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.)