20 ILCS 1807/76b

(20 ILCS 1807/76b)

Sec. 76b. Article 76b. Lack of mental capacity or mental responsibility; commitment of accused for examination and treatment.

(a) Persons incompetent to stand trial.

(1)(A) In general, no person may be brought to trial by court-martial if that person is presently suffering from a mental disease or defect rendering that person mentally incompetent to the extent that he or she is unable to understand the nature of the proceedings against them or to conduct or cooperate intelligently in the defense of the case.

(B) A person is presumed to have the capacity to stand trial unless the contrary is established.

(C) Determination of capacity of an accused to stand trial shall be made in accordance with Rule 909 (c), (d), and (e) of the Rules for Courts-Martial as described in the Manual for Courts-Martial, United States (2012 Edition), or as provided in any subsequent rule adopted in accordance with applicable law and regulation by the President of the United States, except that references in those rules to "the Attorney General" mean the Department of Human Services.

(2) An inquiry into the mental capacity or mental responsibility of the accused shall be conducted as provided in Rule 706 of the Rules for Courts-Martial as described in the Manual for Courts-Martial, United States (2012 Edition), or as provided in any subsequent rule adopted in accordance with applicable law and regulation by the President of the United States.

If the accused's incapacity is mental, the convening authority may order him or her to be placed for treatment in the custody of the Department of Human Services or the convening authority may order him or her to be placed in the custody of any other appropriate public or private mental health facility or treatment program which has agreed to provide treatment to the accused. If the accused is placed in the custody of the Department of Human Services, the accused may be placed in a secure setting. During the period of time required to determine the appropriate placement, the accused shall remain confined. If, upon the completion of the placement process, the Department of Human Services determines that the accused is currently fit to stand trial, the Department shall immediately notify the convening authority and shall submit a written report within 7 days. In that circumstance, the placement shall be held pending a court hearing on the Department's report. Otherwise, upon completion of the placement process, the sheriff shall be notified and shall transport the accused to the designated facility. The placement may be ordered on either an inpatient or an outpatient basis.

In addition to other matters, the inquiry shall determine whether there is a substantial probability that the accused will attain mental responsibility to stand trial within one year if he or she is provided with a course of treatment.

(A) In the case of a general court-martial, if the official responsible for determining capacity to stand trial finds that there is not a substantial probability that the accused will attain mental responsibility within one year if he or she is provided with a course of treatment, the case shall proceed as provided in Section 104-23 of the Code of Criminal Procedure of 1963. In a special court-martial, the case shall proceed after the expiration of the maximum period of confinement authorized for the offense or offenses charged.

(B) If the official responsible for determining capacity to stand trial finds that there is a probability that the accused will attain mental responsibility within one year if he or she is provided with a course of treatment, or if the official is unable to determine whether a substantial probability exists, the accused shall be ordered to undergo treatment for the purpose of rendering him or her fit in accordance with subsections (b) or (c) of Section 104-17 of the Code of Criminal Procedure of 1963.

(1) Any references to "the court" in Sections 104-23 and 104-17 of the Code of Criminal Procedure of 1963 mean the general court-martial convening authority.

(2) The general court-martial convening authority shall, as necessary, transmit the information as provided in subsection (d) of Section 104-17 of the Code of Criminal Procedure of 1963.

(b) Persons found not guilty by reason of lack of mental responsibility.

(1) The accused is presumed to have been mentally responsible at the time of the alleged offense. This presumption continues until the accused establishes, by clear and convincing evidence, that he or she was not mentally responsible at the time of the alleged offense. A mental condition not amounting to a lack of mental responsibility under Article 50a of this Code is not an affirmative defense.

(2) If a question is raised concerning the mental responsibility of the accused, the military judge shall rule whether to direct an inquiry under Rule 706 of the Rules for Court-Martial as described in the Manual for Courts-Martial, United States (2012 Edition), or under any subsequent rule adopted in accordance with applicable law and regulation by the President of the United States. The issue of mental responsibility shall not be considered an interlocutory question.

(3) If a person is found not guilty only by reason of lack of mental responsibility, the case shall proceed in accordance with State law pertaining to persons acquitted by reason of insanity as provided in Section 5-2-4 of the Unified Code of Corrections. References within that Section to "the court" or "clerk of the court" mean the general court-martial convening authority.

(4) After a finding or verdict of not guilty only by reason of lack of mental responsibility, the accused shall be ordered to the Department of Human Services for an evaluation as to whether he or she is in need of mental health services. The order shall specify whether the evaluation shall be conducted on an inpatient or outpatient basis. If the evaluation is to be conducted on an inpatient basis, the accused shall be placed in a secure setting. A copy of the law enforcement reports, criminal charges, arrest record, jail record, record of trial, and any victim impact statement shall be sent with the order for evaluation. After the evaluation and during the period of time required to determine the appropriate placement, the accused shall remain in confinement. Individualized placement evaluations performed by the Department of Human Services shall be used to determine the most appropriate setting for forensic treatment based upon a number of factors including mental health diagnosis, proximity to surviving victims, security need, age, gender, and proximity to family. Upon completion of the placement process, the sheriff shall be notified and shall transport the accused to the designated facility.

(Source: P.A. 100-1030, eff. 8-22-18.)