Full Text of SB2801 98th General Assembly
SB2801eng 98TH GENERAL ASSEMBLY |
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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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