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| Public Act 100-0424 | ||||
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AN ACT concerning criminal law.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Code of Criminal Procedure of 1963 is | ||||
amended by changing Section 104-15 as follows:
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(725 ILCS 5/104-15) (from Ch. 38, par. 104-15)
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Sec. 104-15. Report. | ||||
(a) The person or persons conducting an examination
of the | ||||
defendant, pursuant to paragraph (a) or (b) of Section 104-13 | ||||
shall
submit a written report to the court, the State, and the | ||||
defense within
30 days of the date of the order. The
report | ||||
shall include:
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(1) A diagnosis and an explanation as to how it was | ||||
reached and the facts
upon which it is based;
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(2) A description of the defendant's mental or physical | ||||
disability, if
any; its severity; and an opinion as to | ||||
whether and to what extent it impairs
the defendant's | ||||
ability to understand the nature and purpose of
the | ||||
proceedings against him or to assist in his defense, or | ||||
both.
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(b) If the report indicates that the defendant is not fit | ||||
to stand trial
or to plead because of a disability, the report | ||||
shall include an opinion
as to the likelihood of the defendant | ||||
attaining fitness within a period of time from the date of the | ||
finding of unfitness one year if
provided with a course of | ||
treatment. For a defendant charged with a felony, the period of | ||
time shall be one year. For a defendant charged with a | ||
misdemeanor, the period of time shall be no longer than the | ||
maximum term of imprisonment for the most serious offense. If | ||
the person or persons preparing
the report are unable to form | ||
such an opinion, the report shall state the
reasons therefor. | ||
The report may include a general description of the
type of | ||
treatment needed and of the least physically restrictive form | ||
of
treatment therapeutically appropriate.
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(c) The report shall indicate what information, if any, | ||
contained therein
may be harmful to the mental condition of the | ||
defendant if made known to him.
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(d) In addition to the report, a person retained or | ||
appointed by the State or the defense to conduct an examination | ||
shall, upon written request, make his or her notes, other | ||
evaluations reviewed or relied upon by the testifying witness, | ||
and any videotaped interviews available to another examiner of | ||
the defendant. All forensic interviews conducted by a person | ||
retained or appointed by the State or the defense shall be | ||
videotaped unless doing so would be impractical. In the event | ||
that the interview is not videotaped, the examiner may still | ||
testify as to the person's fitness and the court may only | ||
consider the lack of compliance in according the weight and not | ||
the admissibility of the expert testimony. An examiner may use | ||
these materials as part of his or her diagnosis and explanation | ||
but shall not otherwise disclose the contents, including at a | ||
hearing before the court, except as otherwise provided in | ||
Section 104-14 of this Code. | ||
(Source: P.A. 98-1025, eff. 1-1-15.)
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Section 10. The Unified Code of Corrections is amended by | ||
changing Section 5-2-4 as follows:
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(730 ILCS 5/5-2-4) (from Ch. 38, par. 1005-2-4)
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Sec. 5-2-4. Proceedings after Acquittal by Reason of | ||
Insanity.
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(a) After a finding or verdict of not guilty by reason of | ||
insanity
under Sections 104-25, 115-3 or 115-4 of the Code of | ||
Criminal Procedure
of 1963, the defendant shall be ordered to | ||
the Department of Human Services for
an evaluation as to
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whether he is in need of mental health
services. The order
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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 defendant shall be placed | ||
in a secure setting. With the court order for evaluation shall | ||
be sent a copy of the arrest report, criminal charges, arrest | ||
record, jail record, any report prepared under Section 115-6 of | ||
the Code of Criminal Procedure of 1963, and any victim impact | ||
statement prepared under Section 6 of the Rights of Crime | ||
Victims and Witnesses Act.
After the evaluation and during the | ||
period of time required to
determine the appropriate placement, | ||
the defendant shall
remain in jail.
Individualized placement | ||
evaluations by the Department of Human Services 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 defendant to the | ||
designated facility.
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The Department shall provide the Court with a report of its | ||
evaluation
within 30 days of the date of this order. The Court | ||
shall hold a hearing
as provided under the Mental Health and | ||
Developmental Disabilities Code to
determine if the individual | ||
is:
(a)
in need of mental health services on an inpatient | ||
basis; (b) in
need of
mental health services on an outpatient | ||
basis; (c) a person not in
need of
mental health services. The | ||
Court shall enter its findings.
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If the defendant is found to be in
need
of mental health | ||
services on an inpatient care basis, the Court shall order the
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defendant to the Department of Human Services.
The defendant | ||
shall be placed in a secure setting. Such
defendants placed in | ||
a secure setting shall not be permitted outside the
facility's | ||
housing unit unless escorted or accompanied by personnel of the
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Department of Human Services or with the prior approval of the | ||
Court for
unsupervised
on-grounds privileges as provided
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herein.
Any defendant placed in a secure setting pursuant to | ||
this Section,
transported to court hearings or other necessary | ||
appointments
off facility grounds
by personnel of
the | ||
Department of Human Services, shall be
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. These security measures
shall not constitute restraint | ||
as defined in the Mental Health and
Developmental Disabilities | ||
Code.
If the defendant is found to be in need of mental health | ||
services,
but not on an inpatient care basis, the Court shall | ||
conditionally release
the defendant, under such conditions as | ||
set forth in this Section as will
reasonably assure the | ||
defendant's satisfactory progress and participation
in | ||
treatment or
rehabilitation and the safety of the defendant and | ||
others. If the
Court
finds the person not in need of mental | ||
health services, then the Court
shall order the defendant | ||
discharged from custody.
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(a-1) Definitions. For the purposes of this Section:
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(A) (Blank).
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(B) "In need of mental health services on an inpatient | ||
basis" means: a
defendant who has been found not guilty by | ||
reason of insanity but who due to mental illness is
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reasonably expected to inflict
serious physical harm upon | ||
himself or another and who would benefit from
inpatient | ||
care or is in need of inpatient care.
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(C) "In need of mental health services on an outpatient | ||
basis" means:
a defendant who has been found not guilty by | ||
reason of insanity who is not in need of mental health | ||
services on
an inpatient basis, but is in need of | ||
outpatient care, drug and/or alcohol
rehabilitation | ||
programs, community adjustment programs, individual, | ||
group,
or family therapy, or chemotherapy.
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(D) "Conditional Release" means: the release from | ||
either the custody
of the Department of Human Services
or | ||
the custody of the Court of a person who has been found not | ||
guilty by
reason of insanity under such conditions as the | ||
Court may impose which
reasonably assure the defendant's | ||
satisfactory progress in
treatment or habilitation and the | ||
safety of the defendant and others. The
Court shall | ||
consider such terms and conditions which may include, but | ||
need
not be limited to, outpatient care, alcoholic and drug | ||
rehabilitation programs,
community adjustment programs, | ||
individual, group, family, and chemotherapy,
random | ||
testing to ensure the defendant's timely and continuous | ||
taking of any
medicines prescribed
to control or manage his | ||
or her conduct or mental state, and
periodic checks with | ||
the legal authorities and/or the Department of Human
| ||
Services.
The Court may order as a condition of conditional | ||
release that the
defendant not contact the victim of the | ||
offense that
resulted in the finding or
verdict of not | ||
guilty by reason of insanity or any other person. The Court | ||
may
order the
Department of
Human Services to provide care | ||
to any
person conditionally released under this Section. | ||
The Department may contract
with any public or private | ||
agency in order to discharge any responsibilities
imposed | ||
under this Section. The Department shall monitor the | ||
provision of
services to persons conditionally released | ||
under this Section and provide
periodic reports to the | ||
Court concerning the services and the condition of the
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defendant.
Whenever a person is conditionally released | ||
pursuant to this Section, the
State's Attorney for the | ||
county in which the hearing is held shall designate in
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writing the name, telephone number, and address of a person | ||
employed by him or
her who
shall be notified in the event | ||
that either the reporting agency or the
Department decides | ||
that the conditional release of the defendant should be
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revoked or modified pursuant to subsection (i) of this | ||
Section. Such
conditional release shall be for
a period of | ||
five years. However, the defendant, the person or
facility
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rendering the treatment, therapy, program or outpatient | ||
care, the
Department, or the
State's Attorney may petition | ||
the Court for an extension of
the conditional
release | ||
period for an additional 5 years. Upon receipt of such a
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petition, the Court shall hold a hearing consistent with | ||
the provisions of
paragraph (a), this paragraph (a-1),
and | ||
paragraph (f) of this Section, shall determine
whether the | ||
defendant should continue to be subject to the terms of
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conditional release, and shall enter an order either | ||
extending the
defendant's period of conditional release | ||
for an additional
5
year period or discharging the | ||
defendant.
Additional 5-year periods of conditional | ||
release may be ordered following a
hearing as provided in | ||
this Section. However,
in no event shall the defendant's
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period of conditional release continue beyond the maximum | ||
period of
commitment ordered by the Court pursuant to | ||
paragraph (b) of this Section. These provisions for
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extension of conditional release shall only apply to | ||
defendants
conditionally released on or after August 8, | ||
2003. However the extension
provisions of Public Act | ||
83-1449 apply only to defendants charged
with a forcible | ||
felony.
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(E) "Facility director" means the chief officer of a | ||
mental health or
developmental disabilities facility or | ||
his or her designee or the supervisor of
a program of | ||
treatment or habilitation or his or her designee. | ||
"Designee" may
include a physician, clinical psychologist, | ||
social worker, nurse, or clinical
professional counselor.
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(b) If the Court finds the defendant in need of mental | ||
health services on an
inpatient basis, the
admission, | ||
detention, care, treatment or habilitation, treatment plans,
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review proceedings, including review of treatment and | ||
treatment plans, and
discharge of the defendant after such | ||
order shall be under the
Mental Health and Developmental | ||
Disabilities Code, except that the
initial order for admission | ||
of a defendant acquitted of a felony by
reason of insanity | ||
shall be for an indefinite period of time. Such period
of | ||
commitment shall not exceed the maximum
length of time that the | ||
defendant would have been required to serve,
less credit for | ||
good behavior as provided in Section 5-4-1 of the Unified
Code | ||
of Corrections, before becoming eligible for
release had
he | ||
been convicted of and received the maximum sentence for the | ||
most
serious crime for which he has been acquitted by reason of | ||
insanity. The
Court shall determine the maximum period of | ||
commitment by an appropriate
order. During this period of time, | ||
the defendant shall not be permitted
to be in the community in | ||
any manner, including but not limited to off-grounds
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privileges, with or without escort by personnel of the | ||
Department of Human
Services, unsupervised on-grounds | ||
privileges,
discharge or conditional or temporary release, | ||
except by a plan as provided in
this Section. In no event shall | ||
a defendant's continued unauthorized
absence be a basis for | ||
discharge. Not more than 30 days after admission
and every 90 | ||
60 days thereafter so long as the initial order
remains in | ||
effect, the facility director shall file a treatment plan | ||
report
in writing with the court
and forward a copy of the | ||
treatment plan report to the clerk of the
court, the State's | ||
Attorney, and the defendant's attorney, if the defendant is
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represented by counsel,
or to a person authorized by
the | ||
defendant under the
Mental Health and Developmental | ||
Disabilities Confidentiality Act to be sent a
copy of the | ||
report. The report shall include an opinion
as to whether the
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defendant is currently in need of mental
health services on an | ||
inpatient basis or in need of mental health services
on
an | ||
outpatient basis. The report shall also summarize the basis for | ||
those
findings and provide a current summary of the following | ||
items from the
treatment plan: (1) an assessment of the | ||
defendant's treatment needs, (2) a
description of the services | ||
recommended for treatment, (3) the goals of each
type of | ||
element of service, (4) an anticipated timetable for the | ||
accomplishment
of the goals, and (5) a designation of the | ||
qualified professional responsible
for the implementation of | ||
the plan.
The report may also include unsupervised on-grounds
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privileges, off-grounds privileges (with or without escort by | ||
personnel of the
Department of Human Services), home visits and
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participation in work
programs, but only where such privileges | ||
have been approved by specific court
order, which order may | ||
include such conditions on the defendant as the
Court may deem | ||
appropriate and necessary to reasonably assure the defendant's
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satisfactory progress in treatment and the safety of the | ||
defendant and others.
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(c) Every defendant acquitted of a felony by reason of | ||
insanity and
subsequently found to be in need of
mental health | ||
services shall be represented by counsel in all proceedings | ||
under
this Section and under the Mental Health and | ||
Developmental Disabilities Code.
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(1) The Court shall appoint as counsel the public | ||
defender or an
attorney licensed by this State.
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(2) Upon filing with the Court of a verified statement | ||
of legal
services rendered by the private attorney | ||
appointed pursuant to
paragraph (1) of this subsection, the | ||
Court shall determine a reasonable
fee for such services. | ||
If the defendant is unable to pay the fee, the
Court shall | ||
enter an order upon the State to pay the entire fee or such
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amount as the defendant is unable to pay from funds | ||
appropriated by the
General Assembly for that purpose.
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(d) When the facility director determines that:
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(1) the defendant is no longer
in need of mental health | ||
services on an inpatient basis; and
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(2) the defendant may be conditionally released | ||
because he
or she is still in need of mental health | ||
services or that the defendant
may be discharged as not in | ||
need of any mental health services; or
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(3) (blank);
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the facility director shall give written notice
to the Court, | ||
State's Attorney and defense attorney.
Such notice shall set | ||
forth in detail the basis for the recommendation of
the | ||
facility director, and specify clearly the recommendations, if | ||
any,
of the facility director, concerning conditional release.
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Any recommendation for conditional release shall include an | ||
evaluation of
the defendant's need for psychotropic | ||
medication, what provisions should be
made, if any, to ensure | ||
that the defendant will continue to receive
psychotropic | ||
medication following discharge, and what provisions should be | ||
made
to assure the safety of the defendant and others in the | ||
event the defendant is
no longer receiving psychotropic | ||
medication.
Within 30 days of
the notification by the facility | ||
director, the Court shall set a hearing and
make a finding as | ||
to whether the defendant is:
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(i) (blank); or
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(ii) in need of mental health services in the form of | ||
inpatient care; or
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(iii) in need of mental health services but not subject | ||
to inpatient care;
or
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(iv) no longer in need of mental health services; or
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(v) (blank).
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Upon finding by the Court, the Court shall enter its | ||
findings and such
appropriate order as provided in subsections | ||
(a) and (a-1) of this Section.
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(e) A defendant admitted pursuant to this Section, or any | ||
person on
his behalf, may file a petition for treatment plan | ||
review
or discharge or conditional release under the
standards | ||
of this Section in the Court which rendered the verdict. Upon
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receipt of a petition for treatment plan review or discharge or | ||
conditional release, the Court shall set a hearing to
be held | ||
within 120 days. Thereafter, no new petition
may be filed for | ||
180 days
without leave of the Court.
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(f) The Court shall direct that notice of the time and | ||
place of the
hearing be served upon the defendant, the facility | ||
director, the State's
Attorney, and the defendant's attorney. | ||
If requested by either the State or the
defense or if the Court | ||
feels it is appropriate, an impartial examination
of the | ||
defendant by a psychiatrist or clinical psychologist as defined | ||
in
Section 1-103 of the Mental Health and Developmental | ||
Disabilities Code who
is not in the employ of the Department of | ||
Human Services shall be ordered, and
the report considered at
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the time of the hearing.
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(g) The findings of the Court shall be established by clear | ||
and
convincing evidence. The burden of proof and the burden of | ||
going forth
with the evidence rest with the defendant or any | ||
person on the defendant's
behalf when a hearing is held to | ||
review
a petition filed by or on
behalf of the defendant. The | ||
evidence shall be presented in open
Court
with the right of | ||
confrontation and cross-examination.
Such evidence may | ||
include, but is not limited to:
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(1) whether the defendant appreciates the harm caused | ||
by the defendant to
others and the community by his or her | ||
prior
conduct
that resulted in the finding of not guilty by | ||
reason of insanity;
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(2) Whether the person appreciates the criminality of | ||
conduct similar to
the conduct for which he or she was | ||
originally charged in this matter;
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(3) the current state of
the defendant's illness;
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(4) what, if any, medications the defendant is taking | ||
to
control his or her mental illness;
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(5) what, if any, adverse physical side effects
the | ||
medication has on the defendant;
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(6) the length of time it would take for the | ||
defendant's mental health to
deteriorate
if
the
defendant | ||
stopped taking prescribed medication;
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(7) the defendant's history or potential for alcohol | ||
and drug abuse;
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(8) the defendant's past criminal history;
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(9) any specialized physical or medical needs of the | ||
defendant;
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(10) any family participation or involvement expected | ||
upon release and
what is the willingness and ability of the | ||
family to participate or be
involved;
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(11) the defendant's potential to be a danger to | ||
himself, herself, or
others; and
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(12) any other factor or factors the Court deems | ||
appropriate.
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(h) Before the court orders that the defendant be | ||
discharged or
conditionally released, it shall order the | ||
facility director to establish a
discharge plan that includes a | ||
plan for the defendant's shelter, support, and
medication. If | ||
appropriate, the court shall order that the facility director
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establish a program to train the defendant in self-medication | ||
under standards
established by the Department of Human | ||
Services.
If the Court finds, consistent with the provisions of | ||
this Section,
that the defendant is no longer in need of mental
| ||
health services it shall order the facility director to | ||
discharge the
defendant. If the Court finds, consistent with | ||
the provisions of this
Section, that the defendant is in need | ||
of mental
health services, and no longer in need of inpatient | ||
care, it shall order
the facility director to release the | ||
defendant under such conditions as the
Court deems appropriate | ||
and as provided by this Section. Such conditional
release shall | ||
be imposed for a period of 5 years as provided in
paragraph
(D) | ||
of subsection (a-1) and shall be
subject
to later modification | ||
by the Court as provided by this Section. If the
Court finds | ||
consistent with the provisions in this Section that the
| ||
defendant is in
need of mental health services on an inpatient | ||
basis, it shall order the
facility director not to discharge or | ||
release the defendant in accordance
with paragraph (b) of this | ||
Section.
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(i) If within the period of the defendant's conditional | ||
release
the State's Attorney determines that the defendant has | ||
not fulfilled the
conditions of his or her release, the State's | ||
Attorney may petition the
Court
to
revoke or modify the | ||
conditional release of the defendant. Upon the filing of
such | ||
petition the defendant may be remanded to the custody of the | ||
Department,
or to any other mental health facility designated | ||
by the Department, pending
the resolution of the petition. | ||
Nothing in this Section shall prevent the
emergency admission | ||
of a defendant pursuant to Article VI of Chapter III of the
| ||
Mental Health
and Developmental Disabilities Code or the | ||
voluntary admission of the defendant
pursuant to Article IV of | ||
Chapter III of the Mental Health and Developmental
Disabilities
| ||
Code. If
the Court determines, after hearing evidence, that the | ||
defendant has
not fulfilled the conditions of release, the | ||
Court shall order a hearing
to be held consistent with the | ||
provisions of paragraph (f) and (g) of this
Section. At such | ||
hearing, if the Court finds that the defendant is in need of | ||
mental health services on an inpatient
basis, it shall enter an | ||
order remanding him or her to the Department of
Human Services | ||
or other
facility. If the defendant is remanded to the | ||
Department of Human Services, he
or she shall be placed in
a | ||
secure setting unless the Court
determines that there are | ||
compelling reasons that such placement is not
necessary. If the
| ||
Court finds that the defendant continues to be in need of | ||
mental health
services but not on an inpatient basis, it may | ||
modify the conditions of
the original release in order to | ||
reasonably assure the defendant's satisfactory
progress in | ||
treatment and his or her safety and the safety of others in
| ||
accordance with the standards established in paragraph (D) of | ||
subsection (a-1). Nothing in
this Section shall limit a Court's | ||
contempt powers or any other powers of a
Court.
| ||
(j) An order of admission under this Section does not | ||
affect the
remedy of habeas corpus.
| ||
(k) In the event of a conflict between this Section and the | ||
Mental Health
and Developmental Disabilities Code or the Mental | ||
Health and Developmental
Disabilities Confidentiality Act, the | ||
provisions of this Section shall govern.
| ||
(l) This amendatory Act shall apply to all persons who have | ||
been found
not guilty by reason of insanity and who are | ||
presently committed to the
Department of Mental Health and | ||
Developmental Disabilities (now the
Department of Human | ||
Services).
| ||
(m)
The Clerk of the Court shall transmit a certified copy | ||
of the order of
discharge or conditional release to the | ||
Department of Human Services, to the sheriff of the county from | ||
which the defendant was admitted, to the Illinois Department of | ||
State Police, to
the proper law enforcement agency for the | ||
municipality
where the offense took
place, and to the sheriff | ||
of the county into which the defendant is
conditionally | ||
discharged. The Illinois Department of State Police shall
| ||
maintain a
centralized record of discharged or conditionally | ||
released defendants while
they are under court supervision for | ||
access and use of appropriate law
enforcement agencies.
| ||
(Source: P.A. 98-1025, eff. 8-22-14.)
| ||
Section 99. Effective date. This Act takes effect January | ||
1, 2018.
| ||