Public Act 93-0078

HB0056 Enrolled                      LRB093 02359 RLC 02367 b

    AN ACT in relation to criminal law.

    Be it enacted by the People of  the  State  of  Illinois,
represented in the General Assembly:

    Section  5. The Unified Code of Corrections is amended by
changing Section 5-2-4 as follows:

    (730 ILCS 5/5-2-4) (from Ch. 38, par. 1005-2-4)
    Sec. 5-2-4.  Proceedings after  Acquittal  by  Reason  of
Insanity.
    (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
whether  he is subject to involuntary admission or 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  defendant  shall  be  placed in a secure setting
unless the Court determines that there are compelling reasons
why such placement is not necessary. After the evaluation and
during  the  period  of  time  required  to   determine   the
appropriate  placement,  the  defendant shall remain in jail.
Upon completion of the placement  process the  sheriff  shall
be   notified  and  shall  transport  the  defendant  to  the
designated facility.
    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) subject to involuntary admission; (b)
in need of mental health services on an inpatient basis;  (c)
in need of mental health services on an outpatient basis; (d)
a  person  not  in need of mental health services.  The Court
shall enter its findings.
    If the defendant is found to be  subject  to  involuntary
admission  or  in  need  of  mental  health  services  on  an
inpatient  care basis, the Court shall order the defendant to
the Department of Human  Services.  The  defendant  shall  be
placed  in  a secure setting unless the Court determines that
there are  compelling  reasons  why  such  placement  is  not
necessary.  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 Department of
Human Services or with the prior approval of  the  Court  for
unsupervised  on-grounds  privileges  as provided 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,  may  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  in
treatment  or  rehabilitation and the safety of the defendant
or others.  If the Court finds the  person  not  in  need  of
mental  health  services,  then  the  Court  shall  order the
defendant discharged from custody.
    (1)  Definitions:  For the purposes of this Section:
         (A)  "Subject to involuntary  admission"  means:   a
    defendant   has  been  found  not  guilty  by  reason  of
    insanity; and
              (i)  who is mentally ill and who because of his
         mental illness is  reasonably  expected  to  inflict
         serious physical harm upon himself or another in the
         near future; or
              (ii)  who  is  mentally  ill and who because of
         his illness is  unable  to  provide  for  his  basic
         physical  needs  so as to guard himself from serious
         harm.
         (B)  "In  need  of  mental  health  services  on  an
    inpatient basis" means: a defendant who  has  been  found
    not  guilty  by  reason of insanity who is not subject to
    involuntary admission but who is 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.
         (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 subject to
    involuntary  admission  or  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.
         (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, periodic checks with the legal  authorities
    and/or  the  Department of Human Services.  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
    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
    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  revoked  or  modified  pursuant  to
    subsection  (i)  of  this Section  The person or facility
    rendering  the  outpatient  care  shall  be  required  to
    periodically report to the Court on the progress  of  the
    defendant. Such conditional release shall be for a period
    of  five years. However, unless the defendant, the person
    or facility rendering the treatment, therapy, program  or
    outpatient  care, the Department, or the State's Attorney
    may petition petitions the Court for an extension of  the
    conditional  release  period  for  an  additional 5 three
    years. Upon receipt of such a petition, the  Court  shall
    hold  a  hearing  consistent  with the provisions of this
    paragraph (a) and paragraph (f) of  this  Section,  shall
    determine  whether  the  defendant  should continue to be
    subject to the terms of conditional  release,  and  shall
    enter an order either extending the defendant's period of
    conditional  release  for  an a single additional 5 three
    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 period of
    conditional release continue beyond the maximum period of
    commitment ordered by the court pursuant to paragraph (b)
    of this Section exceed eight years. These provisions  for
    extension  of  conditional  release  shall  only apply to
    defendants  conditionally  released  on  or   after   the
    effective date of this amendatory Act of the 93rd General
    Assembly  July  1, 1979. However the extension provisions
    of Public Act 83-1449 apply only  to  defendants  charged
    with a forcible felony.
         (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,  or  nurse,  or  clinical
    professional counselor.
    (b)  If  the  Court  finds  the  defendant   subject   to
involuntary admission or in need of mental health services on
an inpatient basis, the admission, detention, care, treatment
or   habilitation,   treatment   plans,  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, 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 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  60  days
thereafter so long as the initial order  remains  in  effect,
the facility director shall file a treatment plan report 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 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 defendant  is  currently
subject  to  involuntary  admission, 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   privileges,
off-grounds  privileges  (with or without escort by personnel
of  the  Department  of  Human  Services),  home  visits  and
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  satisfactory  progress in treatment and the
safety of the defendant and others.
    (c)  Every defendant acquitted of a felony by  reason  of
insanity  and subsequently found to be subject to involuntary
admission or 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.
         (1)  The  Court  shall appoint as counsel the public
    defender or an attorney licensed by this State.
         (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 amount as the defendant is unable
    to pay from funds appropriated by  the  General  Assembly
    for that purpose.
    (d)  When the facility director determines that:
         (1)  the   defendant   is   no   longer  subject  to
    involuntary  admission  or  in  need  of  mental   health
    services on an inpatient basis; and
         (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
         (3)  the defendant no longer requires placement in a
    secure setting;
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.  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:
         (i)  subject to involuntary admission; or
         (ii)  in  need of mental health services in the form
    of inpatient care; or
         (iii)  in need of mental  health  services  but  not
    subject to involuntary admission or inpatient care; or
         (iv)  no  longer  in need of mental health services;
    or
         (v)  no  longer  requires  placement  in  a   secure
    setting.
    Upon  finding  by  the  Court,  the Court shall enter its
findings and such appropriate order as provided in subsection
(a) of this Section.
    (e)  A defendant admitted pursuant to  this  Section,  or
any  person on his behalf, may  file a petition for treatment
plan review, transfer to  a  non-secure  setting  within  the
Department  of  Human  Services  or  discharge or conditional
release under the standards of  this  Section  in  the  Court
which  rendered  the verdict.  Upon receipt of a petition for
treatment plan review, transfer to a  non-secure  setting  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  120  days without leave of the
Court.
    (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 the time of the hearing.
    (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 the determination of the facility
director that  the  defendant  should  be  transferred  to  a
non-secure  setting, discharged, or conditionally released or
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.
    (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 establish  a  program  to  train  the  defendant  in
self-medication under standards established by the Department
of  Human Services.  If the Court finds 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 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 five years and shall be subject    to
later  modification by the Court as provided by this Section.
If  the  Court  finds  that  the  defendant  is  subject   to
involuntary admission or 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.
    (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 subject to involuntary admission or 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 (1) (D) of  subsection  (a).  In  no
event  shall  such  conditional  release be longer than eight
years. 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, after the entry of an
order of transfer to a non-secure setting of  the  Department
of  Human  Services  or  discharge  or  conditional  release,
transmit  a  certified copy of the order to the Department of
Human Services, and the sheriff of the county from which  the
defendant  was  admitted.   In  cases where the arrest of the
defendant or the commission of the offense took place in  any
municipality  with  a population of more than 25,000 persons,
The Clerk of the Court shall also transmit a  certified  copy
of  the  order  of  discharge  or  conditional release to the
Illinois Department  of  State  Police,  to  the  proper  law
enforcement  agency  for  the  said  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 provided  the
municipality has requested such notice in writing.
(Source:  P.A.  90-105,  eff.  7-11-97; 90-593, eff. 6-19-98;
91-536, eff. 1-1-00; 91-770, eff. 1-1-01.)