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Public Act 095-0296

 

Public Act 0296 95TH GENERAL ASSEMBLY 







 

 		


Public Act 095-0296
 		





SB0386 Enrolled
LRB095 04443 RLC 24488 b






    AN ACT concerning criminal law.

 
    Be it enacted by the People of the State of Illinois,
 
represented in the General Assembly:


 
    Section 5. The Code of Criminal Procedure of 1963 is 
amended  by changing Sections 104-17 and 104-31 as follows:
 



    (725 ILCS 5/104-17)  (from Ch. 38, par. 104-17)



    Sec. 104-17. Commitment for Treatment; Treatment Plan. 

    (a) If the defendant
is eligible to be or has been released 
on bail or on his own recognizance,
the court shall select the 
least physically restrictive form of treatment
therapeutically 
appropriate and consistent with the treatment plan.

    (b) If the defendant's disability is mental, the court may 
order him placed
for treatment in the custody of the Department 
of Human Services, or the court may order him placed in
the 
custody of any other
appropriate public or private mental 
health facility or treatment program
which has agreed to 
provide treatment to the defendant.  If the defendant
is placed 
in the custody of the Department of Human Services, the 
defendant shall be placed in a
secure setting unless the
court 
determines that
there are compelling reasons why such placement 
is not necessary.  During
the period of time required to 
determine the appropriate placement the
defendant shall remain 
in jail.  Upon completion of the placement process, the
sheriff 
shall be notified and shall transport the defendant to the 
designated
facility.  The placement may be ordered either on an 
inpatient or an outpatient
basis.

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

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


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


        (2) the county and municipality in which the offense 
    was committed;


        (3) the county and municipality in which the arrest 
    took place; and
        (4) a copy of the arrest report, criminal charges, 
    arrest record, jail record, and the report prepared under 
    Section 104-15; and



        (5)
(4) all 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 defendant'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 defendant and indicating his 
opinion
as to the probability of the defendant'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 defendant will attain fitness

within the time period, the treatment supervisor shall also 
file a treatment
plan which shall include:


        (1) A diagnosis of the defendant's disability;


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


        (3) An identification of the person in charge of 
    supervising the
defendant's
treatment.

(Source: P.A. 89-507, eff. 7-1-97.)

 



    (725 ILCS 5/104-31)  (from Ch. 38, par. 104-31)



    Sec. 104-31. No defendant placed in a secure setting of the 
Department of
Human Services pursuant to
the provisions of 
Sections 104-17, 104-25, or 104-26 shall be permitted outside

the facility's
housing unit unless escorted or accompanied by 
personnel of the Department of
Human Services.
Any defendant 
placed in a secure setting pursuant to this Section,

transported to court hearings or other necessary appointments

off facility grounds
by personnel of
the Department of Human 
Services, may be
placed in security devices
or otherwise 
secured during the period of transportation to assure
secure 
transport of the defendant and the safety of Department
of 
Human Services personnel and others.  These security measures

shall not constitute restraint as defined in the Mental Health 
and
Developmental Disabilities Code.
 Nor shall
such defendant

be permitted any off-grounds privileges, either with or without 
escort by
personnel of the Department of Human Services,
or any 
unsupervised on-ground privileges, unless such off-grounds or

unsupervised on-grounds privileges have been approved by 
specific court
order, which order may include such conditions 
on the defendant as the
court may deem appropriate and 
necessary to reasonably assure the
defendant's satisfactory 
progress in treatment and the safety of the defendant
or 
others. Whenever the court receives a report from the 
supervisor of the defendant's treatment recommending the 
defendant 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 demonstrated why the hearing cannot be held.


(Source: P.A. 89-507, eff. 7-1-97; 90-105, eff. 7-11-97.)

 
    Section 10. The Unified Code of Corrections is amended  by 
changing Section 5-2-4 as follows:
 



    (730 ILCS 5/5-2-4)  (from Ch. 38, par. 1005-2-4)



    Sec. 5-2-4. Proceedings after Acquittal by Reason of 
Insanity. 

    (a) After a finding or verdict of not guilty by reason of 
insanity
under Sections 104-25, 115-3 or 115-4 of The Code of 
Criminal Procedure
of 1963, the defendant shall be ordered to 
the Department of Human Services for
an evaluation as to

whether he is in need of mental health
services.  The order

shall specify whether the evaluation shall be conducted on an 
inpatient or
outpatient basis. If the evaluation is to be 
conducted on an inpatient
basis, the defendant shall be placed 
in a secure setting unless the Court
determines that there are 
compelling reasons why such placement is not
necessary. With 
the court order for evaluation shall be sent a copy of the 
arrest report, criminal charges, arrest record, jail record, 
and any report prepared under Section 115-6 of the Code of 
Criminal Procedure of 1963.
After the evaluation and during the 
period of time required to
determine the appropriate placement, 
the defendant shall
remain in jail.
Upon completion of the 
placement  process the sheriff shall be notified and
shall 
transport the defendant to the designated facility.

    The Department shall provide the Court with a report of its 
evaluation
within 30 days of the date of this order.  The Court 
shall hold a hearing
as provided under the Mental Health and 
Developmental Disabilities Code to
determine if the individual 
is:
(a)
in need of mental health services on an inpatient 
basis; (b) in
need of
mental health services on an outpatient 
basis; (c) a person not in
need of
mental health services.  The 
Court shall enter its findings.

    If the defendant is found to be in
need
of mental health 
services on an inpatient care basis, the Court shall order the

defendant to the Department of Human Services.
The defendant 
shall be placed in a secure setting unless the Court determines

that there are compelling reasons why such placement is not 
necessary. Such
defendants placed in a secure setting shall not 
be permitted outside the
facility's housing unit unless 
escorted or accompanied by personnel of the
Department of Human 
Services or with the prior approval of the Court for

unsupervised
on-grounds privileges as provided
herein.
Any 
defendant placed in a secure setting pursuant to this Section,

transported to court hearings or other necessary appointments

off facility grounds
by personnel of
the Department of Human 
Services, shall be
placed in security devices
or otherwise 
secured during the period of transportation to assure
secure 
transport of the defendant and the safety of Department
of 
Human Services personnel and others.  These security measures

shall not constitute restraint as defined in the Mental Health 
and
Developmental Disabilities Code.
If the defendant is found 
to be in need of mental health services,
but not on an 
inpatient care basis, the Court shall conditionally release
the 
defendant, under such conditions as set forth in this Section 
as will
reasonably assure the defendant's satisfactory 
progress and participation
in treatment or
rehabilitation and 
the safety of the defendant and others.  If the
Court
finds the 
person not in need of mental health services, then the Court

shall order the defendant discharged from custody.

    (a-1)
(1) Definitions. :  For the purposes of this Section:


        (A) (Blank).


        (B) "In need of mental health services on an inpatient 
    basis" means: a
defendant who has been found not guilty by 
    reason of insanity but who due to mental illness is

    reasonably expected to inflict
serious physical harm upon 
    himself or another and who would benefit from
inpatient 
    care or is in need of inpatient care.


        (C) "In need of mental health services on an outpatient 
    basis" means:
a defendant who has been found not guilty by 
    reason of insanity who is not in need of mental health 
    services on
an inpatient basis, but is in need of 
    outpatient care, drug and/or alcohol
rehabilitation 
    programs, community adjustment programs, individual, 
    group,
or family therapy, or chemotherapy.


        (D) "Conditional Release" means: the release from 
    either the custody
of the Department of Human Services
or 
    the custody of the Court of a person who has been found not 
    guilty by
reason of insanity under such conditions as the 
    Court may impose which
reasonably assure the defendant's 
    satisfactory progress in
treatment or habilitation and the 
    safety of the defendant and others.  The
Court shall 
    consider such terms and conditions which may include, but 
    need
not be limited to, outpatient care, alcoholic and drug 
    rehabilitation programs,
community adjustment programs, 
    individual, group, family, and chemotherapy,
random 
    testing to ensure the defendant's timely and continuous 
    taking of any
medicines prescribed
to control or manage his 
    or her conduct or mental state, and
periodic checks with 
    the legal authorities and/or the Department of Human

    Services.
 The Court may order as a condition of conditional 
    release that the
defendant not contact the victim of the 
    offense that
resulted in the finding or
verdict of not 
    guilty by reason of insanity or any other person.  The Court 
    may
order the
Department of
Human Services to provide care 
    to any
person conditionally released under this Section.  
    The Department may contract
with any public or private 
    agency in order to discharge any responsibilities
imposed 
    under this Section.  The Department shall monitor the 
    provision of
services to persons conditionally released 
    under this Section and provide
periodic reports to the 
    Court concerning the services and the condition of the

    defendant.
Whenever a person is conditionally released 
    pursuant to this Section, the
State's Attorney for the 
    county in which the hearing is held shall designate in

    writing the name, telephone number, and address of a person 
    employed by him or
her who
shall be notified in the event 
    that either the reporting agency or the
Department decides 
    that the conditional release of the defendant should be

    revoked or modified pursuant to subsection (i) of this 
    Section. Such
conditional release shall be for
a period of 
    five years. However, the defendant, the person or
facility

    rendering the treatment, therapy, program or outpatient 
    care, the
Department, or the
State's Attorney may petition 
    the Court for an extension of
the conditional
release 
    period for an additional 5 years. Upon receipt of such a

    petition, the Court shall hold a hearing consistent with 
    the provisions of
this paragraph (a), this paragraph (a-1),

    and paragraph (f) of this Section, shall determine
whether 
    the defendant should continue to be subject to the terms of

    conditional release, and shall enter an order either 
    extending the
defendant's period of conditional release 
    for an additional
5
year period or discharging the 
    defendant.
 Additional 5-year periods of conditional 
    release may be ordered following a
hearing as provided in 
    this Section.  However,
in no event shall the defendant's

    period of conditional release continue beyond the maximum 
    period of
commitment ordered by the Court pursuant to 
    paragraph (b) of this Section. These provisions for

    extension of conditional release shall only apply to 
    defendants
conditionally released on or after August 8, 
    2003
the effective date of
this amendatory Act
of the 93rd 
    General Assembly. However the extension
provisions of 
    Public Act 83-1449 apply only to defendants charged
with a 
    forcible felony.


        (E) "Facility director" means the chief officer of a 
    mental health or
developmental disabilities facility or 
    his or her designee or the supervisor of
a program of 
    treatment or habilitation or his or her designee.  
    "Designee" may
include a physician, clinical psychologist, 
    social worker, nurse, or clinical
professional counselor.

    (b) If the Court finds the defendant in need of mental 
health services on an
inpatient basis, the
admission, 
detention, care, treatment or habilitation, treatment plans,

review proceedings, including review of treatment and 
treatment plans, and
discharge of the defendant after such 
order shall be under the
Mental Health and Developmental 
Disabilities Code, except that the
initial order for admission 
of a defendant acquitted of a felony by
reason of insanity 
shall be for an indefinite period of time. Such period
of 
commitment shall not exceed the maximum
length of time that the 
defendant would have been required to serve,
less credit for 
good behavior as provided in Section 5-4-1 of the Unified
Code 
of Corrections, before becoming eligible for
release had
he 
been convicted of and received the maximum sentence for the 
most
serious crime for which he has been acquitted by reason of 
insanity. The
Court shall determine the maximum period of 
commitment by an appropriate
order. During  this period of time, 
the defendant shall not be permitted
to be in the community in 
any manner, including but not limited to off-grounds

privileges, with or without escort by personnel of the 
Department of Human
Services, unsupervised on-grounds 
privileges,
discharge or conditional or temporary release, 
except by a plan as provided in
this Section.  In no event shall 
a defendant's continued unauthorized
absence be a basis for 
discharge.  Not more than 30 days after admission
and every 60 
days thereafter so long as the initial order
remains in effect, 
the facility director shall file a treatment plan report
in 
writing with the court
and forward a copy of the treatment plan 
report to the clerk of the
court, the State's Attorney, and the 
defendant's attorney, if the defendant is
represented by 
counsel,
or to a person authorized by
the defendant under the

Mental Health and Developmental Disabilities Confidentiality 
Act to be sent a
copy of the report.  The report shall include 
an opinion
as to whether the
defendant is currently in need of 
mental
health services on an inpatient basis or in need of 
mental health services
on
an outpatient basis.  The report shall 
also summarize the basis for those
findings and provide a 
current summary of the following items from the
treatment plan: 
(1) an assessment of the defendant's treatment needs, (2) a

description of the services recommended for treatment, (3) the 
goals of each
type of element of service, (4) an anticipated 
timetable for the accomplishment
of the goals, and (5) a 
designation of the qualified professional responsible
for the 
implementation of the plan.
The report may also include 
unsupervised on-grounds
privileges, off-grounds privileges 
(with or without escort by personnel of the
Department of Human 
Services), home visits and
participation in work
programs, but 
only where such privileges have been approved by specific court

order, which order may include such conditions on the defendant 
as the
Court may deem appropriate and necessary to reasonably 
assure the defendant's
satisfactory progress in treatment and 
the safety of the defendant and others.

    (c) Every defendant acquitted of a felony by reason of 
insanity and
subsequently found to be in need of
mental health 
services shall be represented by counsel in all proceedings 
under
this Section and under the Mental Health and 
Developmental Disabilities Code.


        (1) The Court shall appoint as counsel the public 
    defender or an
attorney licensed by this State.


        (2) Upon filing with the Court of a verified statement 
    of legal
services rendered by the private attorney 
    appointed pursuant to
paragraph (1) of this subsection, the 
    Court shall determine a reasonable
fee for such services.  
    If the defendant is unable to pay the fee, the
Court shall 
    enter an order upon the State to pay the entire fee or such

    amount as the defendant is unable to pay from funds 
    appropriated by the
General Assembly for that purpose.

    (d) When the facility director determines that: 


        (1) the defendant is no longer
in need of mental health 
    services on an inpatient basis; and


        (2) the defendant may be conditionally released 
    because he
or she is still in need of mental health 
    services or that the defendant
may be discharged as not in 
    need of any mental health services; or


        (3) the defendant no longer requires placement in a 
    secure setting;

the facility director shall give written notice
to the Court, 
State's Attorney and defense attorney.
Such notice shall set 
forth in detail the basis for the recommendation of
the 
facility director, and specify clearly the recommendations, if 
any,
of the facility director, concerning conditional release.

Any recommendation for conditional release shall include an 
evaluation of
the defendant's need for psychotropic 
medication, what provisions should be
made, if any, to ensure 
that the defendant will continue to receive
psychotropic 
medication following discharge, and what provisions should be 
made
to assure the safety of the defendant and others in the 
event the defendant is
no longer receiving psychotropic 
medication.
Within 30 days of
the notification by the facility 
director, the Court shall set a hearing and
make a finding as 
to whether the defendant is:


        (i) (blank); or


        (ii) in need of mental health services in the form of 
    inpatient care; or


        (iii) in need of mental health services but not subject 
    to inpatient care;
or


        (iv) no longer in need of mental health services; or


        (v) no longer requires placement in a secure setting.

    Upon finding by the Court, the Court shall enter its 
findings and such
appropriate order as provided in subsections

subsection (a) and (a-1) of this Section.

    (e) A defendant admitted pursuant to this Section, or any 
person on
his behalf, may  file a petition for treatment plan 
review, transfer to a
non-secure setting within the Department 
of Human Services
or discharge or conditional release under the

standards of this Section in the Court which rendered the 
verdict.  Upon
receipt of a petition for treatment plan review, 
transfer to a non-secure
setting or discharge or conditional 
release, the Court shall set a hearing to
be held within 120 
days.  Thereafter, no new petition
may be filed for 180 days

without leave of the Court.

    (f) The Court shall direct that notice of the time and 
place of the
hearing be served upon the defendant, the facility 
director, the State's
Attorney, and the defendant's attorney. 
If requested by either the State or the
defense or if the Court 
feels it is appropriate, an impartial examination
of the 
defendant by a psychiatrist or clinical psychologist as defined 
in
Section 1-103 of the Mental Health and Developmental 
Disabilities Code who
is not in the employ of the Department of 
Human Services shall be ordered, and
the report considered at

the time of the hearing.

    (g) The findings of the Court shall be established by clear 
and
convincing evidence.  The burden of proof and the burden of 
going forth
with the evidence rest with the defendant or any 
person on the defendant's
behalf when a hearing is held to 
review
a petition filed by or on
behalf of the defendant.  The 
evidence shall be presented in open
Court
with the right of 
confrontation and cross-examination.
Such evidence may 
include, but is not limited to:


        (1) whether the defendant appreciates the harm caused 
    by the defendant to
others and the community by his or her 
    prior
conduct
that resulted in the finding of not guilty by 
    reason of insanity;


        (2) Whether the person appreciates the criminality of 
    conduct similar
similiar to
the conduct for which he or she 
    was originally charged in this matter;


        (3) the current state of
the defendant's illness;


        (4) what, if any, medications the defendant is taking 
    to
control his or her mental illness;


        (5) what, if any, adverse physical side effects
the 
    medication has on the defendant;


        (6) the length of time it would take for the 
    defendant's mental health to
deteriorate
if
the
defendant 
    stopped taking prescribed medication;


        (7) the defendant's history or potential for alcohol 
    and drug abuse;


        (8) the defendant's past criminal history;


        (9) any specialized physical or medical needs of the 
    defendant;


        (10) any family participation or involvement expected 
    upon release and
what is the willingness and ability of the 
    family to participate or be
involved;


        (11) the defendant's potential to be a danger to 
    himself, herself, or
others; and


        (12) any other factor or factors the Court deems 
    appropriate.

    (h) Before the court orders that the defendant be 
discharged or
conditionally released, it shall order the 
facility director to establish a
discharge plan that includes a 
plan for the defendant's shelter, support, and
medication.  If 
appropriate, the court shall order that the facility director

establish a program to train the defendant in self-medication 
under standards
established by the Department of Human 
Services.
If the Court finds, consistent with the provisions of 
this Section,
that the defendant is no longer in need of mental

health services it shall order the facility director to 
discharge the
defendant.  If the Court finds, consistent with 
the provisions of this
Section, that the defendant is in need 
of mental
health services, and no longer in need of inpatient 
care, it shall order
the facility director to release the 
defendant under such conditions as the
Court deems appropriate 
and as provided by this Section. Such conditional
release shall 
be imposed for a period of 5 years as provided in
paragraph (1)

(D) of subsection (a-1)
(a) and shall be
subject
to later 
modification by the Court as provided by this Section. If the

Court finds consistent with the provisions in this Section that 
the
defendant is in
need of mental health services on an 
inpatient basis, it shall order the
facility director not to 
discharge or release the defendant in accordance
with paragraph 
(b) of this Section.

    (i) If within the period of the defendant's conditional 
release
the State's Attorney determines that the defendant has 
not fulfilled the
conditions of his or her release, the State's 
Attorney may petition the
Court
to
revoke or modify the 
conditional release of the defendant.  Upon the filing of
such 
petition the defendant may be remanded to the custody of the 
Department,
or to any other mental health facility designated 
by the Department, pending
the resolution of the petition.  
Nothing in this Section shall prevent the
emergency admission 
of a defendant pursuant to Article VI of Chapter III of the

Mental Health
and Developmental Disabilities Code or the 
voluntary admission of the defendant
pursuant to Article IV of 
Chapter III of the Mental Health and Developmental
Disabilities

Code. If
the Court determines, after hearing evidence, that the 
defendant has
not fulfilled the conditions of release, the 
Court shall order a hearing
to be held consistent with the 
provisions of paragraph (f) and (g) of this
Section. At such 
hearing, if the Court finds that the defendant is in need of 
mental health services on an inpatient
basis, it shall enter an 
order remanding him or her to the Department of
Human Services 
or other
facility. If the defendant is remanded to the 
Department of Human Services, he
or she shall be placed in
a 
secure setting unless the Court
determines that there are 
compelling reasons that such placement is not
necessary. If the

Court finds that the defendant  continues to be in need of 
mental health
services but not on an inpatient basis, it may 
modify the conditions of
the original release in order to 
reasonably assure the defendant's satisfactory
progress in 
treatment and his or her safety and the safety of others in

accordance with the standards established in paragraph (1) (D) 
of subsection (a-1)
(a). Nothing in
this Section shall limit a 
Court's contempt powers or any other powers of a
Court.

    (j) An order of admission under this Section does not 
affect the
remedy of habeas corpus.

    (k) In the event of a conflict between this Section and the 
Mental Health
and Developmental Disabilities Code or the Mental 
Health and Developmental
Disabilities Confidentiality Act, the 
provisions of this Section shall govern.

    (l) This amendatory Act shall apply to all persons who have 
been found
not guilty by reason of insanity and who are 
presently committed to the
Department of Mental Health and 
Developmental Disabilities (now the
Department of Human 
Services).

    (m) The Clerk of the Court shall, after the entry of an 
order of transfer
to a non-secure setting of the Department of 
Human Services or discharge or
conditional release, transmit
a 
certified
copy of the order to the Department of Human 
Services, and the sheriff of the
county from which the

defendant was
admitted.
The Clerk of the Court shall also 
transmit a certified copy of the order of
discharge or 
conditional release to the Illinois Department of State Police, 
to
the proper law enforcement agency for the municipality
where 
the offense took
place, and to the sheriff of the county into 
which the defendant is
conditionally discharged.  The Illinois 
Department of State Police shall
maintain a
centralized record 
of discharged or conditionally released defendants while
they 
are under court supervision for access and use of appropriate 
law
enforcement agencies.

(Source: P.A. 93-78, eff. 1-1-04; 93-473, eff. 8-8-03; revised 
9-15-06.)

 

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






Effective Date:  8/20/2007











  

    

      

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