Public Act 093-0473
Public Act 93-0473 of the 93rd General Assembly
Public Act 93-0473
SB1342 Enrolled LRB093 04985 RLC 09927 b
AN ACT in relation to criminal law.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Unified Code of Corrections is amended by
changing Section 5-2-4 as follows:
(730 ILCS 5/5-2-4) (from Ch. 38, par. 1005-2-4)
Sec. 5-2-4. Proceedings after Acquittal by Reason of
Insanity.
(a) After a finding or verdict of not guilty by reason
of insanity under Sections 104-25, 115-3 or 115-4 of The Code
of Criminal Procedure of 1963, the defendant shall be ordered
to the Department of Human Services for an evaluation as to
whether he is subject to involuntary admission or in need of
mental health services. The order shall specify whether the
evaluation shall be conducted on an inpatient or outpatient
basis. If the evaluation is to be conducted on an inpatient
basis, the defendant shall be placed in a secure setting
unless the Court determines that there are compelling reasons
why such placement is not necessary. After the evaluation and
during the period of time required to determine the
appropriate placement, the defendant shall remain in jail.
Upon completion of the placement process the sheriff shall
be notified and shall transport the defendant to the
designated facility.
The Department shall provide the Court with a report of
its evaluation within 30 days of the date of this order. The
Court shall hold a hearing as provided under the Mental
Health and Developmental Disabilities Code to determine if
the individual is: (a) subject to involuntary admission; (a)
(b) in need of mental health services on an inpatient basis;
(b) (c) in need of mental health services on an outpatient
basis; (c) (d) a person not in need of mental health
services. The Court shall enter its findings.
If the defendant is found to be subject to involuntary
admission or in need of mental health services on an
inpatient care basis, the Court shall order the defendant to
the Department of Human Services. The defendant shall be
placed in a secure setting unless the Court determines that
there are compelling reasons why such placement is not
necessary. Such defendants placed in a secure setting shall
not be permitted outside the facility's housing unit unless
escorted or accompanied by personnel of the Department of
Human Services or with the prior approval of the Court for
unsupervised on-grounds privileges as provided herein. Any
defendant placed in a secure setting pursuant to this
Section, transported to court hearings or other necessary
appointments off facility grounds by personnel of the
Department of Human Services, shall may be placed in security
devices or otherwise secured during the period of
transportation to assure secure transport of the defendant
and the safety of Department of Human Services personnel and
others. These security measures shall not constitute
restraint as defined in the Mental Health and Developmental
Disabilities Code. If the defendant is found to be in need of
mental health services, but not on an inpatient care basis,
the Court shall conditionally release the defendant, under
such conditions as set forth in this Section as will
reasonably assure the defendant's satisfactory progress and
participation in treatment or rehabilitation and the safety
of the defendant and or others. If the Court finds the
person not in need of mental health services, then the Court
shall order the defendant discharged from custody.
(1) Definitions: For the purposes of this Section:
(A) (Blank). "Subject to involuntary admission"
means: a defendant has been found not guilty by reason
of insanity; and
(i) who is mentally ill and who because of his
mental illness is reasonably expected to inflict
serious physical harm upon himself or another in the
near future; or
(ii) who is mentally ill and who because of
his illness is unable to provide for his basic
physical needs so as to guard himself from serious
harm.
(B) "In need of mental health services on an
inpatient basis" means: a defendant who has been found
not guilty by reason of insanity who is not subject to
involuntary admission but who due to mental illness is
reasonably expected to inflict serious physical harm upon
himself or another and who would benefit from inpatient
care or is in need of inpatient care.
(C) "In need of mental health services on an
outpatient basis" means: a defendant who has been found
not guilty by reason of insanity who is not subject to
involuntary admission or in need of mental health
services on an inpatient basis, but is in need of
outpatient care, drug and/or alcohol rehabilitation
programs, community adjustment programs, individual,
group, or family therapy, or chemotherapy.
(D) "Conditional Release" means: the release from
either the custody of the Department of Human Services or
the custody of the Court of a person who has been found
not guilty by reason of insanity under such conditions as
the Court may impose which reasonably assure the
defendant's satisfactory progress in treatment or
habilitation and the safety of the defendant and others.
The Court shall consider such terms and conditions which
may include, but need not be limited to, outpatient care,
alcoholic and drug rehabilitation programs, community
adjustment programs, individual, group, family, and
chemotherapy, random testing to ensure the defendant's
timely and continuous taking of any medicines prescribed
to control or manage his or her conduct or mental state,
and periodic checks with the legal authorities and/or the
Department of Human Services. The Court may order as a
condition of conditional release that the defendant not
contact the victim of the offense that resulted in the
finding or verdict of not guilty by reason of insanity or
any other person. The Court may order the Department of
Human Services to provide care to any person
conditionally released under this Section. The
Department may contract with any public or private agency
in order to discharge any responsibilities imposed under
this Section. The Department shall monitor the provision
of services to persons conditionally released under this
Section and provide periodic reports to the Court
concerning the services and the condition of the
defendant. Whenever a person is conditionally released
pursuant to this Section, the State's Attorney for the
county in which the hearing is held shall designate in
writing the name, telephone number, and address of a
person employed by him or her who shall be notified in
the event that either the reporting agency or the
Department decides that the conditional release of the
defendant should be revoked or modified pursuant to
subsection (i) of this Section The person or facility
rendering the outpatient care shall be required to
periodically report to the Court on the progress of the
defendant. Such conditional release shall be for a period
of five years. However, unless the defendant, the person
or facility rendering the treatment, therapy, program or
outpatient care, the Department, or the State's Attorney
may petition petitions the Court for an extension of the
conditional release period for an additional 5 three
years. Upon receipt of such a petition, the Court shall
hold a hearing consistent with the provisions of this
paragraph (a) and paragraph (f) of this Section, shall
determine whether the defendant should continue to be
subject to the terms of conditional release, and shall
enter an order either extending the defendant's period of
conditional release for an a single additional 5 three
year period or discharging the defendant. Additional
5-year periods of conditional release may be ordered
following a hearing as provided in this Section.
However, in no event shall the defendant's period of
conditional release continue beyond the maximum period of
commitment ordered by the Court pursuant to paragraph (b)
of this Section exceed eight years. These provisions for
extension of conditional release shall only apply to
defendants conditionally released on or after the
effective date of this amendatory Act of the 93rd General
Assembly July 1, 1979. However the extension provisions
of Public Act 83-1449 apply only to defendants charged
with a forcible felony.
(E) "Facility director" means the chief officer of
a mental health or developmental disabilities facility or
his or her designee or the supervisor of a program of
treatment or habilitation or his or her designee.
"Designee" may include a physician, clinical
psychologist, social worker, or nurse.
(b) If the Court finds the defendant subject to
involuntary admission or in need of mental health services on
an inpatient basis, the admission, detention, care, treatment
or habilitation, treatment plans, review proceedings,
including review of treatment and treatment plans, and
discharge of the defendant after such order shall be under
the Mental Health and Developmental Disabilities Code, except
that the initial order for admission of a defendant acquitted
of a felony by reason of insanity shall be for an indefinite
period of time. Such period of commitment shall not exceed
the maximum length of time that the defendant would have been
required to serve, less credit for good behavior as provided
in Section 5-4-1 of the Unified Code of Corrections, before
becoming eligible for release had he been convicted of and
received the maximum sentence for the most serious crime for
which he has been acquitted by reason of insanity. The Court
shall determine the maximum period of commitment by an
appropriate order. During this period of time, the defendant
shall not be permitted to be in the community in any manner,
including but not limited to off-grounds privileges, with or
without escort by personnel of the Department of Human
Services, unsupervised on-grounds privileges, discharge or
conditional or temporary release, except by a plan as
provided in this Section. In no event shall a defendant's
continued unauthorized absence be a basis for discharge. Not
more than 30 days after admission and every 60 days
thereafter so long as the initial order remains in effect,
the facility director shall file a treatment plan report in
writing with the court and forward a copy of the treatment
plan report to the clerk of the court, the State's Attorney,
and the defendant's attorney, if the defendant is represented
by counsel, or to a person authorized by the defendant under
the Mental Health and Developmental Disabilities
Confidentiality Act to be sent a copy of the report. The
report shall include an opinion as to whether the defendant
is currently subject to involuntary admission, in need of
mental health services on an inpatient basis, or in need of
mental health services on an outpatient basis. The report
shall also summarize the basis for those findings and provide
a current summary of the following items from the treatment
plan: (1) an assessment of the defendant's treatment needs,
(2) a description of the services recommended for treatment,
(3) the goals of each type of element of service, (4) an
anticipated timetable for the accomplishment of the goals,
and (5) a designation of the qualified professional
responsible for the implementation of the plan. The report
may also include unsupervised on-grounds privileges,
off-grounds privileges (with or without escort by personnel
of the Department of Human Services), home visits and
participation in work programs, but only where such
privileges have been approved by specific court order, which
order may include such conditions on the defendant as the
Court may deem appropriate and necessary to reasonably assure
the defendant's satisfactory progress in treatment and the
safety of the defendant and others.
(c) Every defendant acquitted of a felony by reason of
insanity and subsequently found to be subject to involuntary
admission or in need of mental health services shall be
represented by counsel in all proceedings under this Section
and under the Mental Health and Developmental Disabilities
Code.
(1) The Court shall appoint as counsel the public
defender or an attorney licensed by this State.
(2) Upon filing with the Court of a verified
statement of legal services rendered by the private
attorney appointed pursuant to paragraph (1) of this
subsection, the Court shall determine a reasonable fee
for such services. If the defendant is unable to pay the
fee, the Court shall enter an order upon the State to pay
the entire fee or such amount as the defendant is unable
to pay from funds appropriated by the General Assembly
for that purpose.
(d) When the facility director determines that:
(1) the defendant is no longer subject to
involuntary admission or in need of mental health
services on an inpatient basis; and
(2) the defendant may be conditionally released
because he or she is still in need of mental health
services or that the defendant may be discharged as not
in need of any mental health services; or
(3) the defendant no longer requires placement in a
secure setting;
the facility director shall give written notice to the Court,
State's Attorney and defense attorney. Such notice shall set
forth in detail the basis for the recommendation of the
facility director, and specify clearly the recommendations,
if any, of the facility director, concerning conditional
release. Within 30 days of the notification by the facility
director, the Court shall set a hearing and make a finding as
to whether the defendant is:
(i) (blank) subject to involuntary admission; or
(ii) in need of mental health services in the form
of inpatient care; or
(iii) in need of mental health services but not
subject to involuntary admission or inpatient care; or
(iv) no longer in need of mental health services;
or
(v) no longer requires placement in a secure
setting.
Upon finding by the Court, the Court shall enter its
findings and such appropriate order as provided in subsection
(a) of this Section.
(e) A defendant admitted pursuant to this Section, or
any person on his behalf, may file a petition for treatment
plan review, transfer to a non-secure setting within the
Department of Human Services or discharge or conditional
release under the standards of this Section in the Court
which rendered the verdict. Upon receipt of a petition for
treatment plan review, transfer to a non-secure setting or
discharge or conditional release, the Court shall set a
hearing to be held within 120 days. Thereafter, no new
petition may be filed for 180 120 days without leave of the
Court.
(f) The Court shall direct that notice of the time and
place of the hearing be served upon the defendant, the
facility director, the State's Attorney, and the defendant's
attorney. If requested by either the State or the defense or
if the Court feels it is appropriate, an impartial
examination of the defendant by a psychiatrist or clinical
psychologist as defined in Section 1-103 of the Mental Health
and Developmental Disabilities Code who is not in the employ
of the Department of Human Services shall be ordered, and the
report considered at the time of the hearing.
(g) The findings of the Court shall be established by
clear and convincing evidence. The burden of proof and the
burden of going forth with the evidence rest with the
defendant or any person on the defendant's behalf when a
hearing is held to review a petition filed by or on behalf of
the defendant. The evidence shall be presented in open Court
with the right of confrontation and cross-examination. Such
evidence may include, but is not limited to:
(1) whether the defendant appreciates the harm
caused by the defendant to others and the community by
his or her prior conduct that resulted in the finding of
not guilty by reason of insanity;
(2) Whether the person appreciates the criminality
of conduct similiar to the conduct for which he or she
was originally charged in this matter;
(3) the current state of the defendant's illness;
(4) what, if any, medications the defendant is
taking to control his or her mental illness;
(5) what, if any, adverse physical side effects the
medication has on the defendant;
(6) the length of time it would take for the
defendant's mental health to deteriorate if the defendant
stopped taking prescribed medication;
(7) the defendant's history or potential for
alcohol and drug abuse;
(8) the defendant's past criminal history;
(9) any specialized physical or medical needs of
the defendant;
(10) any family participation or involvement
expected upon release and what is the willingness and
ability of the family to participate or be involved;
(11) the defendant's potential to be a danger to
himself, herself, or others; and
(12) any other factor or factors the Court deems
appropriate.
(h) If the Court finds, consistent with the provisions
of this Section, that the defendant is no longer in need of
mental health services it shall order the facility director
to discharge the defendant. If the Court finds, consistent
with the provisions of this Section, that the defendant is in
need of mental health services, and no longer in need of
inpatient care, it shall order the facility director to
release the defendant under such conditions as the Court
deems appropriate and as provided by this Section. Such
conditional release shall be imposed for a period of 5 five
years as provided in paragraph (1) (D) of subsection (a) and
shall be subject to later modification by the Court as
provided by this Section. If the Court finds consistent with
the provisions in this Section that the defendant is subject
to involuntary admission or in need of mental health services
on an inpatient basis, it shall order the facility director
not to discharge or release the defendant in accordance with
paragraph (b) of this Section.
(i) If within the period of the defendant's conditional
release the State's Attorney determines that the defendant
has not fulfilled the conditions of his or her release, the
State's Attorney may petition the Court to revoke or modify
the conditional release of the defendant. Upon the filing of
such petition the defendant may be remanded to the custody of
the Department, or to any other mental health facility
designated by the Department, pending the resolution of the
petition. Nothing in this Section shall prevent the
emergency admission of a defendant pursuant to Article VI of
Chapter III of the Mental Health and Developmental
Disabilities Code or the voluntary admission of the defendant
pursuant to Article IV of Chapter III of the Mental Health
and Developmental Disabilities Code. If the Court determines,
after hearing evidence, that the defendant has not fulfilled
the conditions of release, the Court shall order a hearing to
be held consistent with the provisions of paragraph (f) and
(g) of this Section. At such hearing, if the Court finds that
the defendant is subject to involuntary admission or in need
of mental health services on an inpatient basis, it shall
enter an order remanding him or her to the Department of
Human Services or other facility. If the defendant is
remanded to the Department of Human Services, he or she shall
be placed in a secure setting unless the Court determines
that there are compelling reasons that such placement is not
necessary. If the Court finds that the defendant continues
to be in need of mental health services but not on an
inpatient basis, it may modify the conditions of the original
release in order to reasonably assure the defendant's
satisfactory progress in treatment and his or her safety and
the safety of others in accordance with the standards
established in paragraph (1) (D) of subsection (a). In no
event shall such conditional release be longer than eight
years. Nothing in this Section shall limit a Court's contempt
powers or any other powers of a Court.
(j) An order of admission under this Section does not
affect the remedy of habeas corpus.
(k) In the event of a conflict between this Section and
the Mental Health and Developmental Disabilities Code or the
Mental Health and Developmental Disabilities Confidentiality
Act, the provisions of this Section shall govern.
(l) This amendatory Act shall apply to all persons who
have been found not guilty by reason of insanity and who are
presently committed to the Department of Mental Health and
Developmental Disabilities (now the Department of Human
Services).
(m) The Clerk of the Court shall, after the entry of an
order of transfer to a non-secure setting of the Department
of Human Services or discharge or conditional release,
transmit a certified copy of the order to the Department of
Human Services, and the sheriff of the county from which the
defendant was admitted. In cases where the arrest of the
defendant or the commission of the offense took place in any
municipality with a population of more than 25,000 persons,
the Clerk of the Court shall also transmit a certified copy
of the order of discharge or conditional release to the
proper law enforcement agency for said municipality provided
the municipality has requested such notice in writing.
(Source: P.A. 90-105, eff. 7-11-97; 90-593, eff. 6-19-98;
91-536, eff. 1-1-00; 91-770, eff. 1-1-01.)
Section 99. Effective date. This Act takes effect upon
becoming law.
Effective Date: 8/8/2003
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