 6 | | proceedings. | 7 | | (c) If the court finds that the minor is still unfit but | 8 | | that he or she is making progress toward attaining fitness, the | 9 | | court may continue or modify its original treatment order | 10 | | entered under Section 5-5.5-135. | 11 | | (d) If the court finds that the minor is still unfit and | 12 | | that he or she is not making progress toward attaining fitness | 13 | | such that there is not a substantial probability that he or she | 14 | | will attain fitness within one year from the date of the | 15 | | original finding of unfitness, the court shall proceed under | 16 | | Section 5-5.5-165. However, if the minor is in need of | 17 | | continued care and treatment and the supervisor of the minor's | 18 | | treatment agrees to continue to provide it, the court may enter | 19 | | any order it deems appropriate for the continued care or | 20 | | treatment by the facility or program pending the conclusion of | 21 | | the criminal proceedings. | 22 | | (705 ILCS 405/5-5.5-155 new) | 23 | | Sec. 5-5.5-155. Medication. | 24 | | (a) A minor who is receiving psychotropic medication shall | 25 | | not be presumed to be unfit to stand trial solely by virtue of |
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| 1 | | the receipt of those drugs or medications. | 2 | | (b) Whenever a minor who is receiving medication under | 3 | | medical direction is transferred between a place of custody and | 4 | | a treatment facility or program, a written report from the | 5 | | prescribing physician shall accompany the minor. The report | 6 | | shall state the type and dosage of the minor's medication and | 7 | | the duration of the prescription. The chief officer of the | 8 | | place of custody or the treatment supervisor at the facility or | 9 | | program shall insure that the medication is provided according | 10 | | to the directions of the prescribing physician or until | 11 | | superseded by order of a physician who has examined the minor. | 12 | | (c) If a minor who is deemed incompetent is in need of | 13 | | medication, care will be taken by the treatment provider to | 14 | | provide the medicine expected to assist in the restoration of | 15 | | competency, whether or not that medication is on the formulary. | 16 | | (705 ILCS 405/5-5.5-160 new) | 17 | | Sec. 5-5.5-160. Trial with special provisions and | 18 | | assistance. | 19 | | (a) On motion of the minor, the State, or on the court's | 20 | | own motion, the court shall determine whether special | 21 | | provisions or assistance will render the minor fit to stand | 22 | | trial as defined in Section 5-5.5-101. | 23 | | (b) The special provisions or assistance may include but | 24 | | are not limited to: | 25 | | (1) Appointment of qualified translators who shall |
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| 1 | | simultaneously translate all testimony at trial into | 2 | | language understood by the minor. | 3 | | (2) Appointment of experts qualified to assist a minor | 4 | | who because of a disability is unable to understand the | 5 | | proceedings or communicate with his or her attorney. | 6 | | (c) The case may proceed to trial only if the court | 7 | | determines that the provisions or assistance compensate for a | 8 | | minor's disabilities so as to render the minor fit as defined | 9 | | in Section 5-5.5-101. In that case the court shall state for | 10 | | the record the following: | 11 | | (1) the qualifications and experience of the experts or | 12 | | other persons appointed to provide special assistance to | 13 | | the minor; | 14 | | (2) the court's reasons for selecting or appointing the | 15 | | experts or other persons to provide the special assistance | 16 | | to the minor; | 17 | | (3) how the appointment of the expert or other persons | 18 | | will serve the goal of rendering the minor fit in view of | 19 | | the appointee's qualifications and experience, taken in | 20 | | conjunction with the particular disabilities of the minor; | 21 | | and | 22 | | (4) any other factors considered by the court in | 23 | | appointing that expert or person. | 24 | | (705 ILCS 405/5-5.5-165 new) | 25 | | Sec. 5-5.5-165. Unfit minors.
Cases involving an unfit |
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| 1 | | minor who demands a discharge hearing or a minor who cannot | 2 | | become fit to stand trial and for whom no special provisions or | 3 | | assistance can compensate for his or her disability and render | 4 | | the minor fit shall proceed in the following manner: | 5 | | (1) Upon a determination that there is not a substantial | 6 | | probability that the minor will attain fitness within one year | 7 | | from the original finding of unfitness, a minor or the attorney | 8 | | for the minor may move for a discharge hearing under the | 9 | | provisions of Section 5-5.5-175. The discharge hearing shall be | 10 | | held within 120 days of the filing of a motion for a discharge | 11 | | hearing, unless the delay is occasioned by the minor. | 12 | | (2) If at any time the court determines that there is not a | 13 | | substantial probability that the minor will become fit to stand | 14 | | trial or to plead within one year from the date of the original | 15 | | finding of unfitness, or if at the end of one year from that | 16 | | date the court finds the minor still unfit and for whom no | 17 | | special provisions or assistance can compensate for his or her | 18 | | disabilities and render the minor fit, the State shall request | 19 | | the court: | 20 | | (A) to set the matter for hearing under Section | 21 | | 5-5.5-175 unless a hearing
has already been held under | 22 | | paragraph (1) of this Section; or | 23 | | (B) to release the minor from custody and to dismiss | 24 | | with prejudice
the charges against the minor; or | 25 | | (C) to remand the minor to the custody of the | 26 | | Department of Human
Services and order a hearing to be |
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| 1 | | conducted under the provisions of the Mental Health and | 2 | | Developmental Disabilities Code. The Department of Human | 3 | | Services shall have 7 days from the date it receives the | 4 | | minor to prepare and file the necessary petition and | 5 | | certificates that are required for commitment under the | 6 | | Mental Health and Developmental Disabilities Code. If the | 7 | | minor is committed to the Department of Human Services | 8 | | under the hearing, the court having jurisdiction over the | 9 | | criminal matter shall dismiss the charges against the | 10 | | minor, with the leave to reinstate. In those cases the | 11 | | Department of Human Services shall notify the court, the | 12 | | State's Attorney, and the defense attorney upon the | 13 | | discharge of the minor. A former minor so committed shall | 14 | | be treated in the same manner as any other civilly | 15 | | committed patient for all purposes including admission, | 16 | | selection of the place of treatment and the treatment | 17 | | modalities, entitlement to rights and privileges, | 18 | | transfer, and discharge. A minor who is not committed shall | 19 | | be remanded to the court having jurisdiction of the | 20 | | criminal matter for disposition under subparagraph (A) or | 21 | | (B) of paragraph (2) of this Section. | 22 | | (3) If the minor is restored to fitness and the original | 23 | | charges against the minor are reinstated, the speedy trial | 24 | | provisions of Section 103-5 of the Code of Criminal Procedure | 25 | | of 1963 shall commence to run. |
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| 1 | | (705 ILCS 405/5-5.5-170 new) | 2 | | Sec. 5-5.5-170. Time credit.
Time spent in custody under | 3 | | orders issued under Section 5-5.5-135 or 5-5.5-150 or pursuant | 4 | | to a commitment to the Department of Human Services following a | 5 | | finding of unfitness or incompetency under prior law, shall be | 6 | | credited against any sentence imposed on the minor in the | 7 | | pending criminal case or in any other case arising out of the | 8 | | same conduct. | 9 | | (705 ILCS 405/5-5.5-175 new) | 10 | | Sec. 5-5.5-175. Discharge hearing. | 11 | | (a) As provided for in paragraph (1) of Section 5-5.5-165 | 12 | | and subparagraph (A) of paragraph (2) of Section 5-5.5-165 a | 13 | | hearing to determine the sufficiency of the evidence shall be | 14 | | held. The hearing shall be conducted by the court without a | 15 | | jury. The State and the minor may introduce evidence relevant | 16 | | to the question of minor's guilt of the crime charged.
The | 17 | | court may admit hearsay or affidavit evidence on secondary | 18 | | matters such as testimony to establish the chain of possession | 19 | | of physical evidence, laboratory reports, authentication of | 20 | | transcripts taken by official reporters, court and business | 21 | | records, and public documents. | 22 | | (b) If the evidence does not prove the minor guilty beyond | 23 | | a reasonable doubt, the court shall enter a judgment of | 24 | | acquittal; however, nothing in this Article shall prevent the | 25 | | State from requesting the court to commit the minor to the |
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| 1 | | Department of Human Services under the provisions of the Mental | 2 | | Health and Developmental Disabilities Code. | 3 | | (c) If the minor is found not guilty by reason of insanity, | 4 | | the court shall enter a judgment of acquittal and the | 5 | | proceedings after acquittal by reason of insanity under Section | 6 | | 5-2-4 of the Unified Code of Corrections shall apply. | 7 | | (d) If the discharge hearing does not result in an | 8 | | acquittal of the charge the minor may be remanded for further | 9 | | treatment and the one year time limit set forth in Section | 10 | | 5-5.5-165 shall be extended as follows: | 11 | | (1) if the most serious charge upon which the State
| 12 | | sustained its burden of proof was a Class 1 or Class X | 13 | | felony, the treatment period may be extended up to a | 14 | | maximum treatment period of 2 years; if a Class 2, 3, or 4 | 15 | | felony, the treatment period may be extended up to a | 16 | | maximum of 15 months; or | 17 | | (2) if the State sustained its burden of proof on a
| 18 | | charge of first degree murder, the treatment period may be | 19 | | extended up to a maximum treatment period of 5 years. | 20 | | (e) Transcripts of testimony taken at a discharge hearing | 21 | | may be admitted in evidence at a subsequent trial of the minor, | 22 | | subject to the rules of evidence, if the witness who gave the | 23 | | testimony is legally unavailable at the time of the subsequent | 24 | | trial. | 25 | | (f) If the court fails to enter an order of acquittal the | 26 | | minor may appeal from the judgment in the same manner provided |
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| 1 | | for an appeal from a conviction in a criminal case. | 2 | | (g) At the expiration of an extended period of treatment | 3 | | ordered under this Section: | 4 | | (1) Upon a finding that the minor is fit or can
be | 5 | | rendered fit consistent with Section 5-5.5-160, the court | 6 | | may proceed with trial. | 7 | | (2) If the minor continues to be unfit to stand
trial, | 8 | | the court shall determine whether he or she is subject to | 9 | | involuntary admission under the Mental Health and | 10 | | Developmental Disabilities Code or constitutes a serious | 11 | | threat to the public safety. If so found, the minor shall | 12 | | be remanded to the Department of Human Services for further | 13 | | treatment and shall be treated in the same manner as a | 14 | | civilly committed patient for all purposes, except that the | 15 | | original court having jurisdiction over the minor shall be | 16 | | required to approve any conditional release or discharge of | 17 | | the minor, for the period of commitment equal to the | 18 | | maximum sentence to which the minor would have been subject | 19 | | had he or she been convicted in a criminal proceeding. | 20 | | During this period of commitment, the original court having | 21 | | jurisdiction over the minor shall hold hearings under | 22 | | subparagraph (A) of this paragraph (2). However, if the | 23 | | minor is remanded to the Department of Human Services, the | 24 | | minor shall be placed in a secure setting unless the court | 25 | | determines that there are compelling reasons why the | 26 | | placement is not necessary.
If the minor does not have a |
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| 1 | | current treatment
plan, then within 3 days of admission | 2 | | under this paragraph (2), a treatment plan shall be | 3 | | prepared for the minor and entered into his or her record. | 4 | | The plan shall include (i) an assessment of the minor's | 5 | | treatment needs, (ii) a description of the services | 6 | | recommended for treatment, (iii) the goals of each type of | 7 | | element of service, (iv) an anticipated timetable for the | 8 | | accomplishment of the goals, and (v) a designation of the | 9 | | qualified professional responsible for the implementation | 10 | | of the plan. The plan shall be reviewed and updated as the | 11 | | clinical condition warrants, but not less than every 30 | 12 | | days.
Every 90 days after the initial admission under this
| 13 | | paragraph (2), the facility director shall file a typed | 14 | | treatment plan report with the original court having | 15 | | jurisdiction over the minor. The report shall include an | 16 | | opinion as to whether the minor is fit to stand trial and | 17 | | whether the minor is currently subject to involuntary | 18 | | admission, in need of mental health services on an | 19 | | inpatient basis, or in need of mental health services on an | 20 | | outpatient basis. The report shall also summarize the basis | 21 | | for those findings and provide a current summary of the 5 | 22 | | items required in a treatment plan. A copy of the report | 23 | | shall be forwarded to the clerk of the court, the State's | 24 | | Attorney, and the minor's attorney if the minor is | 25 | | represented by counsel. | 26 | | The court on its own motion may order a hearing to
review |
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| 1 | | the treatment plan. The minor or the State's Attorney may | 2 | | request a treatment plan review every 90 days and the court | 3 | | shall review the current treatment plan to determine whether | 4 | | the plan complies with the requirements of this Section. The | 5 | | court may order an independent examination on its own | 6 | | initiative and shall order an evaluation if either the | 7 | | recipient or the State's Attorney so requests and has | 8 | | demonstrated to the court that the plan cannot be effectively | 9 | | reviewed by the court without the an examination. Under no | 10 | | circumstances shall the court be required to order an | 11 | | independent examination under this Section more than once each | 12 | | year. The examination shall be conducted by a psychiatrist or | 13 | | clinical psychologist as defined in Section 1-103 of the Mental | 14 | | Health and Developmental Disabilities Code who is not in the | 15 | | employ of the Department of Human Services.
If, during the | 16 | | period within which the minor is
confined in a secure setting, | 17 | | the court enters an order that requires the minor to appear, | 18 | | the court shall timely transmit a copy of the order or writ to | 19 | | the director of the particular Department of Human Services | 20 | | facility where the minor resides authorizing the | 21 | | transportation of the minor to the court for the purpose of the | 22 | | hearing. | 23 | | (A) 180 days after a minor is remanded to the
| 24 | | Department of Human Services, under paragraph (2), and | 25 | | every 180 days thereafter for so long as the minor is | 26 | | confined under the order entered thereunder, the court |
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| 1 | | shall set a hearing and shall direct that notice of the | 2 | | time and place of the hearing be served upon the minor, the | 3 | | facility director, the State's Attorney, and the minor's | 4 | | attorney. If requested by either the State or the defense | 5 | | or if the court determines that it is appropriate, an | 6 | | impartial examination of the minor by a psychiatrist or | 7 | | clinical psychologist as defined in Section 1-103 of the | 8 | | Mental Health and Developmental Disabilities Code who is | 9 | | not in the employ of the Department of Human Services shall | 10 | | be ordered, and the report considered at the time of the | 11 | | hearing. If the minor is not currently represented by | 12 | | counsel the court shall appoint counsel to represent the | 13 | | minor at the hearing. The court shall make a finding as to | 14 | | whether the minor is: | 15 | | (i) subject to involuntary admission; | 16 | | (ii) in need of mental health services in the
form | 17 | | of inpatient care; or | 18 | | (iii) in need of mental health services but not
| 19 | | subject to involuntary admission nor inpatient care.
| 20 | | The findings of the court shall be established by
clear | 21 | | and convincing evidence and the burden of proof and the | 22 | | burden of going forward with the evidence shall rest | 23 | | with the State's Attorney. Upon finding by the court, | 24 | | the court shall enter its findings and an appropriate | 25 | | order. | 26 | | (B) The terms "subject to involuntary
admission", "in need |
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| 1 | | of mental health services in the form of inpatient care" and | 2 | | "in need of mental health services but not subject to | 3 | | involuntary admission nor inpatient care" shall have the | 4 | | meanings ascribed to them in paragraph (3) of subsection (d) of | 5 | | Section 5-2-4 of the Unified Code of Corrections. | 6 | | (3) If the minor is not committed under
this Section, | 7 | | he or she shall be released. | 8 | | (4) In no event may the treatment period be extended
to | 9 | | exceed the maximum sentence to which a minor would have | 10 | | been subject had he or she been convicted in a criminal | 11 | | proceeding. For purposes of this Section, the maximum | 12 | | sentence shall be determined by Section 5-8-1 (730 ILCS | 13 | | 5/5-8-1) or Article 4.5 of Chapter V of the Unified Code of | 14 | | Corrections, excluding any sentence of natural life. The | 15 | | treatment period cannot extend beyond the jurisdiction of | 16 | | this Act. | 17 | | (705 ILCS 405/5-5.5-180 new) | 18 | | Sec. 5-5.5-180. Disposition of minors suffering | 19 | | disabilities. | 20 | | (a) A minor convicted following a trial conducted under the | 21 | | provisions of Section 5-5.5-160 shall not be sentenced before a | 22 | | written presentence report of investigation is presented to and | 23 | | considered by the court. The presentence report shall be | 24 | | prepared under Sections 5-3-2, 5-3-3, and 5-3-4 of the Unified | 25 | | Code of Corrections and shall include a physical and mental |
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| 1 | | examination unless the court finds that the reports of prior | 2 | | physical and mental examinations conducted under this Article | 3 | | are adequate and recent enough so that additional examinations | 4 | | would be unnecessary. | 5 | | (b) A minor convicted following a trial under Section | 6 | | 5-5.5-160 shall not be subject to the death penalty. | 7 | | (c) A minor convicted following a trial under Section | 8 | | 5-5.5-160 shall be sentenced according to the procedures and | 9 | | dispositions authorized under the Unified Code of Corrections | 10 | | subject to the following provisions: | 11 | | (1) The court shall not impose a sentence of
| 12 | | imprisonment upon the minor if the court believes that | 13 | | because of his or her disability a sentence of imprisonment | 14 | | would not serve the ends of justice and the interests of | 15 | | society and the minor or that because of his or her | 16 | | disability a sentence of imprisonment would subject the | 17 | | offender to excessive hardship. In addition to any other | 18 | | conditions of a sentence of conditional discharge or | 19 | | probation the court may require that the minor undergo | 20 | | treatment appropriate to his or her mental or physical | 21 | | condition. | 22 | | (2) After imposing a sentence of imprisonment upon a
| 23 | | minor who has a mental disability, the court may remand him | 24 | | or her to the custody of the Department of Human Services | 25 | | and order a hearing to be conducted under the provisions of | 26 | | the Mental Health and Developmental Disabilities Code. If |
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| 1 | | the minor is committed following the hearing, he or she | 2 | | shall be treated in the same manner as any other civilly | 3 | | committed patient for all purposes except as provided in | 4 | | this Section. If the minor is not committed under the | 5 | | hearing, he or she shall be remanded to the sentencing | 6 | | court for disposition according to the sentence imposed. | 7 | | (3) If the court imposes a sentence of imprisonment
| 8 | | upon a minor who has a mental disability but does not | 9 | | proceed under paragraph (2) of subsection (c) of this | 10 | | Section, it shall order the Department of Corrections to | 11 | | proceed under Section 3-8-5 of the Unified Code of | 12 | | Corrections. | 13 | | (4) If the court imposes a sentence of imprisonment
| 14 | | upon a minor who has a physical disability, it may | 15 | | authorize the Department of Corrections to place the minor | 16 | | in a public or private facility which is able to provide | 17 | | care or treatment for the minor's disability and which | 18 | | agrees to do so. | 19 | | (5) When a minor is placed with the Department of
Human | 20 | | Services or another facility under paragraph (2) or (4) of | 21 | | this subsection (c), the Department or private facility | 22 | | shall not discharge or allow the minor to be at large in | 23 | | the community without prior approval of the court. If the | 24 | | minor is placed in the custody of the Department of Human | 25 | | Services, the minor shall be placed in a secure setting | 26 | | unless the court determines that there are compelling |
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| 1 | | reasons why the placement is not necessary. The minor shall | 2 | | accrue good time and shall be eligible for parole in the | 3 | | same manner as if he or she were serving his or her | 4 | | sentence within the Department of Corrections. When the | 5 | | minor no longer requires hospitalization, care, or | 6 | | treatment, the Department of Human Services or the facility | 7 | | shall transfer him or her, if his or her sentence has not | 8 | | expired, to the Department of Corrections. If a minor is | 9 | | transferred to the Department of Corrections, the | 10 | | Department of Human Services shall transfer to the | 11 | | Department of Corrections all related records pertaining | 12 | | to length of custody and treatment services provided during | 13 | | the time the minor was held. | 14 | | (6) The Department of Corrections shall notify the
| 15 | | Department of Human Services or a facility in which a minor | 16 | | has been placed under paragraph (2) or (4) of subsection | 17 | | (c) of this Section of the expiration of his or her | 18 | | sentence. Thereafter, a minor in the Department of Human | 19 | | Services shall continue to be treated under his commitment | 20 | | order and shall be considered a civilly committed patient | 21 | | for all purposes including discharge. A minor who is in a | 22 | | facility under paragraph (4) of subsection (c) of this | 23 | | Section shall be informed by the facility of the expiration | 24 | | of his or her sentence, and shall either consent to the | 25 | | continuation of his or her care or treatment by the | 26 | | facility or shall be discharged. |
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| 1 | | (705 ILCS 405/5-5.5-185 new) | 2 | | Sec. 5-5.5-185. Minors found unfit prior to the effective | 3 | | date of this Article; reports; appointment of counsel. | 4 | | (a) Within 180 days after the effective date of this | 5 | | Article, the Department of Human Services shall compile a | 6 | | report on each minor under its custody who was found unfit or | 7 | | incompetent to stand trial or to be sentenced prior to the | 8 | | effective date of this Article. Each report shall include the | 9 | | minor's name, indictment and warrant numbers, the county of his | 10 | | or her commitment, the length of time he or she has been | 11 | | hospitalized, the date of his or her last fitness hearing, and | 12 | | a report on his or her present status as provided in Section | 13 | | 5-5.5-140. | 14 | | (b) The reports shall be forwarded to the Supreme Court | 15 | | which shall distribute copies thereof to the chief judge of the | 16 | | court in which the criminal charges were originally filed, to | 17 | | the State's Attorney and the public defender of the same | 18 | | county, and to the minor's attorney of record, if any. Notice | 19 | | that the report has been delivered shall be given to the minor. | 20 | | (c) Upon receipt of the report, the chief judge shall | 21 | | appoint the public defender or other counsel for each minor who | 22 | | is not represented by counsel and who is indigent under Section | 23 | | 113-3 of the Code of Criminal Procedure of 1963. The court | 24 | | shall provide the minor's counsel with a copy of the report. |
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| 1 | | (705 ILCS 405/5-5.5-190 new) | 2 | | Sec. 5-5.5-190. Disposition of minors found unfit prior to | 3 | | the effective date of this Article. | 4 | | (a) Upon reviewing the report, the court shall determine | 5 | | whether the minor has been in the custody of the Department of | 6 | | Human Services for a period of time equal to the length of time | 7 | | that the minor would have been required to serve, less good | 8 | | time, before becoming eligible for parole or mandatory | 9 | | supervised release had he or she been convicted of the most | 10 | | serious offense charged and had he or she received the maximum | 11 | | sentence therefor. If the court so finds, it shall dismiss the | 12 | | charges against the minor, with leave to reinstate. If the | 13 | | minor has not been committed under the Mental Health and | 14 | | Developmental Disabilities Code, the court shall order him or | 15 | | her discharged or shall order a hearing to be conducted | 16 | | immediately under the provisions of the Code. If the minor was | 17 | | committed under the Code, he or she shall continue to be | 18 | | treated under his or her commitment order and shall be | 19 | | considered a civilly committed patient for all purposes | 20 | | including discharge. | 21 | | (b) If the court finds that a minor has been in the custody | 22 | | of the Department of Human Services for a period less than that | 23 | | specified in paragraph (a) of this Section, the court shall | 24 | | conduct a hearing under Section 5-5.5-150 immediately to | 25 | | redetermine the issue of the minor's fitness to stand trial or | 26 | | to plead. If the minor is fit, the matter shall be set for |
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| 1 | | trial. If the court finds that the minor is unfit, it shall | 2 | | proceed under Section 5-5.5-150 or 5-5.5-165; however, a minor | 3 | | who is still unfit and who has been in the custody of the | 4 | | Department of Human Services for a period of more than one year | 5 | | from the date of the finding of unfitness shall be immediately | 6 | | subject to the provisions of Section 5-5.5-165. | 7 | | (705 ILCS 405/5-5.5-195 new) | 8 | | Sec. 5-5.5-195. Conflict. In the event of any conflict | 9 | | between this Article and the Mental Health and Developmental | 10 | | Disabilities Code, the provisions of this Article shall govern. | 11 | | (705 ILCS 405/5-5.5-200 new) | 12 | | Sec. 5-5.5-200. Notice to law enforcement agencies | 13 | | regarding release of minors. | 14 | | (a) Prior to the release by the Department of Human | 15 | | Services of any person admitted under any provision of this | 16 | | Article, the Department of Human Services shall give written | 17 | | notice to the sheriff of the county where the minor was | 18 | | admitted. In cases where the arrest of the minor or the | 19 | | commission of the offense took place in any municipality with a | 20 | | population of more than 25,000, the Department of Human | 21 | | Services shall also give written notice to the proper law | 22 | | enforcement agency for the municipality, provided the | 23 | | municipality has requested the notice in writing. | 24 | | (b) Where a minor in the custody of the Department of Human |
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| 1 | | Services under any provision of this Article is released under | 2 | | an order of court, the clerk of the circuit court shall, after | 3 | | the entry of the order, transmit a certified copy of the order | 4 | | of release to the Department of Human Services and the Sheriff | 5 | | of the county where the minor was admitted. In cases where the | 6 | | arrest of the minor or the commission of the offense took place | 7 | | in any municipality with a population of more than 25,000, the | 8 | | clerk of the circuit court shall also send a certified copy of | 9 | | the order of release to the proper law enforcement agency for | 10 | | the municipality provided the municipality has requested the | 11 | | notice in writing. | 12 | | (705 ILCS 405/5-5.5-205 new) | 13 | | Sec. 5-5.5-205. Security and transportation.
No minor | 14 | | placed in a setting of the Department of Human Services under | 15 | | the provisions of Sections 5-5.5-135, 5-5.5-175, or 5-5.5-180 | 16 | | shall be permitted outside the facility's housing unit unless | 17 | | escorted or accompanied by personnel of the Department of Human | 18 | | Services or authorized by court order. Any minor placed in a | 19 | | secure setting under this Section, transported to court | 20 | | hearings or other necessary appointments off facility grounds | 21 | | by personnel of the Department of Human Services, may be placed | 22 | | in security devices or otherwise secured during the period of | 23 | | transportation to assure secure transport of the minor and the | 24 | | safety of Department of Human Services personnel and others. | 25 | | These security measures shall not constitute restraint as |
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| 1 | | defined in the Mental Health and Developmental Disabilities | 2 | | Code. Nor shall any minor be permitted any off-grounds | 3 | | privileges, either with or without escort by personnel of the | 4 | | Department of Human Services, any unsupervised on-ground | 5 | | privileges, or placement in a non-secure setting unless the | 6 | | off-grounds or unsupervised on-grounds privileges, or | 7 | | placement in a non-secure setting have been approved by | 8 | | specific court order, which order may include the conditions on | 9 | | the minor as the court may deem appropriate and necessary to | 10 | | reasonably assure the minor's satisfactory progress in | 11 | | treatment and the safety of the minor or others. Whenever the | 12 | | court receives a report from the supervisor of the minor's | 13 | | treatment recommending the minor for any off-grounds or | 14 | | unsupervised on-grounds privileges, or placement in a | 15 | | non-secure setting, the court shall set the matter for a first | 16 | | hearing within 21 days unless good cause is shown why the | 17 | | hearing cannot be held. The changes made to this Section by | 18 | | this amendatory Act of the 98th General Assembly are | 19 | | declarative of existing law and shall not be construed as a new | 20 | | enactment. ".
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