SB1443sam001 98TH GENERAL ASSEMBLY

Sen. James F. Clayborne, Jr.

Filed: 3/6/2013

09800SB1443sam001 LRB098 08714 RLC 40617 a

AMENDMENT TO SENATE BILL 1443

AMENDMENT NO. ______. Amend Senate Bill 1443 by replacing everything after the enacting clause with the following:

"Section 5. The Juvenile Court Act of 1987 is amended by adding Part 5.5 to Article V as follows:

705 ILCS 405/Art. V Pt. 5.5 heading new

Part 5.5

JUVENILE FITNESS TO STAND TRIAL

(705 ILCS 405/5-5.5-101 new)

Sec. 5-5.5-101. Presumption of fitness; fitness standard. A minor is presumed to be fit to stand trial or to plead, and be sentenced. A minor is unfit if, because of his or her mental or physical condition, he or she is unable to understand the nature and purpose of the proceedings against him or her or to assist in his or her defense. For purposes of this Act, "mental condition" includes, but is not limited to, mental illness and developmental disability. A judge, at his or her discretion, may consider developmental immaturity as a factor.

(705 ILCS 405/5-5.5-105 new)

Sec. 5-5.5-105. Raising issue; burden; fitness motions.

(a) The issue of the minor's fitness for trial, to plead, or to be sentenced may be raised by the defense, the State, or the court at any appropriate time before a plea is entered or before, during, or after trial. When a bonafide doubt of the minor's fitness is raised, the court shall order a determination of the issue before proceeding further.

(b) Upon request of the minor that a qualified expert be appointed to examine him or her to determine prior to trial if a bonafide doubt as to his or her fitness to stand trial may be raised, the court, in its discretion, may order an appropriate examination. However, no order entered under this subsection shall prevent further proceedings in the case. An expert so appointed shall examine the minor and make a report as provided in Section 5-5.5-125. Upon the filing with the court of a verified statement of services rendered, the court shall enter an order on the county board to pay the expert a reasonable fee stated in the order.

(c) When a bonafide doubt of the minor's fitness has been raised, the burden of proving that the minor is fit by a preponderance of the evidence and the burden of going forward with the evidence are on the State. However, the court may call its own witnesses and conduct its own inquiry.

(d) Following a finding of unfitness, the court may hear and rule on any pretrial motion or motions if the minor's presence is not essential to a fair determination of the issues. A motion may be reheard upon a showing that evidence is available which was not available, due to the minor's unfitness, when the motion was first decided.

(705 ILCS 405/5-5.5-110 new)

Sec. 5-5.5-110. Right to jury. The issue of the minor's fitness may be determined in the first instance by the court or by a jury. The defense or the State may demand a jury or the court on its own motion may order a jury. However, when the issue is raised after trial has begun or after conviction but before sentencing, or when the issue is to be redetermined under Section 5-5.5-150 or 5-5.5-185, the issue shall be determined by the court.

(705 ILCS 405/5-5.5-115 new)

Sec. 5-5.5-115. Fitness examination.

(a) When the issue of fitness involves the minor's mental condition, the court shall order an examination of the minor by one or more licensed physicians, clinical psychologists, or psychiatrists chosen by the court. No physician, clinical psychologist, or psychiatrist employed by the Department of Human Services shall be ordered to perform, in his or her official capacity, an examination under this Section. Under this Act, the evaluator must have training in child development as well as training or experience in forensic practice.

(b) If the issue of fitness involves the minor's physical condition, the court shall appoint one or more physicians and in addition, other experts as it may deem appropriate to examine the minor and to report to the court regarding the minor's condition.

(c) An examination ordered under this Section shall be given at the place designated by the person who will conduct the examination, except that if the minor is being held in custody, the examination shall take place at the location as the court directs. No examinations under this Section shall be ordered to take place at mental health or developmental disabilities facilities operated by the Department of Human Services. If the minor fails to keep appointments without reasonable cause or if the person conducting the examination reports to the court that diagnosis requires hospitalization or extended observation, the court may order the minor admitted to an appropriate facility for an examination, other than a screening examination, for not more than 7 days. The court may, upon a showing of good cause, grant an additional 7 days to complete the examination.

(d) A juvenile who has been released from detention prior to trial shall not be placed back in detention based solely on the fact that a court has ordered an evaluation.

(e) Upon request by the defense and if the minor is indigent, the court may appoint, in addition to the expert or experts chosen under subsection (a) of this Section, a qualified expert selected by the minor to examine him and to make a report as provided in Section 5-5.5-125. Upon the filing with the court of a verified statement of services rendered, the court shall enter an order on the county board to pay the expert a reasonable fee stated in the order.

(705 ILCS 405/5-5.5-120 new)

Sec. 5-5.5-120. Use of statements made during examination or treatment.

(a) Statements made by the minor and information gathered in the course of any examination or treatment ordered under Section 5-5.5-115, 5-5.5-135, or 5-5.5-150 shall not be admissible against the minor unless he or she raises the defense of insanity or the defense of drugged or intoxicated condition, in which case the statements or information shall be admissible only on the issue of whether he or she was insane, drugged, or intoxicated. The refusal of the minor to cooperate in the examinations shall not preclude the raising of those defenses but shall preclude the minor from offering expert evidence or testimony tending to support the defenses if the expert evidence or testimony is based upon the expert's examination of the minor.

(b) Except as provided in paragraph (a) of this Section, no statement made by the minor in the course of any examination or treatment ordered under Section 5-5.5-115, 5-5.5-135, or 5-5.150 which relates to the crime charged or to other criminal acts shall be disclosed by persons conducting the examination or the treatment, except to members of the examining or treating team, without the informed written consent of the minor, who is competent at the time of giving the consent.

(c) The court shall advise the minor of the limitations on the use of any statements made or information gathered in the course of the fitness examination or subsequent treatment as provided in this Section. It shall also advise him or her that he or she may refuse to cooperate with the person conducting the examination, but that his or her refusal may be admissible into evidence on the issue of his or her mental or physical condition.

(705 ILCS 405/5-5.5-125 new)

Sec. 5-5.5-125. Report.

(a) The person or persons conducting an examination of the minor, under paragraph (a) or (b) of Section 5-5.5-115 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:

(1) a diagnosis and an explanation as to how it was reached and the facts upon which it is based;

(2) the minor's history and current status regarding any possible mental illness, intellectual disability, or physical disability;

(3) a description of the cognitive abilities of the minor associated with the minor's current level of development;

(4) the minor's functional abilities related to fitness, including the minor's ability to understand the nature and purpose of the proceedings against him or her or to assist in his or her defense;

(5) the relationship between the minor's diagnosis, disabilities, developmental characteristics, and functional abilities, identified above, and any mental condition resulting in deficits to the minor's functional abilities related to fitness; and

(6) if the evaluator believes the minor is in need of remediation or restoration services, the evaluator should discuss:

(i) whether the minor's deficits are likely to be remediated or restored within the statutory period;

(ii) any recommended interventions to aid in the remediation or restoration of the minor's fitness; and

(iii) whether it is more therapeutically appropriate to provide the interventions on an outpatient or inpatient basis.

(b) If the report indicates that the minor 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 minor attaining fitness within one year if provided with a course of treatment. If the person or persons preparing the report are unable to form that opinion, the report shall state the reasons for being able to form an opinion. The report may include a general description of the type of treatment needed and of the least physically restrictive form of treatment therapeutically appropriate.

(c) The report shall indicate what information, if any, contained in the report may be harmful to the mental condition of the minor if made known to him or her.

(705 ILCS 405/5-5.5-130 new)

Sec. 5-5.5-130. Fitness hearing.

(a) The court shall conduct a hearing to determine the minor's fitness within 14 days of receipt of the final written report unless agreed upon by all parties or for good cause shown; in which case the hearing shall be conducted no later than 45 days of receipt of the final written report of the person or persons conducting the examination or upon conclusion of the matter then pending before it, subject to continuances allowed under, Section 114-4 of the Code of Criminal Procedure of 1963.

(b) Subject to the rules of evidence, matters admissible on the issue of the minor's fitness include, but are not limited to, the following:

(1) the minor's knowledge and understanding of the charge, the proceedings, the consequences of a plea, judgment, or sentence, and the functions of the participants in the trial process;

(2) the minor's ability to observe, recollect, and relate occurrences, especially those concerning the incidents alleged, and to communicate with and assist counsel;

(3) the minor's social behavior and abilities; orientation as to time and place; recognition of persons, places, and things; and performance of motor processes; and strengths and weaknesses as they relate to the necessary abilities to be fit; and

(4) the relationship between the minor's fitness deficits and any mental or physical condition or developmental immaturity.

(c) The minor has the right to be present at every hearing on the issue of his or her fitness. The minor's presence may be waived only if there is filed with the court a certificate stating that the minor is physically unable to be present and the reasons therefor. The certificate shall be signed by a licensed physician who, within 7 days, has examined the minor.

(d) On the basis of the evidence before it, the court or jury shall determine whether the minor is fit to stand trial or to plead. If it finds that the minor is unfit, the court or the jury shall determine whether there is substantial probability that the minor, if provided with a course of treatment, will attain fitness within one year. If the court or the jury finds that there is not a substantial probability, the court shall proceed as provided in Section 5-5.5-165. If the probability is found or if the court or the jury is unable to determine whether a substantial probability exists, the court shall order the minor to undergo treatment for the purpose of rendering him fit. In the event that a minor is ordered to undergo treatment when there has been no determination as to the probability of his or her attaining fitness, the court shall conduct a hearing as soon as possible following the receipt of the report filed under paragraph (d) of Section 5-5.5-135, unless the hearing is waived by the defense, and shall make a determination as to whether a substantial probability exists.

(e) An order finding the minor unfit is a final order for purposes of appeal by the State or the minor.

(705 ILCS 405/5-5.5-135 new)

Sec. 5-5.5-135. Commitment for treatment; treatment plan.

(a) The court shall select the least physically restrictive form of treatment therapeutically appropriate and consistent with the treatment recommendations.

(b) When a minor's finding of unfitness is based upon mental illness, developmental disability, developmental immaturity, or physical limitations, the court may order the minor placed under the supervision of the Department of Human Services which shall place and maintain the minor in a suitable treatment program or facility, or the court may order the minor placed in an appropriate public or private treatment program or facility which has agreed to provide treatment to the minor. The placement may be ordered either on an outpatient or inpatient basis, whichever is therapeutically appropriate and least restrictive.

(c) If the minor's disability is physical, the court may order the minor placed under the supervision of the Department of Human Services which shall place and maintain the minor in a suitable treatment facility or program, or the court may order the minor placed in an appropriate public or private facility or treatment program which has agreed to provide treatment to the minor. The placement may be ordered either on an inpatient or an outpatient basis, whichever is therapeutically appropriate and least restrictive.

(d) The clerk of the circuit court shall transmit to the Department, agency, or institution, if any, to which the minor is remanded for treatment, the following:

(1) a certified copy of the order to undergo treatment;

(2) the county and municipality where the offense is alleged to have been committed;

(3) the county and municipality in which the arrest took place;

(4) a copy of the arrest report, criminal charges, arrest record, jail record, and the report prepared under Section 5-5.5-125; and

(5) any additional matters which the court directs the clerk to transmit.

(e) Within 30 days of entry of an order to undergo treatment, the person supervising the minor's treatment shall file with the court, the State, and the defense a report assessing the facility's or program's capacity to provide appropriate treatment for the minor and indicating his or her opinion as to the probability of the minor's attaining fitness within a period of one year from the date of the finding of unfitness. If the report indicates that there is a substantial probability that the minor will attain fitness within the time period, the treatment supervisor shall also file a treatment plan which shall include:

(1) a diagnosis of the minor's disability;

(2) a description of treatment goals with respect to rendering the minor fit, a specification of the proposed treatment modalities, and an estimated timetable for attainment of the goals; and

(3) an identification of the person in charge of supervising the minor's treatment.

(705 ILCS 405/5-5.5-140 new)

Sec. 5-5.5-140. Progress reports.

(a) The treatment supervisor shall submit a written progress report to the court, the State, and the defense:

(1) at least 7 days prior to the date for any hearing on the issue of the minor's fitness;

(2) whenever he or she believes that the minor has attained fitness; or

(3) whenever he or she believes that there is not a substantial probability that the minor will attain fitness, with treatment, within one year from the date of the original finding of unfitness.

(b) The progress report shall contain:

(1) the clinical findings of the treatment supervisor and the facts upon which the findings are based;

(2) the opinion of the treatment supervisor as to whether the minor has attained fitness or as to whether the minor is making progress, under treatment, toward attaining fitness within one year from the date of the original finding of unfitness; and

(3) if the minor is receiving medication, information from the prescribing physician indicating the type, the dosage, and the effect of the medication on the minor's appearance, actions, and demeanor.

(705 ILCS 405/5-5.5-145 new)

Sec. 5-5.5-145. Records. Any report filed of record with the court concerning diagnosis, treatment, or treatment plans made under this Article shall not be placed in the minor's court record but shall be maintained separately by the clerk of the court and shall be available only to the court or an appellate court, the State, the defense, a facility or program which is providing treatment to the minor under an order of the court, or other persons as the court may direct.

(705 ILCS 405/5-5.5-150 new)

Sec. 5-5.5-150. Ninety-day hearings; continuing treatment.

(a) Upon entry or continuation of any order to undergo treatment, the court shall set a date for hearing to reexamine the issue of the minor's fitness not more than 90 days thereafter. In addition, whenever the court receives a report from the supervisor of the minor's treatment under paragraph (2) or (3) of subsection (a) of Section 5-5.5-140, the court shall immediately set the matter for a first hearing within 14 days unless good cause is shown why the hearing cannot be held. On the date set or upon conclusion of the matter then pending before it, the court, sitting without a jury, shall conduct a hearing, unless waived by the defense, and shall determine:

(1) whether the minor is fit to stand trial or to plead; and if not,

(2) whether the minor is making progress under treatment toward attainment of fitness within one year from the date of the original finding of unfitness.

(b) If the court finds the minor to be fit under this Section, the court shall set the matter for trial; however, if the minor is in need of continued care or treatment and the supervisor of the minor's treatment agrees to continue to provide it, the court may enter any order it deems appropriate for the continued care or treatment of the minor by the facility or program pending the conclusion of the criminal proceedings.

(c) If the court finds that the minor is still unfit but that he or she is making progress toward attaining fitness, the court may continue or modify its original treatment order entered under Section 5-5.5-135.

(d) If the court finds that the minor is still unfit and that he or she is not making progress toward attaining fitness such that there is not a substantial probability that he or she will attain fitness within one year from the date of the original finding of unfitness, the court shall proceed under Section 5-5.5-165. However, if the minor is in need of continued care and treatment and the supervisor of the minor's treatment agrees to continue to provide it, the court may enter any order it deems appropriate for the continued care or treatment by the facility or program pending the conclusion of the criminal proceedings.

(705 ILCS 405/5-5.5-155 new)

Sec. 5-5.5-155. Medication.

(a) A minor who is receiving psychotropic medication shall not be presumed to be unfit to stand trial solely by virtue of the receipt of those drugs or medications.

(b) Whenever a minor who is receiving medication under medical direction is transferred between a place of custody and a treatment facility or program, a written report from the prescribing physician shall accompany the minor. The report shall state the type and dosage of the minor's medication and the duration of the prescription. The chief officer of the place of custody or the treatment supervisor at the facility or program shall insure that the medication is provided according to the directions of the prescribing physician or until superseded by order of a physician who has examined the minor.

(c) If a minor who is deemed incompetent is in need of medication, care will be taken by the treatment provider to provide the medicine expected to assist in the restoration of competency, whether or not that medication is on the formulary.

(705 ILCS 405/5-5.5-160 new)

Sec. 5-5.5-160. Trial with special provisions and assistance.

(a) On motion of the minor, the State, or on the court's own motion, the court shall determine whether special provisions or assistance will render the minor fit to stand trial as defined in Section 5-5.5-101.

(b) The special provisions or assistance may include but are not limited to:

(1) Appointment of qualified translators who shall simultaneously translate all testimony at trial into language understood by the minor.

(2) Appointment of experts qualified to assist a minor who because of a disability is unable to understand the proceedings or communicate with his or her attorney.

(c) The case may proceed to trial only if the court determines that the provisions or assistance compensate for a minor's disabilities so as to render the minor fit as defined in Section 5-5.5-101. In that case the court shall state for the record the following:

(1) the qualifications and experience of the experts or other persons appointed to provide special assistance to the minor;

(2) the court's reasons for selecting or appointing the experts or other persons to provide the special assistance to the minor;

(3) how the appointment of the expert or other persons will serve the goal of rendering the minor fit in view of the appointee's qualifications and experience, taken in conjunction with the particular disabilities of the minor; and

(4) any other factors considered by the court in appointing that expert or person.

(705 ILCS 405/5-5.5-165 new)

Sec. 5-5.5-165. Unfit minors. Cases involving an unfit minor who demands a discharge hearing or a minor who cannot become fit to stand trial and for whom no special provisions or assistance can compensate for his or her disability and render the minor fit shall proceed in the following manner:

(1) Upon a determination that there is not a substantial probability that the minor will attain fitness within one year from the original finding of unfitness, a minor or the attorney for the minor may move for a discharge hearing under the provisions of Section 5-5.5-175. The discharge hearing shall be held within 120 days of the filing of a motion for a discharge hearing, unless the delay is occasioned by the minor.

(2) If at any time the court determines that there is not a substantial probability that the minor will become fit to stand trial or to plead within one year from the date of the original finding of unfitness, or if at the end of one year from that date the court finds the minor still unfit and for whom no special provisions or assistance can compensate for his or her disabilities and render the minor fit, the State shall request the court:

(A) to set the matter for hearing under Section 5-5.5-175 unless a hearing has already been held under paragraph (1) of this Section; or

(B) to release the minor from custody and to dismiss with prejudice the charges against the minor; or

(C) to remand the minor to the custody of the Department of Human Services and order a hearing to be conducted under the provisions of the Mental Health and Developmental Disabilities Code. The Department of Human Services shall have 7 days from the date it receives the minor to prepare and file the necessary petition and certificates that are required for commitment under the Mental Health and Developmental Disabilities Code. If the minor is committed to the Department of Human Services under the hearing, the court having jurisdiction over the criminal matter shall dismiss the charges against the minor, with the leave to reinstate. In those cases the Department of Human Services shall notify the court, the State's Attorney, and the defense attorney upon the discharge of the minor. A former minor so committed shall be treated in the same manner as any other civilly committed patient for all purposes including admission, selection of the place of treatment and the treatment modalities, entitlement to rights and privileges, transfer, and discharge. A minor who is not committed shall be remanded to the court having jurisdiction of the criminal matter for disposition under subparagraph (A) or (B) of paragraph (2) of this Section.

(3) If the minor is restored to fitness and the original charges against the minor are reinstated, the speedy trial provisions of Section 103-5 of the Code of Criminal Procedure of 1963 shall commence to run.

(705 ILCS 405/5-5.5-170 new)

Sec. 5-5.5-170. Time credit. Time spent in custody under orders issued under Section 5-5.5-135 or 5-5.5-150 or pursuant to a commitment to the Department of Human Services following a finding of unfitness or incompetency under prior law, shall be credited against any sentence imposed on the minor in the pending criminal case or in any other case arising out of the same conduct.

(705 ILCS 405/5-5.5-175 new)

Sec. 5-5.5-175. Discharge hearing.

(a) As provided for in paragraph (1) of Section 5-5.5-165 and subparagraph (A) of paragraph (2) of Section 5-5.5-165 a hearing to determine the sufficiency of the evidence shall be held. The hearing shall be conducted by the court without a jury. The State and the minor may introduce evidence relevant to the question of minor's guilt of the crime charged. The court may admit hearsay or affidavit evidence on secondary matters such as testimony to establish the chain of possession of physical evidence, laboratory reports, authentication of transcripts taken by official reporters, court and business records, and public documents.

(b) If the evidence does not prove the minor guilty beyond a reasonable doubt, the court shall enter a judgment of acquittal; however, nothing in this Article shall prevent the State from requesting the court to commit the minor to the Department of Human Services under the provisions of the Mental Health and Developmental Disabilities Code.

(c) If the minor is found not guilty by reason of insanity, the court shall enter a judgment of acquittal and the proceedings after acquittal by reason of insanity under Section 5-2-4 of the Unified Code of Corrections shall apply.

(d) If the discharge hearing does not result in an acquittal of the charge the minor may be remanded for further treatment and the one year time limit set forth in Section 5-5.5-165 shall be extended as follows:

(1) if the most serious charge upon which the State sustained its burden of proof was a Class 1 or Class X felony, the treatment period may be extended up to a maximum treatment period of 2 years; if a Class 2, 3, or 4 felony, the treatment period may be extended up to a maximum of 15 months; or

(2) if the State sustained its burden of proof on a charge of first degree murder, the treatment period may be extended up to a maximum treatment period of 5 years.

(e) Transcripts of testimony taken at a discharge hearing may be admitted in evidence at a subsequent trial of the minor, subject to the rules of evidence, if the witness who gave the testimony is legally unavailable at the time of the subsequent trial.

(f) If the court fails to enter an order of acquittal the minor may appeal from the judgment in the same manner provided for an appeal from a conviction in a criminal case.

(g) At the expiration of an extended period of treatment ordered under this Section:

(1) Upon a finding that the minor is fit or can be rendered fit consistent with Section 5-5.5-160, the court may proceed with trial.

(2) If the minor continues to be unfit to stand trial, the court shall determine whether he or she is subject to involuntary admission under the Mental Health and Developmental Disabilities Code or constitutes a serious threat to the public safety. If so found, the minor shall be remanded to the Department of Human Services for further treatment and shall be treated in the same manner as a civilly committed patient for all purposes, except that the original court having jurisdiction over the minor shall be required to approve any conditional release or discharge of the minor, for the period of commitment equal to the maximum sentence to which the minor would have been subject had he or she been convicted in a criminal proceeding. During this period of commitment, the original court having jurisdiction over the minor shall hold hearings under subparagraph (A) of this paragraph (2). However, if the minor is remanded to the Department of Human Services, the minor shall be placed in a secure setting unless the court determines that there are compelling reasons why the placement is not necessary. If the minor does not have a current treatment plan, then within 3 days of admission under this paragraph (2), a treatment plan shall be prepared for the minor and entered into his or her record. The plan shall include (i) an assessment of the minor's treatment needs, (ii) a description of the services recommended for treatment, (iii) the goals of each type of element of service, (iv) an anticipated timetable for the accomplishment of the goals, and (v) a designation of the qualified professional responsible for the implementation of the plan. The plan shall be reviewed and updated as the clinical condition warrants, but not less than every 30 days. Every 90 days after the initial admission under this paragraph (2), the facility director shall file a typed treatment plan report with the original court having jurisdiction over the minor. The report shall include an opinion as to whether the minor is fit to stand trial and whether the minor 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 5 items required in a treatment plan. A copy of the report shall be forwarded to the clerk of the court, the State's Attorney, and the minor's attorney if the minor is represented by counsel.

The court on its own motion may order a hearing to review the treatment plan. The minor or the State's Attorney may request a treatment plan review every 90 days and the court shall review the current treatment plan to determine whether the plan complies with the requirements of this Section. The court may order an independent examination on its own initiative and shall order an evaluation if either the recipient or the State's Attorney so requests and has demonstrated to the court that the plan cannot be effectively reviewed by the court without the an examination. Under no circumstances shall the court be required to order an independent examination under this Section more than once each year. The examination shall be conducted 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. If, during the period within which the minor is confined in a secure setting, the court enters an order that requires the minor to appear, the court shall timely transmit a copy of the order or writ to the director of the particular Department of Human Services facility where the minor resides authorizing the transportation of the minor to the court for the purpose of the hearing.

(A) 180 days after a minor is remanded to the Department of Human Services, under paragraph (2), and every 180 days thereafter for so long as the minor is confined under the order entered thereunder, the court shall set a hearing and shall direct that notice of the time and place of the hearing be served upon the minor, the facility director, the State's Attorney, and the minor's attorney. If requested by either the State or the defense or if the court determines that it is appropriate, an impartial examination of the minor 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. If the minor is not currently represented by counsel the court shall appoint counsel to represent the minor at the hearing. The court shall make a finding as to whether the minor is:

(i) subject to involuntary admission;

(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 nor inpatient care. The findings of the court shall be established by clear and convincing evidence and the burden of proof and the burden of going forward with the evidence shall rest with the State's Attorney. Upon finding by the court, the court shall enter its findings and an appropriate order.

(B) The terms "subject to involuntary admission", "in need of mental health services in the form of inpatient care" and "in need of mental health services but not subject to involuntary admission nor inpatient care" shall have the meanings ascribed to them in paragraph (3) of subsection (d) of Section 5-2-4 of the Unified Code of Corrections.

(3) If the minor is not committed under this Section, he or she shall be released.

(4) In no event may the treatment period be extended to exceed the maximum sentence to which a minor would have been subject had he or she been convicted in a criminal proceeding. For purposes of this Section, the maximum sentence shall be determined by Section 5-8-1 (730 ILCS 5/5-8-1) or Article 4.5 of Chapter V of the Unified Code of Corrections, excluding any sentence of natural life. The treatment period cannot extend beyond the jurisdiction of this Act.

(705 ILCS 405/5-5.5-180 new)

Sec. 5-5.5-180. Disposition of minors suffering disabilities.

(a) A minor convicted following a trial conducted under the provisions of Section 5-5.5-160 shall not be sentenced before a written presentence report of investigation is presented to and considered by the court. The presentence report shall be prepared under Sections 5-3-2, 5-3-3, and 5-3-4 of the Unified Code of Corrections and shall include a physical and mental examination unless the court finds that the reports of prior physical and mental examinations conducted under this Article are adequate and recent enough so that additional examinations would be unnecessary.

(b) A minor convicted following a trial under Section 5-5.5-160 shall not be subject to the death penalty.

(c) A minor convicted following a trial under Section 5-5.5-160 shall be sentenced according to the procedures and dispositions authorized under the Unified Code of Corrections subject to the following provisions:

(1) The court shall not impose a sentence of imprisonment upon the minor if the court believes that because of his or her disability a sentence of imprisonment would not serve the ends of justice and the interests of society and the minor or that because of his or her disability a sentence of imprisonment would subject the offender to excessive hardship. In addition to any other conditions of a sentence of conditional discharge or probation the court may require that the minor undergo treatment appropriate to his or her mental or physical condition.

(2) After imposing a sentence of imprisonment upon a minor who has a mental disability, the court may remand him or her to the custody of the Department of Human Services and order a hearing to be conducted under the provisions of the Mental Health and Developmental Disabilities Code. If the minor is committed following the hearing, he or she shall be treated in the same manner as any other civilly committed patient for all purposes except as provided in this Section. If the minor is not committed under the hearing, he or she shall be remanded to the sentencing court for disposition according to the sentence imposed.

(3) If the court imposes a sentence of imprisonment upon a minor who has a mental disability but does not proceed under paragraph (2) of subsection (c) of this Section, it shall order the Department of Corrections to proceed under Section 3-8-5 of the Unified Code of Corrections.

(4) If the court imposes a sentence of imprisonment upon a minor who has a physical disability, it may authorize the Department of Corrections to place the minor in a public or private facility which is able to provide care or treatment for the minor's disability and which agrees to do so.

(5) When a minor is placed with the Department of Human Services or another facility under paragraph (2) or (4) of this subsection (c), the Department or private facility shall not discharge or allow the minor to be at large in the community without prior approval of the court. If the minor is placed in the custody of the Department of Human Services, the minor shall be placed in a secure setting unless the court determines that there are compelling reasons why the placement is not necessary. The minor shall accrue good time and shall be eligible for parole in the same manner as if he or she were serving his or her sentence within the Department of Corrections. When the minor no longer requires hospitalization, care, or treatment, the Department of Human Services or the facility shall transfer him or her, if his or her sentence has not expired, to the Department of Corrections. If a minor is transferred to the Department of Corrections, the Department of Human Services shall transfer to the Department of Corrections all related records pertaining to length of custody and treatment services provided during the time the minor was held.

(6) The Department of Corrections shall notify the Department of Human Services or a facility in which a minor has been placed under paragraph (2) or (4) of subsection (c) of this Section of the expiration of his or her sentence. Thereafter, a minor in the Department of Human Services shall continue to be treated under his commitment order and shall be considered a civilly committed patient for all purposes including discharge. A minor who is in a facility under paragraph (4) of subsection (c) of this Section shall be informed by the facility of the expiration of his or her sentence, and shall either consent to the continuation of his or her care or treatment by the facility or shall be discharged.

(705 ILCS 405/5-5.5-185 new)

Sec. 5-5.5-185. Minors found unfit prior to the effective date of this Article; reports; appointment of counsel.

(a) Within 180 days after the effective date of this Article, the Department of Human Services shall compile a report on each minor under its custody who was found unfit or incompetent to stand trial or to be sentenced prior to the effective date of this Article. Each report shall include the minor's name, indictment and warrant numbers, the county of his or her commitment, the length of time he or she has been hospitalized, the date of his or her last fitness hearing, and a report on his or her present status as provided in Section 5-5.5-140.

(b) The reports shall be forwarded to the Supreme Court which shall distribute copies thereof to the chief judge of the court in which the criminal charges were originally filed, to the State's Attorney and the public defender of the same county, and to the minor's attorney of record, if any. Notice that the report has been delivered shall be given to the minor.

(c) Upon receipt of the report, the chief judge shall appoint the public defender or other counsel for each minor who is not represented by counsel and who is indigent under Section 113-3 of the Code of Criminal Procedure of 1963. The court shall provide the minor's counsel with a copy of the report.

(705 ILCS 405/5-5.5-190 new)

Sec. 5-5.5-190. Disposition of minors found unfit prior to the effective date of this Article.

(a) Upon reviewing the report, the court shall determine whether the minor has been in the custody of the Department of Human Services for a period of time equal to the length of time that the minor would have been required to serve, less good time, before becoming eligible for parole or mandatory supervised release had he or she been convicted of the most serious offense charged and had he or she received the maximum sentence therefor. If the court so finds, it shall dismiss the charges against the minor, with leave to reinstate. If the minor has not been committed under the Mental Health and Developmental Disabilities Code, the court shall order him or her discharged or shall order a hearing to be conducted immediately under the provisions of the Code. If the minor was committed under the Code, he or she shall continue to be treated under his or her commitment order and shall be considered a civilly committed patient for all purposes including discharge.

(b) If the court finds that a minor has been in the custody of the Department of Human Services for a period less than that specified in paragraph (a) of this Section, the court shall conduct a hearing under Section 5-5.5-150 immediately to redetermine the issue of the minor's fitness to stand trial or to plead. If the minor is fit, the matter shall be set for trial. If the court finds that the minor is unfit, it shall proceed under Section 5-5.5-150 or 5-5.5-165; however, a minor who is still unfit and who has been in the custody of the Department of Human Services for a period of more than one year from the date of the finding of unfitness shall be immediately subject to the provisions of Section 5-5.5-165.

(705 ILCS 405/5-5.5-195 new)

Sec. 5-5.5-195. Conflict. In the event of any conflict between this Article and the Mental Health and Developmental Disabilities Code, the provisions of this Article shall govern.

(705 ILCS 405/5-5.5-200 new)

Sec. 5-5.5-200. Notice to law enforcement agencies regarding release of minors.

(a) Prior to the release by the Department of Human Services of any person admitted under any provision of this Article, the Department of Human Services shall give written notice to the sheriff of the county where the minor was admitted. In cases where the arrest of the minor or the commission of the offense took place in any municipality with a population of more than 25,000, the Department of Human Services shall also give written notice to the proper law enforcement agency for the municipality, provided the municipality has requested the notice in writing.

(b) Where a minor in the custody of the Department of Human Services under any provision of this Article is released under an order of court, the clerk of the circuit court shall, after the entry of the order, transmit a certified copy of the order of release to the Department of Human Services and the Sheriff of the county where the minor was admitted. In cases where the arrest of the minor or the commission of the offense took place in any municipality with a population of more than 25,000, the clerk of the circuit court shall also send a certified copy of the order of release to the proper law enforcement agency for the municipality provided the municipality has requested the notice in writing.

(705 ILCS 405/5-5.5-205 new)

Sec. 5-5.5-205. Security and transportation. No minor placed in a setting of the Department of Human Services under the provisions of Sections 5-5.5-135, 5-5.5-175, or 5-5.5-180 shall be permitted outside the facility's housing unit unless escorted or accompanied by personnel of the Department of Human Services or authorized by court order. Any minor placed in a secure setting under 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 minor 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. Nor shall any minor be permitted any off-grounds privileges, either with or without escort by personnel of the Department of Human Services, any unsupervised on-ground privileges, or placement in a non-secure setting unless the off-grounds or unsupervised on-grounds privileges, or placement in a non-secure setting have been approved by specific court order, which order may include the conditions on the minor as the court may deem appropriate and necessary to reasonably assure the minor's satisfactory progress in treatment and the safety of the minor or others. Whenever the court receives a report from the supervisor of the minor's treatment recommending the minor for any off-grounds or unsupervised on-grounds privileges, or placement in a non-secure setting, the court shall set the matter for a first hearing within 21 days unless good cause is shown why the hearing cannot be held. The changes made to this Section by this amendatory Act of the 98th General Assembly are declarative of existing law and shall not be construed as a new enactment.".