Public Act 93-0473

SB1342 Enrolled                      LRB093 04985 RLC 09927 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;  (a)
(b)  in need of mental health services on an inpatient basis;
(b) (c) in need of mental health services  on  an  outpatient
basis;  (c)  (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, shall 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 and
participation in treatment or rehabilitation and  the  safety
of  the  defendant  and  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)  (Blank).  "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 due to  mental  illness  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, 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
    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.
    (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 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 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 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 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.  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)  (blank) 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 180 120 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 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:
         (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;
         (2)  Whether the person appreciates the  criminality
    of  conduct  similiar  to the conduct for which he or she
    was originally charged in this matter;
         (3)  the current state of the defendant's illness;
         (4)  what, if  any,  medications  the  defendant  is
    taking to control his or her mental illness;
         (5)  what, if any, adverse physical side effects the
    medication has on the defendant;
         (6)  the  length  of  time  it  would  take  for the
    defendant's mental health to deteriorate if the defendant
    stopped taking prescribed medication;
         (7)  the  defendant's  history  or   potential   for
    alcohol and drug abuse;
         (8)  the defendant's past criminal history;
         (9)  any  specialized  physical  or medical needs of
    the defendant;
         (10)  any  family   participation   or   involvement
    expected  upon  release  and  what is the willingness and
    ability of the family to participate or be involved;
         (11)  the defendant's potential to be  a  danger  to
    himself, herself, or others; and
         (12)  any  other  factor  or factors the Court deems
    appropriate.
    (h)  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  five
years  as provided in paragraph (1) (D) of subsection (a) 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  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
proper law enforcement agency for said municipality  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.)

    Section 99.  Effective date.  This Act takes effect  upon
becoming law.