093_HB0056
LRB093 02359 RLC 02367 b
1 AN ACT in relation to criminal law.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 5. The Unified Code of Corrections is amended by
5 changing Section 5-2-4 as follows:
6 (730 ILCS 5/5-2-4) (from Ch. 38, par. 1005-2-4)
7 Sec. 5-2-4. Proceedings after Acquittal by Reason of
8 Insanity.
9 (a) After a finding or verdict of not guilty by reason
10 of insanity under Sections 104-25, 115-3 or 115-4 of The Code
11 of Criminal Procedure of 1963, the defendant shall be ordered
12 to the Department of Human Services for an evaluation as to
13 whether he is subject to involuntary admission or in need of
14 mental health services. The order shall specify whether the
15 evaluation shall be conducted on an inpatient or outpatient
16 basis. If the evaluation is to be conducted on an inpatient
17 basis, the defendant shall be placed in a secure setting
18 unless the Court determines that there are compelling reasons
19 why such placement is not necessary. After the evaluation and
20 during the period of time required to determine the
21 appropriate placement, the defendant shall remain in jail.
22 Upon completion of the placement process the sheriff shall
23 be notified and shall transport the defendant to the
24 designated facility.
25 The Department shall provide the Court with a report of
26 its evaluation within 30 days of the date of this order. The
27 Court shall hold a hearing as provided under the Mental
28 Health and Developmental Disabilities Code to determine if
29 the individual is: (a) subject to involuntary admission; (b)
30 in need of mental health services on an inpatient basis; (c)
31 in need of mental health services on an outpatient basis; (d)
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1 a person not in need of mental health services. The Court
2 shall enter its findings.
3 If the defendant is found to be subject to involuntary
4 admission or in need of mental health services on an
5 inpatient care basis, the Court shall order the defendant to
6 the Department of Human Services. The defendant shall be
7 placed in a secure setting unless the Court determines that
8 there are compelling reasons why such placement is not
9 necessary. Such defendants placed in a secure setting shall
10 not be permitted outside the facility's housing unit unless
11 escorted or accompanied by personnel of the Department of
12 Human Services or with the prior approval of the Court for
13 unsupervised on-grounds privileges as provided herein. Any
14 defendant placed in a secure setting pursuant to this
15 Section, transported to court hearings or other necessary
16 appointments off facility grounds by personnel of the
17 Department of Human Services, may be placed in security
18 devices or otherwise secured during the period of
19 transportation to assure secure transport of the defendant
20 and the safety of Department of Human Services personnel and
21 others. These security measures shall not constitute
22 restraint as defined in the Mental Health and Developmental
23 Disabilities Code. If the defendant is found to be in need of
24 mental health services, but not on an inpatient care basis,
25 the Court shall conditionally release the defendant, under
26 such conditions as set forth in this Section as will
27 reasonably assure the defendant's satisfactory progress in
28 treatment or rehabilitation and the safety of the defendant
29 or others. If the Court finds the person not in need of
30 mental health services, then the Court shall order the
31 defendant discharged from custody.
32 (1) Definitions: For the purposes of this Section:
33 (A) "Subject to involuntary admission" means: a
34 defendant has been found not guilty by reason of
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1 insanity; and
2 (i) who is mentally ill and who because of his
3 mental illness is reasonably expected to inflict
4 serious physical harm upon himself or another in the
5 near future; or
6 (ii) who is mentally ill and who because of
7 his illness is unable to provide for his basic
8 physical needs so as to guard himself from serious
9 harm.
10 (B) "In need of mental health services on an
11 inpatient basis" means: a defendant who has been found
12 not guilty by reason of insanity who is not subject to
13 involuntary admission but who is reasonably expected to
14 inflict serious physical harm upon himself or another and
15 who would benefit from inpatient care or is in need of
16 inpatient care.
17 (C) "In need of mental health services on an
18 outpatient basis" means: a defendant who has been found
19 not guilty by reason of insanity who is not subject to
20 involuntary admission or in need of mental health
21 services on an inpatient basis, but is in need of
22 outpatient care, drug and/or alcohol rehabilitation
23 programs, community adjustment programs, individual,
24 group, or family therapy, or chemotherapy.
25 (D) "Conditional Release" means: the release from
26 either the custody of the Department of Human Services or
27 the custody of the Court of a person who has been found
28 not guilty by reason of insanity under such conditions as
29 the Court may impose which reasonably assure the
30 defendant's satisfactory progress in treatment or
31 habilitation and the safety of the defendant and others.
32 The Court shall consider such terms and conditions which
33 may include, but need not be limited to, outpatient care,
34 alcoholic and drug rehabilitation programs, community
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1 adjustment programs, individual, group, family, and
2 chemotherapy, periodic checks with the legal authorities
3 and/or the Department of Human Services. The Court may
4 order the Department of Human Services to provide care to
5 any person conditionally released under this Section.
6 The Department may contract with any public or private
7 agency in order to discharge any responsibilities imposed
8 under this Section. The Department shall monitor the
9 provision of services to persons conditionally released
10 under this Section and provide periodic reports to the
11 Court concerning the services and the condition of the
12 defendant. Whenever a person is conditionally released
13 pursuant to this Section, the State's Attorney for the
14 county in which the hearing is held shall designate in
15 writing the name, telephone number, and address of a
16 person employed by him or her who shall be notified in
17 the event that either the reporting agency or the
18 Department decides that the conditional release of the
19 defendant should be revoked or modified pursuant to
20 subsection (i) of this Section The person or facility
21 rendering the outpatient care shall be required to
22 periodically report to the Court on the progress of the
23 defendant. Such conditional release shall be for a period
24 of five years. However, unless the defendant, the person
25 or facility rendering the treatment, therapy, program or
26 outpatient care, the Department, or the State's Attorney
27 may petition petitions the Court for an extension of the
28 conditional release period for an additional 5 three
29 years. Upon receipt of such a petition, the Court shall
30 hold a hearing consistent with the provisions of this
31 paragraph (a) and paragraph (f) of this Section, shall
32 determine whether the defendant should continue to be
33 subject to the terms of conditional release, and shall
34 enter an order either extending the defendant's period of
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1 conditional release for an a single additional 5 three
2 year period or discharging the defendant. Additional
3 5-year periods of conditional release may be ordered
4 following a hearing as provided in this Section.
5 However, in no event shall the defendant's period of
6 conditional release continue beyond the maximum period of
7 commitment ordered by the court pursuant to paragraph (b)
8 of this Section exceed eight years. These provisions for
9 extension of conditional release shall only apply to
10 defendants conditionally released on or after the
11 effective date of this amendatory Act of the 93rd General
12 Assembly July 1, 1979. However the extension provisions
13 of Public Act 83-1449 apply only to defendants charged
14 with a forcible felony.
15 (E) "Facility director" means the chief officer of
16 a mental health or developmental disabilities facility or
17 his or her designee or the supervisor of a program of
18 treatment or habilitation or his or her designee.
19 "Designee" may include a physician, clinical
20 psychologist, social worker, or nurse.
21 (b) If the Court finds the defendant subject to
22 involuntary admission or in need of mental health services on
23 an inpatient basis, the admission, detention, care, treatment
24 or habilitation, treatment plans, review proceedings,
25 including review of treatment and treatment plans, and
26 discharge of the defendant after such order shall be under
27 the Mental Health and Developmental Disabilities Code, except
28 that the initial order for admission of a defendant acquitted
29 of a felony by reason of insanity shall be for an indefinite
30 period of time. Such period of commitment shall not exceed
31 the maximum length of time that the defendant would have been
32 required to serve, less credit for good behavior, before
33 becoming eligible for release had he been convicted of and
34 received the maximum sentence for the most serious crime for
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1 which he has been acquitted by reason of insanity. The Court
2 shall determine the maximum period of commitment by an
3 appropriate order. During this period of time, the defendant
4 shall not be permitted to be in the community in any manner,
5 including but not limited to off-grounds privileges, with or
6 without escort by personnel of the Department of Human
7 Services, unsupervised on-grounds privileges, discharge or
8 conditional or temporary release, except by a plan as
9 provided in this Section. In no event shall a defendant's
10 continued unauthorized absence be a basis for discharge. Not
11 more than 30 days after admission and every 60 days
12 thereafter so long as the initial order remains in effect,
13 the facility director shall file a treatment plan report with
14 the court and forward a copy of the treatment plan report to
15 the clerk of the court, the State's Attorney, and the
16 defendant's attorney, if the defendant is represented by
17 counsel, or to a person authorized by the defendant under the
18 Mental Health and Developmental Disabilities Confidentiality
19 Act to be sent a copy of the report. The report shall
20 include an opinion as to whether the defendant is currently
21 subject to involuntary admission, in need of mental health
22 services on an inpatient basis, or in need of mental health
23 services on an outpatient basis. The report shall also
24 summarize the basis for those findings and provide a current
25 summary of the following items from the treatment plan: (1)
26 an assessment of the defendant's treatment needs, (2) a
27 description of the services recommended for treatment, (3)
28 the goals of each type of element of service, (4) an
29 anticipated timetable for the accomplishment of the goals,
30 and (5) a designation of the qualified professional
31 responsible for the implementation of the plan. The report
32 may also include unsupervised on-grounds privileges,
33 off-grounds privileges (with or without escort by personnel
34 of the Department of Human Services), home visits and
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1 participation in work programs, but only where such
2 privileges have been approved by specific court order, which
3 order may include such conditions on the defendant as the
4 Court may deem appropriate and necessary to reasonably assure
5 the defendant's satisfactory progress in treatment and the
6 safety of the defendant and others.
7 (c) Every defendant acquitted of a felony by reason of
8 insanity and subsequently found to be subject to involuntary
9 admission or in need of mental health services shall be
10 represented by counsel in all proceedings under this Section
11 and under the Mental Health and Developmental Disabilities
12 Code.
13 (1) The Court shall appoint as counsel the public
14 defender or an attorney licensed by this State.
15 (2) Upon filing with the Court of a verified
16 statement of legal services rendered by the private
17 attorney appointed pursuant to paragraph (1) of this
18 subsection, the Court shall determine a reasonable fee
19 for such services. If the defendant is unable to pay the
20 fee, the Court shall enter an order upon the State to pay
21 the entire fee or such amount as the defendant is unable
22 to pay from funds appropriated by the General Assembly
23 for that purpose.
24 (d) When the facility director determines that:
25 (1) the defendant is no longer subject to
26 involuntary admission or in need of mental health
27 services on an inpatient basis; and
28 (2) the defendant may be conditionally released
29 because he or she is still in need of mental health
30 services or that the defendant may be discharged as not
31 in need of any mental health services; or
32 (3) the defendant no longer requires placement in a
33 secure setting;
34 the facility director shall give written notice to the Court,
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1 State's Attorney and defense attorney. Such notice shall set
2 forth in detail the basis for the recommendation of the
3 facility director, and specify clearly the recommendations,
4 if any, of the facility director, concerning conditional
5 release. Any recommendation for conditional release shall
6 include an evaluation of the defendant's need for
7 psychotropic medication, what provisions should be made, if
8 any, to ensure that the defendant will continue to receive
9 psychotropic medication following discharge, and what
10 provisions should be made to assure the safety of the
11 defendant and others in the event the defendant is no longer
12 receiving psychotropic medication. Within 30 days of the
13 notification by the facility director, the Court shall set a
14 hearing and make a finding as to whether the defendant is:
15 (i) subject to involuntary admission; or
16 (ii) in need of mental health services in the form
17 of inpatient care; or
18 (iii) in need of mental health services but not
19 subject to involuntary admission or inpatient care; or
20 (iv) no longer in need of mental health services;
21 or
22 (v) no longer requires placement in a secure
23 setting.
24 Upon finding by the Court, the Court shall enter its
25 findings and such appropriate order as provided in subsection
26 (a) of this Section.
27 (e) A defendant admitted pursuant to this Section, or
28 any person on his behalf, may file a petition for treatment
29 plan review, transfer to a non-secure setting within the
30 Department of Human Services or discharge or conditional
31 release under the standards of this Section in the Court
32 which rendered the verdict. Upon receipt of a petition for
33 treatment plan review, transfer to a non-secure setting or
34 discharge or conditional release, the Court shall set a
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1 hearing to be held within 120 days. Thereafter, no new
2 petition may be filed for 120 days without leave of the
3 Court.
4 (f) The Court shall direct that notice of the time and
5 place of the hearing be served upon the defendant, the
6 facility director, the State's Attorney, and the defendant's
7 attorney. If requested by either the State or the defense or
8 if the Court feels it is appropriate, an impartial
9 examination of the defendant by a psychiatrist or clinical
10 psychologist as defined in Section 1-103 of the Mental Health
11 and Developmental Disabilities Code who is not in the employ
12 of the Department of Human Services shall be ordered, and the
13 report considered at the time of the hearing.
14 (g) The findings of the Court shall be established by
15 clear and convincing evidence. The burden of proof and the
16 burden of going forth with the evidence rest with the
17 defendant or any person on the defendant's behalf when a
18 hearing is held to review the determination of the facility
19 director that the defendant should be transferred to a
20 non-secure setting, discharged, or conditionally released or
21 when a hearing is held to review a petition filed by or on
22 behalf of the defendant. The evidence shall be presented in
23 open Court with the right of confrontation and
24 cross-examination.
25 (h) Before the court orders that the defendant be
26 discharged or conditionally released, it shall order the
27 facility director to establish a discharge plan that includes
28 a plan for the defendant's shelter, support, and medication.
29 If appropriate, the court shall order that the facility
30 director establish a program to train the defendant in
31 self-medication under standards established by the Department
32 of Human Services. If the Court finds that the defendant is
33 no longer in need of mental health services it shall order
34 the facility director to discharge the defendant. If the
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1 Court finds that the defendant is in need of mental health
2 services, and no longer in need of inpatient care, it shall
3 order the facility director to release the defendant under
4 such conditions as the Court deems appropriate and as
5 provided by this Section. Such conditional release shall be
6 imposed for a period of five years and shall be subject to
7 later modification by the Court as provided by this Section.
8 If the Court finds that the defendant is subject to
9 involuntary admission or in need of mental health services on
10 an inpatient basis, it shall order the facility director not
11 to discharge or release the defendant in accordance with
12 paragraph (b) of this Section.
13 (i) If within the period of the defendant's conditional
14 release the State's Attorney determines that the defendant
15 has not fulfilled the conditions of his or her release, the
16 State's Attorney may petition the Court to revoke or modify
17 the conditional release of the defendant. Upon the filing of
18 such petition the defendant may be remanded to the custody of
19 the Department, or to any other mental health facility
20 designated by the Department, pending the resolution of the
21 petition. Nothing in this Section shall prevent the
22 emergency admission of a defendant pursuant to Article VI of
23 Chapter III of the Mental Health and Developmental
24 Disabilities Code or the voluntary admission of the defendant
25 pursuant to Article IV of Chapter III of the Mental Health
26 and Developmental Disabilities Code. If the Court determines,
27 after hearing evidence, that the defendant has not fulfilled
28 the conditions of release, the Court shall order a hearing to
29 be held consistent with the provisions of paragraph (f) and
30 (g) of this Section. At such hearing, if the Court finds that
31 the defendant is subject to involuntary admission or in need
32 of mental health services on an inpatient basis, it shall
33 enter an order remanding him or her to the Department of
34 Human Services or other facility. If the defendant is
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1 remanded to the Department of Human Services, he or she shall
2 be placed in a secure setting unless the Court determines
3 that there are compelling reasons that such placement is not
4 necessary. If the Court finds that the defendant continues
5 to be in need of mental health services but not on an
6 inpatient basis, it may modify the conditions of the original
7 release in order to reasonably assure the defendant's
8 satisfactory progress in treatment and his or her safety and
9 the safety of others in accordance with the standards
10 established in paragraph (1) (D) of subsection (a). In no
11 event shall such conditional release be longer than eight
12 years. Nothing in this Section shall limit a Court's contempt
13 powers or any other powers of a Court.
14 (j) An order of admission under this Section does not
15 affect the remedy of habeas corpus.
16 (k) In the event of a conflict between this Section and
17 the Mental Health and Developmental Disabilities Code or the
18 Mental Health and Developmental Disabilities Confidentiality
19 Act, the provisions of this Section shall govern.
20 (l) This amendatory Act shall apply to all persons who
21 have been found not guilty by reason of insanity and who are
22 presently committed to the Department of Mental Health and
23 Developmental Disabilities (now the Department of Human
24 Services).
25 (m) The Clerk of the Court shall, after the entry of an
26 order of transfer to a non-secure setting of the Department
27 of Human Services or discharge or conditional release,
28 transmit a certified copy of the order to the Department of
29 Human Services, and the sheriff of the county from which the
30 defendant was admitted. In cases where the arrest of the
31 defendant or the commission of the offense took place in any
32 municipality with a population of more than 25,000 persons,
33 The Clerk of the Court shall also transmit a certified copy
34 of the order of discharge or conditional release to the
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1 Illinois Department of State Police, to the proper law
2 enforcement agency for the said municipality where the
3 offense took place, and to the sheriff of the county into
4 which the defendant is conditionally discharged. The
5 Illinois Department of State Police shall maintain a
6 centralized record of discharged or conditionally released
7 defendants while they are under court supervision for access
8 and use of appropriate law enforcement agencies provided the
9 municipality has requested such notice in writing.
10 (Source: P.A. 90-105, eff. 7-11-97; 90-593, eff. 6-19-98;
11 91-536, eff. 1-1-00; 91-770, eff. 1-1-01.)