Full Text of SB2801 98th General Assembly
SB2801 98TH GENERAL ASSEMBLY |
| | 98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014 SB2801 Introduced 1/30/2014, by Sen. William R. Haine SYNOPSIS AS INTRODUCED: |
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725 ILCS 5/104-17 | from Ch. 38, par. 104-17 |
725 ILCS 5/104-18 | from Ch. 38, par. 104-18 |
725 ILCS 5/104-20 | from Ch. 38, par. 104-20 |
725 ILCS 5/104-21 | from Ch. 38, par. 104-21 |
725 ILCS 5/104-23 | from Ch. 38, par. 104-23 |
725 ILCS 5/104-31 | from Ch. 38, par. 104-31 |
730 ILCS 5/5-2-4 | from Ch. 38, par. 1005-2-4 |
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Amends the Code of Criminal Procedure of 1963 and the Unified Code of Corrections. If a defendant found unfit to stand trial or acquitted by reason of insanity is placed in the custody of the Department of Human Services, removes the ability of the court to order placement in a non-secure setting within the Department if compelling reasons exist. Any defendant sent to the Department shall be held in a secure setting. For an unfit defendant charged with a misdemeanor, changes the period of time in which the defendant, with treatment, may be expected to attain fitness for purposes of fitness determinations from one year to no longer than the length of sentence if convicted of the most serious offense. If an unfit defendant refuses psychotropic medication, allows the medication to be administered over the defendant's objections as provided in the Mental Health and Developmental Disabilities Code. Allows any unfit defendant in the Department of Human Services custody (rather than only those ordered into s secure setting by the court) to be transported to court hearings or other necessary appointments
off facility grounds
by personnel of
the Department, placed in security devices
or otherwise secured during the period of transportation to assure
secure transport of the defendant and the safety of Department
of Human Services personnel and others. Effective immediately.
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| | A BILL FOR |
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| 1 | | AN ACT concerning criminal law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Code of Criminal Procedure of 1963 is | 5 | | amended by changing Sections 104-17, 104-18, 104-20, 104-21, | 6 | | 104-23, and 104-31 as follows:
| 7 | | (725 ILCS 5/104-17) (from Ch. 38, par. 104-17)
| 8 | | Sec. 104-17. Commitment for Treatment; Treatment Plan.
| 9 | | (a) If the defendant
is eligible to be or has been released | 10 | | on bail or on his own recognizance,
the court shall select the | 11 | | least physically restrictive form of treatment
therapeutically | 12 | | appropriate and consistent with the treatment plan.
| 13 | | (b) If the defendant's disability is mental, the court may | 14 | | order him placed
for treatment in the custody of the Department | 15 | | of Human Services, or the court may order him placed in
the | 16 | | custody of any other
appropriate public or private mental | 17 | | health facility or treatment program
which has agreed to | 18 | | provide treatment to the defendant. If the defendant
is placed | 19 | | in the custody of the Department of Human Services, the | 20 | | defendant shall be placed in a
secure setting unless the
court | 21 | | determines that
there are compelling reasons why such placement | 22 | | is not necessary . During
the period of time required to | 23 | | determine the appropriate placement the
defendant shall remain |
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| 1 | | in jail. If upon the completion of the placement process the | 2 | | Department of Human Services determines that the defendant is | 3 | | currently fit to stand trial, it shall immediately notify the | 4 | | court and shall submit a written report within 7 days. In that | 5 | | circumstance the placement shall be held pending a court | 6 | | hearing on the Department's report. Otherwise, upon completion | 7 | | of the placement process, the
sheriff shall be notified and | 8 | | shall transport the defendant to the designated
facility. The | 9 | | placement may be ordered either on an inpatient or an | 10 | | outpatient
basis.
| 11 | | (c) If the defendant's disability is physical, the court | 12 | | may order him
placed under the supervision of the Department of | 13 | | Human
Services
which shall place and maintain the defendant in | 14 | | a suitable treatment facility
or program, or the court may | 15 | | order him placed in an appropriate public or
private facility | 16 | | or treatment program which has agreed to provide treatment
to | 17 | | the defendant. The placement may be ordered either on an | 18 | | inpatient or
an outpatient basis.
| 19 | | (d) The clerk of the circuit court shall transmit to the | 20 | | Department, agency
or institution, if any, to which the | 21 | | defendant is remanded for treatment, the
following:
| 22 | | (1) a certified copy of the order to undergo treatment;
| 23 | | (2) the county and municipality in which the offense | 24 | | was committed;
| 25 | | (3) the county and municipality in which the arrest | 26 | | took place; |
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| 1 | | (4) a copy of the arrest report, criminal charges, | 2 | | arrest record, jail record, and the report prepared under | 3 | | Section 104-15; and
| 4 | | (5) all additional matters which the Court directs the | 5 | | clerk to transmit.
| 6 | | (e) Within 30 days of entry of an order to undergo | 7 | | treatment, the person
supervising the defendant's treatment | 8 | | shall file with the court, the State,
and the defense a report | 9 | | assessing the facility's or program's capacity
to provide | 10 | | appropriate treatment for the defendant and indicating his | 11 | | opinion
as to the probability of the defendant's attaining | 12 | | fitness within a period
of time one year from the date of the | 13 | | finding of unfitness. For a defendant charged with a felony, | 14 | | the period of time shall be one year. For a defendant charged | 15 | | with a misdemeanor, the period of time shall be no longer than | 16 | | the sentence if convicted of the most serious offense. If the | 17 | | report indicates
that there is a substantial probability that | 18 | | the defendant will attain fitness
within the time period, the | 19 | | treatment supervisor shall also file a treatment
plan which | 20 | | shall include:
| 21 | | (1) A diagnosis of the defendant's disability;
| 22 | | (2) A description of treatment goals with respect to | 23 | | rendering the
defendant
fit, a specification of the | 24 | | proposed treatment modalities, and an estimated
timetable | 25 | | for attainment of the goals;
| 26 | | (3) An identification of the person in charge of |
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| 1 | | supervising the
defendant's
treatment.
| 2 | | (Source: P.A. 95-296, eff. 8-20-07; 96-310, eff. 8-11-09.)
| 3 | | (725 ILCS 5/104-18) (from Ch. 38, par. 104-18)
| 4 | | Sec. 104-18. Progress Reports.) | 5 | | (a) The treatment supervisor shall submit
a written | 6 | | progress report to the court, the State, and the defense:
| 7 | | (1) At least 7 days prior to the date for any hearing | 8 | | on the issue of
the defendant's fitness;
| 9 | | (2) Whenever he believes that the defendant has | 10 | | attained fitness;
| 11 | | (3) Whenever he believes that there is not a | 12 | | substantial probability that
the defendant will attain | 13 | | fitness, with treatment, within the time period set in | 14 | | subsection (e) of Section 104-17 of this Code one year from
| 15 | | the date of the original finding of unfitness.
| 16 | | (b) The progress report shall contain:
| 17 | | (1) The clinical findings of the treatment supervisor | 18 | | and the facts upon
which the findings are based;
| 19 | | (2) The opinion of the treatment supervisor as to | 20 | | whether the defendant
has attained fitness or as to whether | 21 | | the defendant is making progress,
under treatment, toward | 22 | | attaining fitness within the time period set in subsection | 23 | | (e) of Section 104-17 of this Code one year from the date
| 24 | | of the original finding of unfitness;
| 25 | | (3) If the defendant is receiving medication, |
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| 1 | | information from the prescribing
physician indicating the | 2 | | type, the dosage and the effect of the medication
on the | 3 | | defendant's appearance, actions and demeanor.
| 4 | | (c) Whenever the court is sent a report from the supervisor | 5 | | of the defendant's treatment under paragraph (2) of subsection | 6 | | (a) of this Section, the treatment provider shall arrange with | 7 | | the court for the return of the defendant to the county jail | 8 | | before the time frame specified in subsection (a) of Section | 9 | | 104-20. This subsection (c) is inoperative on and after January | 10 | | 1, 2014. | 11 | | (Source: P.A. 97-1020, eff. 8-17-12.)
| 12 | | (725 ILCS 5/104-20) (from Ch. 38, par. 104-20)
| 13 | | Sec. 104-20. Ninety-Day Hearings; Continuing Treatment.) | 14 | | (a) Upon entry
or continuation of any order to undergo | 15 | | treatment, the court shall set a
date for hearing to reexamine | 16 | | the issue of the defendant's fitness not more
than 90 days | 17 | | thereafter. In addition, whenever the court receives a report
| 18 | | from the supervisor of the defendant's treatment pursuant to | 19 | | subparagraph
(2) or (3) of paragraph (a) of Section 104-18, the | 20 | | court shall forthwith
set the matter for a first hearing within | 21 | | 14 days unless good cause is demonstrated why the hearing | 22 | | cannot be held. On the date set or upon conclusion of the | 23 | | matter
then pending before it, the court, sitting without a | 24 | | jury, shall conduct
a hearing, unless waived by the defense, | 25 | | and shall determine:
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| 1 | | (1) Whether the defendant is fit to stand trial or to | 2 | | plead; and if not,
| 3 | | (2) Whether the defendant is making progress under | 4 | | treatment toward attainment
of fitness within the time | 5 | | period set in subsection (e) of Section 104-17 of this Code | 6 | | one year from the date of the original finding
of | 7 | | unfitness.
| 8 | | (b) If the court finds the defendant to be fit pursuant to | 9 | | this Section,
the court shall set the matter for trial; | 10 | | provided that if the defendant
is in need of continued care or | 11 | | treatment and the supervisor of the defendant's
treatment | 12 | | agrees to continue to provide it, the court may enter any order
| 13 | | it deems appropriate for the continued care or treatment of the | 14 | | defendant
by the facility or program pending the conclusion of | 15 | | the criminal proceedings.
| 16 | | (c) If the court finds that the defendant is still unfit | 17 | | but that he is
making progress toward attaining fitness, the | 18 | | court may continue or modify
its original treatment order | 19 | | entered pursuant to Section 104-17.
| 20 | | (d) If the court finds that the defendant is still unfit | 21 | | and that he is
not making progress toward attaining fitness | 22 | | such that there is not a
substantial probability that he will | 23 | | attain fitness within the time period set in subsection (e) of | 24 | | Section 104-17 of this Code one year from
the date of the | 25 | | original finding of unfitness, the court shall proceed pursuant
| 26 | | to Section 104-23. However, if the defendant is in need of |
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| 1 | | continued care
and treatment and the supervisor of the | 2 | | defendant's treatment agrees to
continue to provide it, the | 3 | | court may enter any order it deems appropriate
for the | 4 | | continued care or treatment by the facility or program pending | 5 | | the
conclusion of the criminal proceedings.
| 6 | | (Source: P.A. 97-37, eff. 6-28-11.)
| 7 | | (725 ILCS 5/104-21) (from Ch. 38, par. 104-21)
| 8 | | Sec. 104-21. Medication.
| 9 | | (a) A defendant who is receiving psychotropic drugs
shall | 10 | | not be presumed to be unfit to stand trial
solely by virtue of | 11 | | the receipt of those drugs or medications.
| 12 | | (b) Whenever a defendant who is receiving medication under | 13 | | medical direction
is transferred between a place of custody and | 14 | | a treatment facility or program,
a written report from the | 15 | | prescribing physician shall accompany the defendant.
The | 16 | | report shall state the type and dosage of the defendant's | 17 | | medication
and the duration of the prescription. The chief | 18 | | officer of the place of
custody or the treatment supervisor at | 19 | | the facility or program shall insure
that such medication is | 20 | | provided according to the directions of the prescribing
| 21 | | physician or until superseded by order of a physician who has | 22 | | examined the
defendant.
| 23 | | (c) If a defendant refuses psychotropic medication, it may | 24 | | be administered over the defendant's objections in accord with | 25 | | the Mental Health and Developmental Disabilities Code. If court |
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| 1 | | authorized medications are sought, the petition, prepared in | 2 | | accord with Section 2-107.1 of the Mental Health and | 3 | | Developmental Disabilities Code may be filed in the county | 4 | | where the defendant is located or with the court having | 5 | | jurisdiction over the defendant. | 6 | | (Source: P.A. 89-428, eff. 12-13-95; 89-689, eff. 12-31-96.)
| 7 | | (725 ILCS 5/104-23) (from Ch. 38, par. 104-23)
| 8 | | Sec. 104-23. Unfit defendants. Cases involving an unfit | 9 | | defendant who
demands a discharge hearing or a defendant who | 10 | | cannot become fit to stand
trial and for whom no special | 11 | | provisions or assistance can compensate for
his disability and | 12 | | render him fit shall proceed in the following manner:
| 13 | | (a) Upon a determination that there is not a substantial | 14 | | probability
that the defendant will attain fitness within the | 15 | | time period set in subsection (e) of Section 104-17 of this | 16 | | Code one year from the original
finding of unfitness, a | 17 | | defendant or the attorney for the defendant
may move for a | 18 | | discharge hearing pursuant to the provisions of Section 104-25.
| 19 | | The discharge hearing shall be held within 120 days of the | 20 | | filing of a
motion for a discharge hearing, unless the delay is | 21 | | occasioned by the defendant.
| 22 | | (b) If at any time the court determines that there is not a | 23 | | substantial
probability that the defendant will become fit to | 24 | | stand trial or to plead
within the time period set in | 25 | | subsection (e) of Section 104-17 of this Code one year from the |
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| 1 | | date of the original finding of unfitness,
or if at the end of | 2 | | the time period set in subsection (e) of Section 104-17 of this | 3 | | Code one year from that date the court finds the defendant
| 4 | | still unfit and for whom no special provisions or assistance | 5 | | can compensate
for his disabilities and render him fit, the | 6 | | State shall request the court:
| 7 | | (1) To set the matter for hearing pursuant to Section | 8 | | 104-25 unless
a hearing has already been held pursuant to | 9 | | paragraph (a) of this Section; or
| 10 | | (2) To release the defendant from custody and to | 11 | | dismiss with prejudice
the charges against him; or
| 12 | | (3) To remand the defendant to the custody of the | 13 | | Department of
Human Services and order a
hearing to be | 14 | | conducted
pursuant to the provisions of the Mental Health | 15 | | and Developmental Disabilities
Code, as now or hereafter | 16 | | amended. The Department of Human Services shall have 7 days | 17 | | from the
date it receives the
defendant to prepare and file | 18 | | the necessary petition and certificates that are
required | 19 | | for commitment under the Mental Health and Developmental | 20 | | Disabilities
Code. If the defendant is committed to the
| 21 | | Department of Human Services pursuant to such
hearing, the | 22 | | court
having jurisdiction over the criminal matter shall | 23 | | dismiss the charges against
the defendant, with the leave | 24 | | to reinstate. In such cases the Department of Human | 25 | | Services shall notify the court,
the State's attorney and | 26 | | the defense attorney upon the discharge of the
defendant. A |
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| 1 | | former defendant so committed
shall be treated in the same | 2 | | manner as any other civilly committed patient
for all | 3 | | purposes including admission, selection of the place of | 4 | | treatment
and the treatment modalities, entitlement to | 5 | | rights and privileges, transfer,
and discharge. A | 6 | | defendant who is not committed shall be remanded to the
| 7 | | court having jurisdiction of the criminal matter for | 8 | | disposition pursuant
to subparagraph (1) or (2) of | 9 | | paragraph (b) of this Section.
| 10 | | (c) If the defendant is restored to fitness and the | 11 | | original charges
against him are reinstated, the speedy trial | 12 | | provisions of Section 103-5
shall commence to run.
| 13 | | (Source: P.A. 89-439, eff. 6-1-96; 89-507, eff. 7-1-97.)
| 14 | | (725 ILCS 5/104-31) (from Ch. 38, par. 104-31)
| 15 | | Sec. 104-31. No defendant placed in a setting of the | 16 | | Department of
Human Services pursuant to
the provisions of | 17 | | Sections 104-17, 104-25, or 104-26 shall be permitted outside
| 18 | | the facility's
housing unit unless escorted or accompanied by | 19 | | personnel of the Department of
Human Services or authorized by | 20 | | court order.
Any defendant placed in a secure setting pursuant | 21 | | to this Section ,
transported to court hearings or other | 22 | | necessary appointments
off facility grounds
by personnel of
the | 23 | | Department of Human Services, may be
placed in security devices
| 24 | | or otherwise secured during the period of transportation to | 25 | | assure
secure transport of the defendant and the safety of |
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| 1 | | Department
of Human Services personnel and others. These | 2 | | security measures
shall not constitute restraint as defined in | 3 | | the Mental Health and
Developmental Disabilities Code.
Nor | 4 | | shall
any defendant
be permitted any off-grounds privileges, | 5 | | either with or without escort by
personnel of the Department of | 6 | | Human Services or ,
any unsupervised on-ground privileges, or | 7 | | placement in a non-secure setting unless such off-grounds or
| 8 | | unsupervised on-grounds privileges , or placement in a | 9 | | non-secure setting have been approved by specific court
order, | 10 | | which order may include such conditions on the defendant as the
| 11 | | court may deem appropriate and necessary to reasonably assure | 12 | | the
defendant's satisfactory progress in treatment and the | 13 | | safety of the defendant
or others. Whenever the court receives | 14 | | a report from the supervisor of the defendant's treatment | 15 | | recommending the defendant for any off-grounds or unsupervised | 16 | | on-grounds privileges, or placement in a non-secure setting, | 17 | | the court shall set the matter for a first hearing within 21 | 18 | | days unless good cause is demonstrated why the hearing cannot | 19 | | be held.
The changes made to this Section by
this amendatory | 20 | | Act of the 96th General Assembly are declarative of existing
| 21 | | law and shall not be construed as a new enactment.
| 22 | | (Source: P.A. 95-296, eff. 8-20-07; 96-1069, eff. 7-16-10.)
| 23 | | Section 10. The Unified Code of Corrections is amended by | 24 | | changing Section 5-2-4 as follows:
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| 1 | | (730 ILCS 5/5-2-4) (from Ch. 38, par. 1005-2-4)
| 2 | | Sec. 5-2-4. Proceedings after Acquittal by Reason of | 3 | | Insanity.
| 4 | | (a) After a finding or verdict of not guilty by reason of | 5 | | insanity
under Sections 104-25, 115-3 or 115-4 of the Code of | 6 | | Criminal Procedure
of 1963, the defendant shall be ordered to | 7 | | the Department of Human Services for
an evaluation as to
| 8 | | whether he is in need of mental health
services. The order
| 9 | | shall specify whether the evaluation shall be conducted on an | 10 | | inpatient or
outpatient basis. If the evaluation is to be | 11 | | conducted on an inpatient
basis, the defendant shall be placed | 12 | | in a secure setting unless the Court
determines that there are | 13 | | compelling reasons why such placement is not
necessary . With | 14 | | the court order for evaluation shall be sent a copy of the | 15 | | arrest report, criminal charges, arrest record, jail record, | 16 | | any report prepared under Section 115-6 of the Code of Criminal | 17 | | Procedure of 1963, and any victim impact statement prepared | 18 | | under Section 6 of the Rights of Crime Victims and Witnesses | 19 | | Act.
After the evaluation and during the period of time | 20 | | required to
determine the appropriate placement, the defendant | 21 | | shall
remain in jail.
Individualized placement evaluations by | 22 | | the Department of Human Services determine the most appropriate | 23 | | setting for forensic treatment based upon a number of factors | 24 | | including mental health diagnosis, proximity to surviving | 25 | | victims, security need, age, gender, and proximity to family. | 26 | | Upon completion of the placement process the sheriff shall be |
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| 1 | | notified and
shall transport the defendant to the designated | 2 | | facility.
| 3 | | The Department shall provide the Court with a report of its | 4 | | evaluation
within 30 days of the date of this order. The Court | 5 | | shall hold a hearing
as provided under the Mental Health and | 6 | | Developmental Disabilities Code to
determine if the individual | 7 | | is:
(a)
in need of mental health services on an inpatient | 8 | | basis; (b) in
need of
mental health services on an outpatient | 9 | | basis; (c) a person not in
need of
mental health services. The | 10 | | Court shall enter its findings.
| 11 | | If the defendant is found to be in
need
of mental health | 12 | | services on an inpatient care basis, the Court shall order the
| 13 | | defendant to the Department of Human Services.
The defendant | 14 | | shall be placed in a secure setting unless the Court determines
| 15 | | that there are compelling reasons why such placement is not | 16 | | necessary . Such
defendants placed in a secure setting shall not | 17 | | be permitted outside the
facility's housing unit unless | 18 | | escorted or accompanied by personnel of the
Department of Human | 19 | | Services or with the prior approval of the Court for
| 20 | | unsupervised
on-grounds privileges as provided
herein.
Any | 21 | | defendant placed in a secure setting pursuant to this Section,
| 22 | | transported to court hearings or other necessary appointments
| 23 | | off facility grounds
by personnel of
the Department of Human | 24 | | Services, shall be
placed in security devices
or otherwise | 25 | | secured during the period of transportation to assure
secure | 26 | | transport of the defendant and the safety of Department
of |
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| 1 | | Human Services personnel and others. These security measures
| 2 | | shall not constitute restraint as defined in the Mental Health | 3 | | and
Developmental Disabilities Code.
If the defendant is found | 4 | | to be in need of mental health services,
but not on an | 5 | | inpatient care basis, the Court shall conditionally release
the | 6 | | defendant, under such conditions as set forth in this Section | 7 | | as will
reasonably assure the defendant's satisfactory | 8 | | progress and participation
in treatment or
rehabilitation and | 9 | | the safety of the defendant and others. If the
Court
finds the | 10 | | person not in need of mental health services, then the Court
| 11 | | shall order the defendant discharged from custody.
| 12 | | (a-1) Definitions. For the purposes of this Section:
| 13 | | (A) (Blank).
| 14 | | (B) "In need of mental health services on an inpatient | 15 | | basis" means: a
defendant who has been found not guilty by | 16 | | reason of insanity but who due to mental illness is
| 17 | | reasonably expected to inflict
serious physical harm upon | 18 | | himself or another and who would benefit from
inpatient | 19 | | care or is in need of inpatient care.
| 20 | | (C) "In need of mental health services on an outpatient | 21 | | basis" means:
a defendant who has been found not guilty by | 22 | | reason of insanity who is not in need of mental health | 23 | | services on
an inpatient basis, but is in need of | 24 | | outpatient care, drug and/or alcohol
rehabilitation | 25 | | programs, community adjustment programs, individual, | 26 | | group,
or family therapy, or chemotherapy.
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| 1 | | (D) "Conditional Release" means: the release from | 2 | | either the custody
of the Department of Human Services
or | 3 | | the custody of the Court of a person who has been found not | 4 | | guilty by
reason of insanity under such conditions as the | 5 | | Court may impose which
reasonably assure the defendant's | 6 | | satisfactory progress in
treatment or habilitation and the | 7 | | safety of the defendant and others. The
Court shall | 8 | | consider such terms and conditions which may include, but | 9 | | need
not be limited to, outpatient care, alcoholic and drug | 10 | | rehabilitation programs,
community adjustment programs, | 11 | | individual, group, family, and chemotherapy,
random | 12 | | testing to ensure the defendant's timely and continuous | 13 | | taking of any
medicines prescribed
to control or manage his | 14 | | or her conduct or mental state, and
periodic checks with | 15 | | the legal authorities and/or the Department of Human
| 16 | | Services.
The Court may order as a condition of conditional | 17 | | release that the
defendant not contact the victim of the | 18 | | offense that
resulted in the finding or
verdict of not | 19 | | guilty by reason of insanity or any other person. The Court | 20 | | may
order the
Department of
Human Services to provide care | 21 | | to any
person conditionally released under this Section. | 22 | | The Department may contract
with any public or private | 23 | | agency in order to discharge any responsibilities
imposed | 24 | | under this Section. The Department shall monitor the | 25 | | provision of
services to persons conditionally released | 26 | | under this Section and provide
periodic reports to the |
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| 1 | | Court concerning the services and the condition of the
| 2 | | defendant.
Whenever a person is conditionally released | 3 | | pursuant to this Section, the
State's Attorney for the | 4 | | county in which the hearing is held shall designate in
| 5 | | writing the name, telephone number, and address of a person | 6 | | employed by him or
her who
shall be notified in the event | 7 | | that either the reporting agency or the
Department decides | 8 | | that the conditional release of the defendant should be
| 9 | | revoked or modified pursuant to subsection (i) of this | 10 | | Section. Such
conditional release shall be for
a period of | 11 | | five years. However, the defendant, the person or
facility
| 12 | | rendering the treatment, therapy, program or outpatient | 13 | | care, the
Department, or the
State's Attorney may petition | 14 | | the Court for an extension of
the conditional
release | 15 | | period for an additional 5 years. Upon receipt of such a
| 16 | | petition, the Court shall hold a hearing consistent with | 17 | | the provisions of
paragraph (a), this paragraph (a-1),
and | 18 | | paragraph (f) of this Section, shall determine
whether the | 19 | | defendant should continue to be subject to the terms of
| 20 | | conditional release, and shall enter an order either | 21 | | extending the
defendant's period of conditional release | 22 | | for an additional
5
year period or discharging the | 23 | | defendant.
Additional 5-year periods of conditional | 24 | | release may be ordered following a
hearing as provided in | 25 | | this Section. However,
in no event shall the defendant's
| 26 | | period of conditional release continue beyond the maximum |
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| 1 | | period of
commitment ordered by the Court pursuant to | 2 | | paragraph (b) of this Section. These provisions for
| 3 | | extension of conditional release shall only apply to | 4 | | defendants
conditionally released on or after August 8, | 5 | | 2003. However the extension
provisions of Public Act | 6 | | 83-1449 apply only to defendants charged
with a forcible | 7 | | felony.
| 8 | | (E) "Facility director" means the chief officer of a | 9 | | mental health or
developmental disabilities facility or | 10 | | his or her designee or the supervisor of
a program of | 11 | | treatment or habilitation or his or her designee. | 12 | | "Designee" may
include a physician, clinical psychologist, | 13 | | social worker, nurse, or clinical
professional counselor.
| 14 | | (b) If the Court finds the defendant in need of mental | 15 | | health services on an
inpatient basis, the
admission, | 16 | | detention, care, treatment or habilitation, treatment plans,
| 17 | | review proceedings, including review of treatment and | 18 | | treatment plans, and
discharge of the defendant after such | 19 | | order shall be under the
Mental Health and Developmental | 20 | | Disabilities Code, except that the
initial order for admission | 21 | | of a defendant acquitted of a felony by
reason of insanity | 22 | | shall be for an indefinite period of time. Such period
of | 23 | | commitment shall not exceed the maximum
length of time that the | 24 | | defendant would have been required to serve,
less credit for | 25 | | good behavior as provided in Section 5-4-1 of the Unified
Code | 26 | | of Corrections, before becoming eligible for
release had
he |
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| 1 | | been convicted of and received the maximum sentence for the | 2 | | most
serious crime for which he has been acquitted by reason of | 3 | | insanity. The
Court shall determine the maximum period of | 4 | | commitment by an appropriate
order. During this period of time, | 5 | | the defendant shall not be permitted
to be in the community in | 6 | | any manner, including but not limited to off-grounds
| 7 | | privileges, with or without escort by personnel of the | 8 | | Department of Human
Services, unsupervised on-grounds | 9 | | privileges,
discharge or conditional or temporary release, | 10 | | except by a plan as provided in
this Section. In no event shall | 11 | | a defendant's continued unauthorized
absence be a basis for | 12 | | discharge. Not more than 30 days after admission
and every 60 | 13 | | days thereafter so long as the initial order
remains in effect, | 14 | | the facility director shall file a treatment plan report
in | 15 | | writing with the court
and forward a copy of the treatment plan | 16 | | report to the clerk of the
court, the State's Attorney, and the | 17 | | defendant's attorney, if the defendant is
represented by | 18 | | counsel,
or to a person authorized by
the defendant under the
| 19 | | Mental Health and Developmental Disabilities Confidentiality | 20 | | Act to be sent a
copy of the report. The report shall include | 21 | | an opinion
as to whether the
defendant is currently in need of | 22 | | mental
health services on an inpatient basis or in need of | 23 | | mental health services
on
an outpatient basis. The report shall | 24 | | also summarize the basis for those
findings and provide a | 25 | | current summary of the following items from the
treatment plan: | 26 | | (1) an assessment of the defendant's treatment needs, (2) a
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| 1 | | description of the services recommended for treatment, (3) the | 2 | | goals of each
type of element of service, (4) an anticipated | 3 | | timetable for the accomplishment
of the goals, and (5) a | 4 | | designation of the qualified professional responsible
for the | 5 | | implementation of the plan.
The report may also include | 6 | | unsupervised on-grounds
privileges, off-grounds privileges | 7 | | (with or without escort by personnel of the
Department of Human | 8 | | Services), home visits and
participation in work
programs, but | 9 | | only where such privileges have been approved by specific court
| 10 | | order, which order may include such conditions on the defendant | 11 | | as the
Court may deem appropriate and necessary to reasonably | 12 | | assure the defendant's
satisfactory progress in treatment and | 13 | | the safety of the defendant and others.
| 14 | | (c) Every defendant acquitted of a felony by reason of | 15 | | insanity and
subsequently found to be in need of
mental health | 16 | | services shall be represented by counsel in all proceedings | 17 | | under
this Section and under the Mental Health and | 18 | | Developmental Disabilities Code.
| 19 | | (1) The Court shall appoint as counsel the public | 20 | | defender or an
attorney licensed by this State.
| 21 | | (2) Upon filing with the Court of a verified statement | 22 | | of legal
services rendered by the private attorney | 23 | | appointed pursuant to
paragraph (1) of this subsection, the | 24 | | Court shall determine a reasonable
fee for such services. | 25 | | If the defendant is unable to pay the fee, the
Court shall | 26 | | enter an order upon the State to pay the entire fee or such
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| 1 | | amount as the defendant is unable to pay from funds | 2 | | appropriated by the
General Assembly for that purpose.
| 3 | | (d) When the facility director determines that:
| 4 | | (1) the defendant is no longer
in need of mental health | 5 | | services on an inpatient basis; and
| 6 | | (2) the defendant may be conditionally released | 7 | | because he
or she is still in need of mental health | 8 | | services or that the defendant
may be discharged as not in | 9 | | need of any mental health services; or
| 10 | | (3) (blank); the defendant no longer requires | 11 | | placement in a secure setting;
| 12 | | the facility director shall give written notice
to the Court, | 13 | | State's Attorney and defense attorney.
Such notice shall set | 14 | | forth in detail the basis for the recommendation of
the | 15 | | facility director, and specify clearly the recommendations, if | 16 | | any,
of the facility director, concerning conditional release.
| 17 | | Any recommendation for conditional release shall include an | 18 | | evaluation of
the defendant's need for psychotropic | 19 | | medication, what provisions should be
made, if any, to ensure | 20 | | that the defendant will continue to receive
psychotropic | 21 | | medication following discharge, and what provisions should be | 22 | | made
to assure the safety of the defendant and others in the | 23 | | event the defendant is
no longer receiving psychotropic | 24 | | medication.
Within 30 days of
the notification by the facility | 25 | | director, the Court shall set a hearing and
make a finding as | 26 | | to whether the defendant is:
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| 1 | | (i) (blank); or
| 2 | | (ii) in need of mental health services in the form of | 3 | | inpatient care; or
| 4 | | (iii) in need of mental health services but not subject | 5 | | to inpatient care;
or
| 6 | | (iv) no longer in need of mental health services; or
| 7 | | (v) (blank). no longer requires placement in a secure | 8 | | setting.
| 9 | | Upon finding by the Court, the Court shall enter its | 10 | | findings and such
appropriate order as provided in subsections | 11 | | (a) and (a-1) of this Section.
| 12 | | (e) A defendant admitted pursuant to this Section, or any | 13 | | person on
his behalf, may file a petition for treatment plan | 14 | | review , transfer to a
non-secure setting within the Department | 15 | | of Human Services
or discharge or conditional release under the
| 16 | | standards of this Section in the Court which rendered the | 17 | | verdict. Upon
receipt of a petition for treatment plan review , | 18 | | transfer to a non-secure
setting or discharge or conditional | 19 | | release, the Court shall set a hearing to
be held within 120 | 20 | | days. Thereafter, no new petition
may be filed for 180 days
| 21 | | without leave of the Court.
| 22 | | (f) The Court shall direct that notice of the time and | 23 | | place of the
hearing be served upon the defendant, the facility | 24 | | director, the State's
Attorney, and the defendant's attorney. | 25 | | If requested by either the State or the
defense or if the Court | 26 | | feels it is appropriate, an impartial examination
of the |
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| 1 | | defendant by a psychiatrist or clinical psychologist as defined | 2 | | in
Section 1-103 of the Mental Health and Developmental | 3 | | Disabilities Code who
is not in the employ of the Department of | 4 | | Human Services shall be ordered, and
the report considered at
| 5 | | the time of the hearing.
| 6 | | (g) The findings of the Court shall be established by clear | 7 | | and
convincing evidence. The burden of proof and the burden of | 8 | | going forth
with the evidence rest with the defendant or any | 9 | | person on the defendant's
behalf when a hearing is held to | 10 | | review
a petition filed by or on
behalf of the defendant. The | 11 | | evidence shall be presented in open
Court
with the right of | 12 | | confrontation and cross-examination.
Such evidence may | 13 | | include, but is not limited to:
| 14 | | (1) whether the defendant appreciates the harm caused | 15 | | by the defendant to
others and the community by his or her | 16 | | prior
conduct
that resulted in the finding of not guilty by | 17 | | reason of insanity;
| 18 | | (2) Whether the person appreciates the criminality of | 19 | | conduct similar to
the conduct for which he or she was | 20 | | originally charged in this matter;
| 21 | | (3) the current state of
the defendant's illness;
| 22 | | (4) what, if any, medications the defendant is taking | 23 | | to
control his or her mental illness;
| 24 | | (5) what, if any, adverse physical side effects
the | 25 | | medication has on the defendant;
| 26 | | (6) the length of time it would take for the |
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| 1 | | defendant's mental health to
deteriorate
if
the
defendant | 2 | | stopped taking prescribed medication;
| 3 | | (7) the defendant's history or potential for alcohol | 4 | | and drug abuse;
| 5 | | (8) the defendant's past criminal history;
| 6 | | (9) any specialized physical or medical needs of the | 7 | | defendant;
| 8 | | (10) any family participation or involvement expected | 9 | | upon release and
what is the willingness and ability of the | 10 | | family to participate or be
involved;
| 11 | | (11) the defendant's potential to be a danger to | 12 | | himself, herself, or
others; and
| 13 | | (12) any other factor or factors the Court deems | 14 | | appropriate.
| 15 | | (h) Before the court orders that the defendant be | 16 | | discharged or
conditionally released, it shall order the | 17 | | facility director to establish a
discharge plan that includes a | 18 | | plan for the defendant's shelter, support, and
medication. If | 19 | | appropriate, the court shall order that the facility director
| 20 | | establish a program to train the defendant in self-medication | 21 | | under standards
established by the Department of Human | 22 | | Services.
If the Court finds, consistent with the provisions of | 23 | | this Section,
that the defendant is no longer in need of mental
| 24 | | health services it shall order the facility director to | 25 | | discharge the
defendant. If the Court finds, consistent with | 26 | | the provisions of this
Section, that the defendant is in need |
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| 1 | | of mental
health services, and no longer in need of inpatient | 2 | | care, it shall order
the facility director to release the | 3 | | defendant under such conditions as the
Court deems appropriate | 4 | | and as provided by this Section. Such conditional
release shall | 5 | | be imposed for a period of 5 years as provided in
paragraph
(D) | 6 | | of subsection (a-1) and shall be
subject
to later modification | 7 | | by the Court as provided by this Section. If the
Court finds | 8 | | consistent with the provisions in this Section that the
| 9 | | defendant is in
need of mental health services on an inpatient | 10 | | basis, it shall order the
facility director not to discharge or | 11 | | release the defendant in accordance
with paragraph (b) of this | 12 | | Section.
| 13 | | (i) If within the period of the defendant's conditional | 14 | | release
the State's Attorney determines that the defendant has | 15 | | not fulfilled the
conditions of his or her release, the State's | 16 | | Attorney may petition the
Court
to
revoke or modify the | 17 | | conditional release of the defendant. Upon the filing of
such | 18 | | petition the defendant may be remanded to the custody of the | 19 | | Department,
or to any other mental health facility designated | 20 | | by the Department, pending
the resolution of the petition. | 21 | | Nothing in this Section shall prevent the
emergency admission | 22 | | of a defendant pursuant to Article VI of Chapter III of the
| 23 | | Mental Health
and Developmental Disabilities Code or the | 24 | | voluntary admission of the defendant
pursuant to Article IV of | 25 | | Chapter III of the Mental Health and Developmental
Disabilities
| 26 | | Code. If
the Court determines, after hearing evidence, that the |
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| 1 | | defendant has
not fulfilled the conditions of release, the | 2 | | Court shall order a hearing
to be held consistent with the | 3 | | provisions of paragraph (f) and (g) of this
Section. At such | 4 | | hearing, if the Court finds that the defendant is in need of | 5 | | mental health services on an inpatient
basis, it shall enter an | 6 | | order remanding him or her to the Department of
Human Services | 7 | | or other
facility. If the defendant is remanded to the | 8 | | Department of Human Services, he
or she shall be placed in
a | 9 | | secure setting unless the Court
determines that there are | 10 | | compelling reasons that such placement is not
necessary. If the
| 11 | | Court finds that the defendant continues to be in need of | 12 | | mental health
services but not on an inpatient basis, it may | 13 | | modify the conditions of
the original release in order to | 14 | | reasonably assure the defendant's satisfactory
progress in | 15 | | treatment and his or her safety and the safety of others in
| 16 | | accordance with the standards established in paragraph (D) of | 17 | | subsection (a-1). Nothing in
this Section shall limit a Court's | 18 | | contempt powers or any other powers of a
Court.
| 19 | | (j) An order of admission under this Section does not | 20 | | affect the
remedy of habeas corpus.
| 21 | | (k) In the event of a conflict between this Section and the | 22 | | Mental Health
and Developmental Disabilities Code or the Mental | 23 | | Health and Developmental
Disabilities Confidentiality Act, the | 24 | | provisions of this Section shall govern.
| 25 | | (l) This amendatory Act shall apply to all persons who have | 26 | | been found
not guilty by reason of insanity and who are |
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| 1 | | presently committed to the
Department of Mental Health and | 2 | | Developmental Disabilities (now the
Department of Human | 3 | | Services).
| 4 | | (m) The Clerk of the Court shall, after the entry of an | 5 | | order of transfer
to a non-secure setting of the Department of | 6 | | Human Services or discharge or
conditional release, transmit
a | 7 | | certified
copy of the order to the Department of Human | 8 | | Services, and the sheriff of the
county from which the
| 9 | | defendant was
admitted.
The Clerk of the Court shall also | 10 | | transmit a certified copy of the order of
discharge or | 11 | | conditional release to the Department of Human Services, to the | 12 | | sheriff of the county from which the defendant was admitted, to | 13 | | the Illinois Department of State Police, to
the proper law | 14 | | enforcement agency for the municipality
where the offense took
| 15 | | place, and to the sheriff of the county into which the | 16 | | defendant is
conditionally discharged. The Illinois Department | 17 | | of State Police shall
maintain a
centralized record of | 18 | | discharged or conditionally released defendants while
they are | 19 | | under court supervision for access and use of appropriate law
| 20 | | enforcement agencies.
| 21 | | (Source: P.A. 95-296, eff. 8-20-07; 95-331, eff. 8-21-07; | 22 | | 96-1138, eff. 7-21-10.)
| 23 | | Section 99. Effective date. This Act takes effect upon | 24 | | becoming law.
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