101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB3221

 

Introduced , by Rep. Justin Slaughter

 

SYNOPSIS AS INTRODUCED:
 
730 ILCS 5/5-2-4  from Ch. 38, par. 1005-2-4

    Amends the Unified Code of Corrections. Provides that before the expiration of the conditional release of a person found not guilty by reason of insanity, the Department of Human Services shall conduct an assessment of the person's need for continuing treatment prior to the termination of his or her conditional release and shall arrange for mental health services for the person after the person's conditional release. Provides that the court may order an extension of the person's conditional release for a term as determined by the court based on the assessment (rather than 5 years).


LRB101 10603 RLC 55709 b

 

 

A BILL FOR

 

HB3221LRB101 10603 RLC 55709 b

1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Unified Code of Corrections is amended by
5changing 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
8insanity.
9    (a) After a finding or verdict of not guilty by reason of
10insanity under Sections 104-25, 115-3, or 115-4 of the Code of
11Criminal Procedure of 1963, the defendant shall be ordered to
12the Department of Human Services for an evaluation as to
13whether he is in need of mental health services. The order
14shall specify whether the evaluation shall be conducted on an
15inpatient or outpatient basis. If the evaluation is to be
16conducted on an inpatient basis, the defendant shall be placed
17in a secure setting. With the court order for evaluation shall
18be sent a copy of the arrest report, criminal charges, arrest
19record, jail record, any report prepared under Section 115-6 of
20the Code of Criminal Procedure of 1963, and any statement
21prepared under Section 6 of the Rights of Crime Victims and
22Witnesses Act. The clerk of the circuit court shall transmit
23this information to the Department within 5 days. If the court

 

 

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1orders that the evaluation be done on an inpatient basis, the
2Department shall evaluate the defendant to determine to which
3secure facility the defendant shall be transported and, within
420 days of the transmittal by the clerk of the circuit court of
5the placement court order, notify the sheriff of the designated
6facility. Upon receipt of that notice, the sheriff shall
7promptly transport the defendant to the designated facility.
8During the period of time required to determine the appropriate
9placement, the defendant shall remain in jail. If, within 20
10days of the transmittal by the clerk of the circuit court of
11the placement court order, the Department fails to notify the
12sheriff of the identity of the facility to which the defendant
13shall be transported, the sheriff shall contact a designated
14person within the Department to inquire about when a placement
15will become available at the designated facility and bed
16availability at other facilities. If, within 20 days of the
17transmittal by the clerk of the circuit court of the placement
18court order, the Department fails to notify the sheriff of the
19identity of the facility to which the defendant shall be
20transported, the sheriff shall notify the Department of its
21intent to transfer the defendant to the nearest secure mental
22health facility operated by the Department and inquire as to
23the status of the placement evaluation and availability for
24admission to the facility operated by the Department by
25contacting a designated person within the Department. The
26Department shall respond to the sheriff within 2 business days

 

 

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1of the notice and inquiry by the sheriff seeking the transfer
2and the Department shall provide the sheriff with the status of
3the placement evaluation, information on bed and placement
4availability, and an estimated date of admission for the
5defendant and any changes to that estimated date of admission.
6If the Department notifies the sheriff during the 2 business
7day period of a facility operated by the Department with
8placement availability, the sheriff shall promptly transport
9the defendant to that facility. Individualized placement
10evaluations by the Department of Human Services determine the
11most appropriate setting for forensic treatment based upon a
12number of factors including mental health diagnosis, proximity
13to surviving victims, security need, age, gender, and proximity
14to family.
15    The Department shall provide the Court with a report of its
16evaluation within 30 days of the date of this order. The Court
17shall hold a hearing as provided under the Mental Health and
18Developmental Disabilities Code to determine if the individual
19is: (a) in need of mental health services on an inpatient
20basis; (b) in need of mental health services on an outpatient
21basis; (c) a person not in need of mental health services. The
22court shall afford the victim the opportunity to make a written
23or oral statement as guaranteed by Article I, Section 8.1 of
24the Illinois Constitution and Section 6 of the Rights of Crime
25Victims and Witnesses Act. The court shall allow a victim to
26make an oral statement if the victim is present in the

 

 

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1courtroom and requests to make an oral statement. An oral
2statement includes the victim or a representative of the victim
3reading the written statement. The court may allow persons
4impacted by the crime who are not victims under subsection (a)
5of Section 3 of the this Rights of Crime Victims and Witnesses
6Act to present an oral or written statement. A victim and any
7person making an oral statement shall not be put under oath or
8subject to cross-examination. The court shall consider any
9statement presented along with all other appropriate factors in
10determining the sentence of the defendant or disposition of the
11juvenile. All statements shall become part of the record of the
12court.
13    If the defendant is found to be in need of mental health
14services on an inpatient care basis, the Court shall order the
15defendant to the Department of Human Services. The defendant
16shall be placed in a secure setting. Such defendants placed in
17a secure setting shall not be permitted outside the facility's
18housing unit unless escorted or accompanied by personnel of the
19Department of Human Services or with the prior approval of the
20Court for unsupervised on-grounds privileges as provided
21herein. Any defendant placed in a secure setting pursuant to
22this Section, transported to court hearings or other necessary
23appointments off facility grounds by personnel of the
24Department of Human Services, shall be placed in security
25devices or otherwise secured during the period of
26transportation to assure secure transport of the defendant and

 

 

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1the safety of Department of Human Services personnel and
2others. These security measures shall not constitute restraint
3as defined in the Mental Health and Developmental Disabilities
4Code. If the defendant is found to be in need of mental health
5services, but not on an inpatient care basis, the Court shall
6conditionally release the defendant, under such conditions as
7set forth in this Section as will reasonably assure the
8defendant's satisfactory progress and participation in
9treatment or rehabilitation and the safety of the defendant,
10the victim, the victim's family members, and others. If the
11Court finds the person not in need of mental health services,
12then the Court shall order the defendant discharged from
13custody.
14    (a-1) Definitions. For the purposes of this Section:
15        (A) (Blank).
16        (B) "In need of mental health services on an inpatient
17    basis" means: a defendant who has been found not guilty by
18    reason of insanity but who, due to mental illness, is
19    reasonably expected to inflict serious physical harm upon
20    himself or another and who would benefit from inpatient
21    care or is in need of inpatient care.
22        (C) "In need of mental health services on an outpatient
23    basis" means: a defendant who has been found not guilty by
24    reason of insanity who is not in need of mental health
25    services on an inpatient basis, but is in need of
26    outpatient care, drug and/or alcohol rehabilitation

 

 

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1    programs, community adjustment programs, individual,
2    group, or family therapy, or chemotherapy.
3        (D) "Conditional Release" means: the release from
4    either the custody of the Department of Human Services or
5    the custody of the Court of a person who has been found not
6    guilty by reason of insanity under such conditions as the
7    Court may impose which reasonably assure the defendant's
8    satisfactory progress in treatment or habilitation and the
9    safety of the defendant, the victim, the victim's family,
10    and others. The Court shall consider such terms and
11    conditions which may include, but need not be limited to,
12    outpatient care, alcoholic and drug rehabilitation
13    programs, community adjustment programs, individual,
14    group, family, and chemotherapy, random testing to ensure
15    the defendant's timely and continuous taking of any
16    medicines prescribed to control or manage his or her
17    conduct or mental state, and periodic checks with the legal
18    authorities and/or the Department of Human Services. The
19    Court may order as a condition of conditional release that
20    the defendant not contact the victim of the offense that
21    resulted in the finding or verdict of not guilty by reason
22    of insanity or any other person. The Court may order the
23    Department of Human Services to provide care to any person
24    conditionally released under this Section. The Department
25    may contract with any public or private agency in order to
26    discharge any responsibilities imposed under this Section.

 

 

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1    The Department shall monitor the provision of services to
2    persons conditionally released under this Section and
3    provide periodic reports to the Court concerning the
4    services and the condition of the defendant. Whenever a
5    person is conditionally released pursuant to this Section,
6    the State's Attorney for the county in which the hearing is
7    held shall designate in writing the name, telephone number,
8    and address of a person employed by him or her who shall be
9    notified in the event that either the reporting agency or
10    the Department decides that the conditional release of the
11    defendant should be revoked or modified pursuant to
12    subsection (i) of this Section. Such conditional release
13    shall be for a period of five years. Before the expiration
14    of the conditional release of a person found not guilty by
15    reason of insanity, the Department of Human Services shall
16    conduct an assessment of the person's need for continuing
17    treatment prior to the termination of his or her
18    conditional release and shall arrange for mental health
19    services for the person after the person's conditional
20    release. However, the defendant, the person or facility
21    rendering the treatment, therapy, program or outpatient
22    care, the Department, or the State's Attorney may petition
23    the Court for an extension of the conditional release
24    period for an additional period as determined by the court
25    based on the assessment 5 years. Upon receipt of such a
26    petition, the Court shall hold a hearing consistent with

 

 

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1    the provisions of paragraph (a), this paragraph (a-1), and
2    paragraph (f) of this Section, shall determine whether the
3    defendant should continue to be subject to the terms of
4    conditional release, and shall enter an order either
5    extending the defendant's period of conditional release
6    for an additional 5-year period as determined by the court
7    based on the assessment or discharging the defendant.
8    Additional 5-year periods of conditional release may be
9    ordered following a hearing as provided in this Section.
10    However, in no event shall the defendant's period of
11    conditional release continue beyond the maximum period of
12    commitment ordered by the Court pursuant to paragraph (b)
13    of this Section. These provisions for extension of
14    conditional release shall only apply to defendants
15    conditionally released on or after August 8, 2003. However,
16    the extension provisions of Public Act 83-1449 apply only
17    to defendants charged with a forcible felony.
18        (E) "Facility director" means the chief officer of a
19    mental health or developmental disabilities facility or
20    his or her designee or the supervisor of a program of
21    treatment or habilitation or his or her designee.
22    "Designee" may include a physician, clinical psychologist,
23    social worker, nurse, or clinical professional counselor.
24    (b) If the Court finds the defendant in need of mental
25health services on an inpatient basis, the admission,
26detention, care, treatment or habilitation, treatment plans,

 

 

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1review proceedings, including review of treatment and
2treatment plans, and discharge of the defendant after such
3order shall be under the Mental Health and Developmental
4Disabilities Code, except that the initial order for admission
5of a defendant acquitted of a felony by reason of insanity
6shall be for an indefinite period of time. Such period of
7commitment shall not exceed the maximum length of time that the
8defendant would have been required to serve, less credit for
9good behavior as provided in Section 5-4-1 of the Unified Code
10of Corrections, before becoming eligible for release had he
11been convicted of and received the maximum sentence for the
12most serious crime for which he has been acquitted by reason of
13insanity. The Court shall determine the maximum period of
14commitment by an appropriate order. During this period of time,
15the defendant shall not be permitted to be in the community in
16any manner, including, but not limited to, off-grounds
17privileges, with or without escort by personnel of the
18Department of Human Services, unsupervised on-grounds
19privileges, discharge or conditional or temporary release,
20except by a plan as provided in this Section. In no event shall
21a defendant's continued unauthorized absence be a basis for
22discharge. Not more than 30 days after admission and every 90
23days thereafter so long as the initial order remains in effect,
24the facility director shall file a treatment plan report in
25writing with the court and forward a copy of the treatment plan
26report to the clerk of the court, the State's Attorney, and the

 

 

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1defendant's attorney, if the defendant is represented by
2counsel, or to a person authorized by the defendant under the
3Mental Health and Developmental Disabilities Confidentiality
4Act to be sent a copy of the report. The report shall include
5an opinion as to whether the defendant is currently in need of
6mental health services on an inpatient basis or in need of
7mental health services on an outpatient basis. The report shall
8also summarize the basis for those findings and provide a
9current summary of the following items from the treatment plan:
10(1) an assessment of the defendant's treatment needs, (2) a
11description of the services recommended for treatment, (3) the
12goals of each type of element of service, (4) an anticipated
13timetable for the accomplishment of the goals, and (5) a
14designation of the qualified professional responsible for the
15implementation of the plan. The report may also include
16unsupervised on-grounds privileges, off-grounds privileges
17(with or without escort by personnel of the Department of Human
18Services), home visits and participation in work programs, but
19only where such privileges have been approved by specific court
20order, which order may include such conditions on the defendant
21as the Court may deem appropriate and necessary to reasonably
22assure the defendant's satisfactory progress in treatment and
23the safety of the defendant and others.
24    (c) Every defendant acquitted of a felony by reason of
25insanity and subsequently found to be in need of mental health
26services shall be represented by counsel in all proceedings

 

 

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1under this Section and under the Mental Health and
2Developmental Disabilities Code.
3        (1) The Court shall appoint as counsel the public
4    defender or an attorney licensed by this State.
5        (2) Upon filing with the Court of a verified statement
6    of legal services rendered by the private attorney
7    appointed pursuant to paragraph (1) of this subsection, the
8    Court shall determine a reasonable fee for such services.
9    If the defendant is unable to pay the fee, the Court shall
10    enter an order upon the State to pay the entire fee or such
11    amount as the defendant is unable to pay from funds
12    appropriated by the General Assembly for that purpose.
13    (d) When the facility director determines that:
14        (1) the defendant is no longer in need of mental health
15    services on an inpatient basis; and
16        (2) the defendant may be conditionally released
17    because he or she is still in need of mental health
18    services or that the defendant may be discharged as not in
19    need of any mental health services; or
20        (3) (blank);
21the facility director shall give written notice to the Court,
22State's Attorney and defense attorney. Such notice shall set
23forth in detail the basis for the recommendation of the
24facility director, and specify clearly the recommendations, if
25any, of the facility director, concerning conditional release.
26Any recommendation for conditional release shall include an

 

 

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1evaluation of the defendant's need for psychotropic
2medication, what provisions should be made, if any, to ensure
3that the defendant will continue to receive psychotropic
4medication following discharge, and what provisions should be
5made to assure the safety of the defendant and others in the
6event the defendant is no longer receiving psychotropic
7medication. Within 30 days of the notification by the facility
8director, the Court shall set a hearing and make a finding as
9to whether the defendant is:
10        (i) (blank); or
11        (ii) in need of mental health services in the form of
12    inpatient care; or
13        (iii) in need of mental health services but not subject
14    to inpatient care; or
15        (iv) no longer in need of mental health services; or
16        (v) (blank).
17    A crime victim shall be allowed to present an oral and
18written statement. The court shall allow a victim to make an
19oral statement if the victim is present in the courtroom and
20requests to make an oral statement. An oral statement includes
21the victim or a representative of the victim reading the
22written statement. A victim and any person making an oral
23statement shall not be put under oath or subject to
24cross-examination. All statements shall become part of the
25record of the court.
26    Upon finding by the Court, the Court shall enter its

 

 

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1findings and such appropriate order as provided in subsections
2(a) and (a-1) of this Section.
3    (e) A defendant admitted pursuant to this Section, or any
4person on his behalf, may file a petition for treatment plan
5review or discharge or conditional release under the standards
6of this Section in the Court which rendered the verdict. Upon
7receipt of a petition for treatment plan review or discharge or
8conditional release, the Court shall set a hearing to be held
9within 120 days. Thereafter, no new petition may be filed for
10180 days without leave of the Court.
11    (f) The Court shall direct that notice of the time and
12place of the hearing be served upon the defendant, the facility
13director, the State's Attorney, and the defendant's attorney.
14If requested by either the State or the defense or if the Court
15feels it is appropriate, an impartial examination of the
16defendant by a psychiatrist or clinical psychologist as defined
17in Section 1-103 of the Mental Health and Developmental
18Disabilities Code who is not in the employ of the Department of
19Human Services shall be ordered, and the report considered at
20the time of the hearing.
21    (g) The findings of the Court shall be established by clear
22and convincing evidence. The burden of proof and the burden of
23going forth with the evidence rest with the defendant or any
24person on the defendant's behalf when a hearing is held to
25review a petition filed by or on behalf of the defendant. The
26evidence shall be presented in open Court with the right of

 

 

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1confrontation and cross-examination. Such evidence may
2include, but is not limited to:
3        (1) whether the defendant appreciates the harm caused
4    by the defendant to others and the community by his or her
5    prior conduct that resulted in the finding of not guilty by
6    reason of insanity;
7        (2) Whether the person appreciates the criminality of
8    conduct similar to the conduct for which he or she was
9    originally charged in this matter;
10        (3) the current state of the defendant's illness;
11        (4) what, if any, medications the defendant is taking
12    to control his or her mental illness;
13        (5) what, if any, adverse physical side effects the
14    medication has on the defendant;
15        (6) the length of time it would take for the
16    defendant's mental health to deteriorate if the defendant
17    stopped taking prescribed medication;
18        (7) the defendant's history or potential for alcohol
19    and drug abuse;
20        (8) the defendant's past criminal history;
21        (9) any specialized physical or medical needs of the
22    defendant;
23        (10) any family participation or involvement expected
24    upon release and what is the willingness and ability of the
25    family to participate or be involved;
26        (11) the defendant's potential to be a danger to

 

 

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1    himself, herself, or others;
2        (11.5) a written or oral statement made by the victim;
3    and
4        (12) any other factor or factors the Court deems
5    appropriate.
6    (h) Before the court orders that the defendant be
7discharged or conditionally released, it shall order the
8facility director to establish a discharge plan that includes a
9plan for the defendant's shelter, support, and medication. If
10appropriate, the court shall order that the facility director
11establish a program to train the defendant in self-medication
12under standards established by the Department of Human
13Services. If the Court finds, consistent with the provisions of
14this Section, that the defendant is no longer in need of mental
15health services it shall order the facility director to
16discharge the defendant. If the Court finds, consistent with
17the provisions of this Section, that the defendant is in need
18of mental health services, and no longer in need of inpatient
19care, it shall order the facility director to release the
20defendant under such conditions as the Court deems appropriate
21and as provided by this Section. Such conditional release shall
22be imposed for a period of 5 years as provided in paragraph (D)
23of subsection (a-1) and shall be subject to later modification
24by the Court as provided by this Section. If the Court finds
25consistent with the provisions in this Section that the
26defendant is in need of mental health services on an inpatient

 

 

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1basis, it shall order the facility director not to discharge or
2release the defendant in accordance with paragraph (b) of this
3Section.
4    (i) If within the period of the defendant's conditional
5release the State's Attorney determines that the defendant has
6not fulfilled the conditions of his or her release, the State's
7Attorney may petition the Court to revoke or modify the
8conditional release of the defendant. Upon the filing of such
9petition the defendant may be remanded to the custody of the
10Department, or to any other mental health facility designated
11by the Department, pending the resolution of the petition.
12Nothing in this Section shall prevent the emergency admission
13of a defendant pursuant to Article VI of Chapter III of the
14Mental Health and Developmental Disabilities Code or the
15voluntary admission of the defendant pursuant to Article IV of
16Chapter III of the Mental Health and Developmental Disabilities
17Code. If the Court determines, after hearing evidence, that the
18defendant has not fulfilled the conditions of release, the
19Court shall order a hearing to be held consistent with the
20provisions of paragraph (f) and (g) of this Section. At such
21hearing, if the Court finds that the defendant is in need of
22mental health services on an inpatient basis, it shall enter an
23order remanding him or her to the Department of Human Services
24or other facility. If the defendant is remanded to the
25Department of Human Services, he or she shall be placed in a
26secure setting unless the Court determines that there are

 

 

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1compelling reasons that such placement is not necessary. If the
2Court finds that the defendant continues to be in need of
3mental health services but not on an inpatient basis, it may
4modify the conditions of the original release in order to
5reasonably assure the defendant's satisfactory progress in
6treatment and his or her safety and the safety of others in
7accordance with the standards established in paragraph (D) of
8subsection (a-1). Nothing in this Section shall limit a Court's
9contempt powers or any other powers of a Court.
10    (j) An order of admission under this Section does not
11affect the remedy of habeas corpus.
12    (k) In the event of a conflict between this Section and the
13Mental Health and Developmental Disabilities Code or the Mental
14Health and Developmental Disabilities Confidentiality Act, the
15provisions of this Section shall govern.
16    (l) Public Act 90-593 shall apply to all persons who have
17been found not guilty by reason of insanity and who are
18presently committed to the Department of Mental Health and
19Developmental Disabilities (now the Department of Human
20Services).
21    (m) The Clerk of the Court shall transmit a certified copy
22of the order of discharge or conditional release to the
23Department of Human Services, to the sheriff of the county from
24which the defendant was admitted, to the Illinois Department of
25State Police, to the proper law enforcement agency for the
26municipality where the offense took place, and to the sheriff

 

 

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1of the county into which the defendant is conditionally
2discharged. The Illinois Department of State Police shall
3maintain a centralized record of discharged or conditionally
4released defendants while they are under court supervision for
5access and use of appropriate law enforcement agencies.
6    (n) The provisions in this Section which allows a crime
7victim to make a written and oral statement do not apply if the
8defendant was under 18 years of age at the time the offense was
9committed.
10    (o) If any provision of this Section or its application to
11any person or circumstance is held invalid, the invalidity of
12that provision does not affect any other provision or
13application of this Section that can be given effect without
14the invalid provision or application.
15(Source: P.A. 100-27, eff. 1-1-18; 100-424, eff. 1-1-18;
16100-863, eff. 8-14-18; 100-961, eff. 1-1-19; revised 10-3-18.)