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| [ Introduced ] | [ House Amendment 001 ] |
92_HB0068eng HB0068 Engrossed LRB9200829RCsb 1 AN ACT in relation to defendants found not guilty by 2 reason of insanity. 3 Be it enacted by the People of the State of Illinois, 4 represented in the General Assembly: 5 Section 5. The Unified Code of Corrections is amended by 6 changing Section 5-2-4 as follows: 7 (730 ILCS 5/5-2-4) (from Ch. 38, par. 1005-2-4) 8 Sec. 5-2-4. Proceedings after Acquittal by Reason of 9 Insanity. 10 (a) After a finding or verdict of not guilty by reason 11 of insanity under Sections 104-25, 115-3 or 115-4 of The Code 12 of Criminal Procedure of 1963, the defendant shall be ordered 13 to the Department of Human Services for an evaluation as to 14 whether he is subject to involuntary admission or in need of 15 mental health services. The order shall specify whether the 16 evaluation shall be conducted on an inpatient or outpatient 17 basis. If the evaluation is to be conducted on an inpatient 18 basis, the defendant shall be placed in a secure setting 19 unless the Court determines that there are compelling reasons 20 why such placement is not necessary. After the evaluation and 21 during the period of time required to determine the 22 appropriate placement, the defendant shall remain in jail. 23 Upon completion of the placement process the sheriff shall 24 be notified and shall transport the defendant to the 25 designated facility. 26 The Department shall provide the Court with a report of 27 its evaluation within 30 days of the date of this order. The 28 Court shall hold a hearing as provided under the Mental 29 Health and Developmental Disabilities Code to determine if 30 the individual is: (a) subject to involuntary admission; (b) 31 in need of mental health services on an inpatient basis; (c) HB0068 Engrossed -2- LRB9200829RCsb 1 in need of mental health services on an outpatient basis; (d) 2 a person not in need of mental health services. The Court 3 shall enter its findings. 4 If the defendant is found to be subject to involuntary 5 admission or in need of mental health services on an 6 inpatient care basis, the Court shall order the defendant to 7 the Department of Human Services. The defendant shall be 8 placed in a secure setting unless the Court determines that 9 there are compelling reasons why such placement is not 10 necessary. Such defendants placed in a secure setting shall 11 not be permitted outside the facility's housing unit unless 12 escorted or accompanied by personnel of the Department of 13 Human Services or with the prior approval of the Court for 14 unsupervised on-grounds privileges as provided herein. Any 15 defendant placed in a secure setting pursuant to this 16 Section, transported to court hearings or other necessary 17 appointments off facility grounds by personnel of the 18 Department of Human Services, may be placed in security 19 devices or otherwise secured during the period of 20 transportation to assure secure transport of the defendant 21 and the safety of Department of Human Services personnel and 22 others. These security measures shall not constitute 23 restraint as defined in the Mental Health and Developmental 24 Disabilities Code. If the defendant is found to be in need of 25 mental health services, but not on an inpatient care basis, 26 the Court shall conditionally release the defendant, under 27 such conditions as set forth in this Section as will 28 reasonably assure the defendant's satisfactory progress in 29 treatment or rehabilitation and the safety of the defendant 30 or others. If the Court finds the person not in need of 31 mental health services, then the Court shall order the 32 defendant discharged from custody. 33 (1) Definitions: For the purposes of this Section: 34 (A) "Subject to involuntary admission" means: a HB0068 Engrossed -3- LRB9200829RCsb 1 defendant has been found not guilty by reason of 2 insanity; and 3 (i) who is mentally ill and who because of his 4 mental illness is reasonably expected to inflict 5 serious physical harm upon himself or another in the 6 near future; or 7 (ii) who is mentally ill and who because of 8 his illness is unable to provide for his basic 9 physical needs so as to guard himself from serious 10 harm. 11 (B) "In need of mental health services on an 12 inpatient basis" means: a defendant who has been found 13 not guilty by reason of insanity who is not subject to 14 involuntary admission but who is reasonably expected to 15 inflict serious physical harm upon himself or another and 16 who would benefit from inpatient care or is in need of 17 inpatient care. 18 (C) "In need of mental health services on an 19 outpatient basis" means: a defendant who has been found 20 not guilty by reason of insanity who is not subject to 21 involuntary admission or in need of mental health 22 services on an inpatient basis, but is in need of 23 outpatient care, drug and/or alcohol rehabilitation 24 programs, community adjustment programs, individual, 25 group, or family therapy, or chemotherapy. 26 (D) "Conditional Release" means: the release from 27 either the custody of the Department of Human Services or 28 the custody of the Court of a person who has been found 29 not guilty by reason of insanity under such conditions as 30 the Court may impose which reasonably assure the 31 defendant's satisfactory progress in treatment or 32 habilitation and the safety of the defendant and others. 33 The Court shall consider such terms and conditions which 34 may include, but need not be limited to, outpatient care, HB0068 Engrossed -4- LRB9200829RCsb 1 alcoholic and drug rehabilitation programs, community 2 adjustment programs, individual, group, family, and 3 chemotherapy, periodic checks with the legal authorities 4 and/or the Department of Human Services. The Court may 5 order the Department of Human Services to provide care to 6 any person conditionally released under this Section. 7 The Department may contract with any public or private 8 agency in order to discharge any responsibilities imposed 9 under this Section. The contracting process shall 10 require services to be identified in a treatment plan, 11 the resource requirements to provide those services, the 12 parties responsible for providing those resources, and 13 the process for securing future treatment and supportive 14 service and resource needs. The Department shall monitor 15 the provision of services to persons conditionally 16 released under this Section and provide periodic reports 17 to the Court concerning the services and the condition of 18 the defendant. Whenever a person is conditionally 19 released pursuant to this Section, the State's Attorney 20 for the county in which the hearing is held shall 21 designate in writing the name, telephone number, and 22 address of a person employed by him or her who shall be 23 notified in the event that either the reporting agency or 24 the Department decide that the conditional release of the 25 defendant should be revoked or modified pursuant to 26 subsection (i) of this SectionThe person or facility27rendering the outpatient care shall be required to28periodically report to the Court on the progress of the29defendant. Such conditional release shall be for a period 30 of five years. However,unlessthe defendant, the person 31 or facility rendering the treatment, therapy, program or 32 outpatient care, the Department or the State's Attorney 33 may petitionpetitionsthe Court for an extension of the 34 conditional release period for an additional 5threeHB0068 Engrossed -5- LRB9200829RCsb 1 years. Upon receipt of such a petition, the Court shall 2 hold a hearing consistent with the provisions of this 3 paragraph (a) and paragraph (f) of this Section, shall 4 determine whether the defendant should continue to be 5 subject to the terms of conditional release, and shall 6 enter an order either extending the defendant's period of 7 conditional release for ana singleadditional 5three8 year period or discharging the defendant. Additional 5 9 year periods of conditional release may be ordered 10 following a hearing as provided in this Section. 11 However, in no event shall the defendant's period of 12 conditional release continue beyond the maximum period of 13 commitment ordered by the Court pursuant to paragraph (b) 14 of this Sectionexceed eight years. These provisions for 15 extension of conditional release shall only apply to 16 defendants conditionally released on or after the 17 effective date of this amendatory Act of the 92nd General 18 AssemblyJuly 1, 1979. However the extension provisions 19 of Public Act 83-1449 apply only to defendants charged 20 with a forcible felony. 21 (E) "Facility director" means the chief officer of 22 a mental health or developmental disabilities facility or 23 his or her designee or the supervisor of a program of 24 treatment or habilitation or his or her designee. 25 "Designee" may include a physician, clinical 26 psychologist, social worker, or nurse. 27 (b) If the Court finds the defendant subject to 28 involuntary admission or in need of mental health services on 29 an inpatient basis, the admission, detention, care, treatment 30 or habilitation, treatment plans, review proceedings, 31 including review of treatment and treatment plans, and 32 discharge of the defendant after such order shall be under 33 the Mental Health and Developmental Disabilities Code, except 34 that the initial order for admission of a defendant acquitted HB0068 Engrossed -6- LRB9200829RCsb 1 of a felony by reason of insanity shall be for an indefinite 2 period of time. Such period of commitment shall not exceed 3 the maximum length of time that the defendant would have been 4 required to serve, less credit for good behavior, before 5 becoming eligible for release had he been convicted of and 6 received the maximum sentence for the most serious crime for 7 which he has been acquitted by reason of insanity. The Court 8 shall determine the maximum period of commitment by an 9 appropriate order. During this period of time, the defendant 10 shall not be permitted to be in the community in any manner, 11 including but not limited to off-grounds privileges, with or 12 without escort by personnel of the Department of Human 13 Services, unsupervised on-grounds privileges, discharge or 14 conditional or temporary release, except by a plan as 15 provided in this Section. In no event shall a defendant's 16 continued unauthorized absence be a basis for discharge. Not 17 more than 30 days after admission and every 60 days 18 thereafter so long as the initial order remains in effect, 19 the facility director shall file a treatment plan report with 20 the court and forward a copy of the treatment plan report to 21 the clerk of the court, the State's Attorney, and the 22 defendant's attorney, if the defendant is represented by 23 counsel, or to a person authorized by the defendant under the 24 Mental Health and Developmental Disabilities Confidentiality 25 Act to be sent a copy of the report. The report shall 26 include an opinion as to whether the defendant is currently 27 subject to involuntary admission, in need of mental health 28 services on an inpatient basis, or in need of mental health 29 services on an outpatient basis. The report shall also 30 summarize the basis for those findings and provide a current 31 summary of the following items from the treatment plan: (1) 32 an assessment of the defendant's treatment needs, (2) a 33 description of the services recommended for treatment, (3) 34 the goals of each type of element of service, (4) an HB0068 Engrossed -7- LRB9200829RCsb 1 anticipated timetable for the accomplishment of the goals, 2 and (5) a designation of the qualified professional 3 responsible for the implementation of the plan. The report 4 may also include unsupervised on-grounds privileges, 5 off-grounds privileges (with or without escort by personnel 6 of the Department of Human Services), home visits and 7 participation in work programs, but only where such 8 privileges have been approved by specific court order, which 9 order may include such conditions on the defendant as the 10 Court may deem appropriate and necessary to reasonably assure 11 the defendant's satisfactory progress in treatment and the 12 safety of the defendant and others. 13 (c) Every defendant acquitted of a felony by reason of 14 insanity and subsequently found to be subject to involuntary 15 admission or in need of mental health services shall be 16 represented by counsel in all proceedings under this Section 17 and under the Mental Health and Developmental Disabilities 18 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 22 statement of legal services rendered by the private 23 attorney appointed pursuant to paragraph (1) of this 24 subsection, the Court shall determine a reasonable fee 25 for such services. If the defendant is unable to pay the 26 fee, the Court shall enter an order upon the State to pay 27 the entire fee or such amount as the defendant is unable 28 to pay from funds appropriated by the General Assembly 29 for that purpose. 30 (d) When the facility director determines that: 31 (1) the defendant is no longer subject to 32 involuntary admission or in need of mental health 33 services on an inpatient basis; and 34 (2) the defendant may be conditionally released HB0068 Engrossed -8- LRB9200829RCsb 1 because he or she is still in need of mental health 2 services or that the defendant may be discharged as not 3 in need of any mental health services; or 4 (3) the defendant no longer requires placement in a 5 secure setting; 6 the facility director shall give written notice to the Court, 7 State's Attorney and defense attorney. Such notice shall set 8 forth in detail the basis for the recommendation of the 9 facility director, and specify clearly the recommendations, 10 if any, of the facility director, concerning conditional 11 release. Any recommendation for conditional release shall 12 include an evaluation of the defendant's need for 13 psychotropic medication, what provisions should be made, if 14 any, to insure that the defendant will continue to receive 15 psychotropic medication following discharge and what 16 provisions should be made to assure the safety of the 17 defendant and others in the event the defendant is no longer 18 receiving psychotropic medication. Within 30 days of the 19 notification by the facility director, the Court shall set a 20 hearing and make a finding as to whether the defendant is: 21 (i) subject to involuntary admission; or 22 (ii) in need of mental health services in the form 23 of inpatient care; or 24 (iii) in need of mental health services but not 25 subject to involuntary admission or inpatient care; or 26 (iv) no longer in need of mental health services; 27 or 28 (v) no longer requires placement in a secure 29 setting. 30 Upon finding by the Court, the Court shall enter its 31 findings and such appropriate order as provided in subsection 32 (a) of this Section. 33 (e) A defendant admitted pursuant to this Section, or 34 any person on his behalf, may file a petition for treatment HB0068 Engrossed -9- LRB9200829RCsb 1 plan review, transfer to a non-secure setting within the 2 Department of Human Services or discharge or conditional 3 release under the standards of this Section in the Court 4 which rendered the verdict. Upon receipt of a petition for 5 treatment plan review, transfer to a non-secure setting or 6 discharge or conditional release, the Court shall set a 7 hearing to be held within 120 days. Thereafter, no new 8 petition may be filed for 120 days without leave of the 9 Court. 10 (f) The Court shall direct that notice of the time and 11 place of the hearing be served upon the defendant, the 12 facility director, the State's Attorney, and the defendant's 13 attorney. If requested by either the State or the defense or 14 if the Court feels it is appropriate, an impartial 15 examination of the defendant by a psychiatrist or clinical 16 psychologist as defined in Section 1-103 of the Mental Health 17 and Developmental Disabilities Code who is not in the employ 18 of the Department of Human Services shall be ordered, and the 19 report considered at the time of the hearing. 20 (g) The findings of the Court shall be established by 21 clear and convincing evidence. The burden of proof and the 22 burden of going forth with the evidence rest with the 23 defendant or any person on the defendant's behalf when a 24 hearing is held to review the determination of the facility 25 director that the defendant should be transferred to a 26 non-secure setting, discharged, or conditionally released or 27 when a hearing is held to review a petition filed by or on 28 behalf of the defendant. The evidence shall be presented in 29 open Court with the right of confrontation and 30 cross-examination. 31 (h) Before the Court orders that the defendant be 32 discharged or conditionally released, it shall order the 33 facility director to establish a discharge plan that includes 34 a plan for the defendant's shelter, support, and medication. HB0068 Engrossed -10- LRB9200829RCsb 1 If appropriate, the Court shall order that the facility 2 director establish a program to train the defendant in 3 self-medication under standards established by the Department 4 of Human Services. If the Court finds that the defendant is 5 no longer in need of mental health services it shall order 6 the facility director to discharge the defendant. If the 7 Court finds that the defendant is in need of mental health 8 services, and no longer in need of inpatient care, it shall 9 order the facility director to release the defendant under 10 such conditions as the Court deems appropriate and as 11 provided by this Section. Such conditional release shall be 12 imposed for a period of five years and shall be subject to 13 later modification by the Court as provided by this Section. 14 If the Court finds that the defendant is subject to 15 involuntary admission or in need of mental health services on 16 an inpatient basis, it shall order the facility director not 17 to discharge or release the defendant in accordance with 18 paragraph (b) of this Section. 19 (i) If within the period of the defendant's conditional 20 release, the State's Attorney determines that the defendant 21 has not fulfilled the conditions of his or her release, the 22 State's Attorney may petition the Court to revoke or modify 23 the conditional release of the defendant. Upon the filing of 24 such petition the defendant may be remanded to the custody of 25 the Department, or to any other mental health facility 26 designated by the Department, pending the resolution of the 27 petition. Nothing in this Section shall prevent the 28 emergency admission of a defendant pursuant to Article VI of 29 Chapter III of the Mental Health and Developmental 30 Disabilities Code or the voluntary admission of the defendant 31 pursuant to Article IV of Chapter III of the Mental Health 32 and Developmental Disabilities Code. If the Court determines, 33 after hearing evidence, that the defendant has not fulfilled 34 the conditions of release, the Court shall order a hearing to HB0068 Engrossed -11- LRB9200829RCsb 1 be held consistent with the provisions of paragraph (f) and 2 (g) of this Section. At such hearing, if the Court finds that 3 the defendant is subject to involuntary admission or in need 4 of mental health services on an inpatient basis, it shall 5 enter an order remanding him or her to the Department of 6 Human Services or other facility. If the defendant is 7 remanded to the Department of Human Services, he or she shall 8 be placed in a secure setting unless the Court determines 9 that there are compelling reasons that such placement is not 10 necessary. If the Court finds that the defendant continues 11 to be in need of mental health services but not on an 12 inpatient basis, it may modify the conditions of the original 13 release in order to reasonably assure the defendant's 14 satisfactory progress in treatment and his or her safety and 15 the safety of others in accordance with the standards 16 established in paragraph (1) (D) of subsection (a).In no17event shall such conditional release be longer than eight18years.Nothing in this Section shall limit a Court's contempt 19 powers or any other powers of a Court. 20 (j) An order of admission under this Section does not 21 affect the remedy of habeas corpus. 22 (k) In the event of a conflict between this Section and 23 the Mental Health and Developmental Disabilities Code or the 24 Mental Health and Developmental Disabilities Confidentiality 25 Act, the provisions of this Section shall govern. 26 (l) This amendatory Act shall apply to all persons who 27 have been found not guilty by reason of insanity and who are 28 presently committed to the Department of Mental Health and 29 Developmental Disabilities (now the Department of Human 30 Services). 31 (m) The Clerk of the Court shall, after the entry of an 32 order of transfer to a non-secure setting of the Department 33 of Human Services or discharge or conditional release, 34 transmit a certified copy of the order to the Department of HB0068 Engrossed -12- LRB9200829RCsb 1 Human Services, and the sheriff of the county from which the 2 defendant was admitted.In cases where the arrest of the3defendant or the commission of the offense took place in any4municipality with a population of more than 25,000 persons,5 The Clerk of the Court shall also transmit a certified copy 6 of the order of discharge or conditional release to the 7 Illinois Department of State Police, to the proper law 8 enforcement agency for thesaidmunicipality where the 9 offense took place and to the sheriff of the county into 10 which the defendant is conditionally discharged. The 11 Illinois Department of State Police shall maintain a 12 centralized record of discharged or conditionally released 13 defendants while they are under court supervision for access 14 and use of appropriate law enforcement agenciesprovided the15municipality has requested such notice in writing. 16 (Source: P.A. 90-105, eff. 7-11-97; 90-593, eff. 6-19-98; 17 91-536, eff. 1-1-00; 91-770, eff. 1-1-01.)