101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
SB0224

 

Introduced 1/31/2019, by Sen. Cristina Castro

 

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

    Amends the Unified Code of Corrections concerning persons found not guilty by reason of insanity. Provides that 90 days prior to the expiration of any conditional release, the Department of Corrections shall conduct an assessment of the defendant's continuing need for mental health services following the person's release from conditional release. Provides that the Department shall create a detailed plan for appropriate mental health services and provide or arrange funding to ensure that those mental health services enumerated in the plan are available to the defendant. Provides that an extension of the conditional release period may not be ordered unless there is clear and convincing evidence that the defendant will not participate in the mental health services set forth in the treatment plan created by the Department in the absence of a court order to do so, and that in the absence of those mental health services, the defendant is reasonably expected to inflict serious physical harm upon himself, herself, or others.


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FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

SB0224LRB101 05064 SLF 50074 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. In 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 5 five years. Ninety days prior to
14    the expiration of any conditional release, the Department
15    shall conduct an assessment of the defendant's continuing
16    need for mental health services following the person's
17    release from conditional release. The Department shall
18    create a detailed plan for appropriate mental health
19    services and provide or arrange funding to ensure that
20    those mental health services enumerated in the plan are
21    available to the defendant. However, the defendant, the
22    person or facility rendering the treatment, therapy,
23    program or outpatient care, the Department, or the State's
24    Attorney may petition the Court for an extension of the
25    conditional release period for an additional 5 years. Upon
26    receipt of such a petition, the Court shall hold a hearing

 

 

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1    consistent with the provisions of paragraph (a), this
2    paragraph (a-1), and paragraph (f) of this Section, shall
3    determine whether the defendant should continue to be
4    subject to the terms of conditional release, and shall
5    enter an order either extending the defendant's period of
6    conditional release for an additional 5-year period or
7    discharging the defendant. An extension of the conditional
8    release period may not be ordered unless there is clear and
9    convincing evidence that the defendant will not
10    participate in the mental health services set forth in the
11    treatment plan created by the Department in the absence of
12    a court order to do so, and that in the absence of those
13    mental health services, the defendant is reasonably
14    expected to inflict serious physical harm upon himself,
15    herself, or others. Additional 5-year periods of
16    conditional release may be ordered following a hearing as
17    provided in this Section. However, in no event shall the
18    defendant's period of conditional release continue beyond
19    the maximum period of commitment ordered by the Court
20    pursuant to paragraph (b) of this Section. These provisions
21    for extension of conditional release shall only apply to
22    defendants conditionally released on or after August 8,
23    2003. However, the extension provisions of Public Act
24    83-1449 apply only to defendants charged with a forcible
25    felony.
26        (E) "Facility director" means the chief officer of a

 

 

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1    mental health or developmental disabilities facility or
2    his or her designee or the supervisor of a program of
3    treatment or habilitation or his or her designee.
4    "Designee" may include a physician, clinical psychologist,
5    social worker, nurse, or clinical professional counselor.
6    (b) If the Court finds the defendant in need of mental
7health services on an inpatient basis, the admission,
8detention, care, treatment or habilitation, treatment plans,
9review proceedings, including review of treatment and
10treatment plans, and discharge of the defendant after such
11order shall be under the Mental Health and Developmental
12Disabilities Code, except that the initial order for admission
13of a defendant acquitted of a felony by reason of insanity
14shall be for an indefinite period of time. Such period of
15commitment shall not exceed the maximum length of time that the
16defendant would have been required to serve, less credit for
17good behavior as provided in Section 5-4-1 of the Unified Code
18of Corrections, before becoming eligible for release had he
19been convicted of and received the maximum sentence for the
20most serious crime for which he has been acquitted by reason of
21insanity. The Court shall determine the maximum period of
22commitment by an appropriate order. During this period of time,
23the defendant shall not be permitted to be in the community in
24any manner, including, but not limited to, off-grounds
25privileges, with or without escort by personnel of the
26Department of Human Services, unsupervised on-grounds

 

 

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1privileges, discharge or conditional or temporary release,
2except by a plan as provided in this Section. In no event shall
3a defendant's continued unauthorized absence be a basis for
4discharge. Not more than 30 days after admission and every 90
5days thereafter so long as the initial order remains in effect,
6the facility director shall file a treatment plan report in
7writing with the court and forward a copy of the treatment plan
8report to the clerk of the court, the State's Attorney, and the
9defendant's attorney, if the defendant is represented by
10counsel, or to a person authorized by the defendant under the
11Mental Health and Developmental Disabilities Confidentiality
12Act to be sent a copy of the report. The report shall include
13an opinion as to whether the defendant is currently in need of
14mental health services on an inpatient basis or in need of
15mental health services on an outpatient basis. The report shall
16also summarize the basis for those findings and provide a
17current summary of the following items from the treatment plan:
18(1) an assessment of the defendant's treatment needs, (2) a
19description of the services recommended for treatment, (3) the
20goals of each type of element of service, (4) an anticipated
21timetable for the accomplishment of the goals, and (5) a
22designation of the qualified professional responsible for the
23implementation of the plan. The report may also include
24unsupervised on-grounds privileges, off-grounds privileges
25(with or without escort by personnel of the Department of Human
26Services), home visits and participation in work programs, but

 

 

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1only where such privileges have been approved by specific court
2order, which order may include such conditions on the defendant
3as the Court may deem appropriate and necessary to reasonably
4assure the defendant's satisfactory progress in treatment and
5the safety of the defendant and others.
6    (c) Every defendant acquitted of a felony by reason of
7insanity and subsequently found to be in need of mental health
8services shall be represented by counsel in all proceedings
9under this Section and under the Mental Health and
10Developmental Disabilities Code.
11        (1) The Court shall appoint as counsel the public
12    defender or an attorney licensed by this State.
13        (2) Upon filing with the Court of a verified statement
14    of legal services rendered by the private attorney
15    appointed pursuant to paragraph (1) of this subsection, the
16    Court shall determine a reasonable fee for such services.
17    If the defendant is unable to pay the fee, the Court shall
18    enter an order upon the State to pay the entire fee or such
19    amount as the defendant is unable to pay from funds
20    appropriated by the General Assembly for that purpose.
21    (d) When the facility director determines that:
22        (1) the defendant is no longer in need of mental health
23    services on an inpatient basis; and
24        (2) the defendant may be conditionally released
25    because he or she is still in need of mental health
26    services or that the defendant may be discharged as not in

 

 

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1    need of any mental health services; or
2        (3) (blank);
3the facility director shall give written notice to the Court,
4State's Attorney and defense attorney. Such notice shall set
5forth in detail the basis for the recommendation of the
6facility director, and specify clearly the recommendations, if
7any, of the facility director, concerning conditional release.
8Any recommendation for conditional release shall include an
9evaluation of the defendant's need for psychotropic
10medication, what provisions should be made, if any, to ensure
11that the defendant will continue to receive psychotropic
12medication following discharge, and what provisions should be
13made to assure the safety of the defendant and others in the
14event the defendant is no longer receiving psychotropic
15medication. Within 30 days of the notification by the facility
16director, the Court shall set a hearing and make a finding as
17to whether the defendant is:
18        (i) (blank); or
19        (ii) in need of mental health services in the form of
20    inpatient care; or
21        (iii) in need of mental health services but not subject
22    to inpatient care; or
23        (iv) no longer in need of mental health services; or
24        (v) (blank).
25    A crime victim shall be allowed to present an oral and
26written statement. The court shall allow a victim to make an

 

 

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1oral statement if the victim is present in the courtroom and
2requests to make an oral statement. An oral statement includes
3the victim or a representative of the victim reading the
4written statement. A victim and any person making an oral
5statement shall not be put under oath or subject to
6cross-examination. All statements shall become part of the
7record of the court.
8    Upon finding by the Court, the Court shall enter its
9findings and such appropriate order as provided in subsections
10(a) and (a-1) of this Section.
11    (e) A defendant admitted pursuant to this Section, or any
12person on his behalf, may file a petition for treatment plan
13review or discharge or conditional release under the standards
14of this Section in the Court which rendered the verdict. Upon
15receipt of a petition for treatment plan review or discharge or
16conditional release, the Court shall set a hearing to be held
17within 120 days. Thereafter, no new petition may be filed for
18180 days without leave of the Court.
19    (f) The Court shall direct that notice of the time and
20place of the hearing be served upon the defendant, the facility
21director, the State's Attorney, and the defendant's attorney.
22If requested by either the State or the defense or if the Court
23feels it is appropriate, an impartial examination of the
24defendant by a psychiatrist or clinical psychologist as defined
25in Section 1-103 of the Mental Health and Developmental
26Disabilities Code who is not in the employ of the Department of

 

 

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1Human Services shall be ordered, and the report considered at
2the time of the hearing.
3    (g) The findings of the Court shall be established by clear
4and convincing evidence. The burden of proof and the burden of
5going forth with the evidence rest with the defendant or any
6person on the defendant's behalf when a hearing is held to
7review a petition filed by or on behalf of the defendant. The
8evidence shall be presented in open Court with the right of
9confrontation and cross-examination. Such evidence may
10include, but is not limited to:
11        (1) whether the defendant appreciates the harm caused
12    by the defendant to others and the community by his or her
13    prior conduct that resulted in the finding of not guilty by
14    reason of insanity;
15        (2) Whether the person appreciates the criminality of
16    conduct similar to the conduct for which he or she was
17    originally charged in this matter;
18        (3) the current state of the defendant's illness;
19        (4) what, if any, medications the defendant is taking
20    to control his or her mental illness;
21        (5) what, if any, adverse physical side effects the
22    medication has on the defendant;
23        (6) the length of time it would take for the
24    defendant's mental health to deteriorate if the defendant
25    stopped taking prescribed medication;
26        (7) the defendant's history or potential for alcohol

 

 

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1    and drug abuse;
2        (8) the defendant's past criminal history;
3        (9) any specialized physical or medical needs of the
4    defendant;
5        (10) any family participation or involvement expected
6    upon release and what is the willingness and ability of the
7    family to participate or be involved;
8        (11) the defendant's potential to be a danger to
9    himself, herself, or others;
10        (11.5) a written or oral statement made by the victim;
11    and
12        (12) any other factor or factors the Court deems
13    appropriate.
14    (h) Before the court orders that the defendant be
15discharged or conditionally released, it shall order the
16facility director to establish a discharge plan that includes a
17plan for the defendant's shelter, support, and medication. If
18appropriate, the court shall order that the facility director
19establish a program to train the defendant in self-medication
20under standards established by the Department of Human
21Services. If the Court finds, consistent with the provisions of
22this Section, that the defendant is no longer in need of mental
23health services it shall order the facility director to
24discharge the defendant. If the Court finds, consistent with
25the provisions of this Section, that the defendant is in need
26of mental health services, and no longer in need of inpatient

 

 

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1care, it shall order the facility director to release the
2defendant under such conditions as the Court deems appropriate
3and as provided by this Section. Such conditional release shall
4be imposed for a period of 5 years as provided in paragraph (D)
5of subsection (a-1) and shall be subject to later modification
6by the Court as provided by this Section. If the Court finds
7consistent with the provisions in this Section that the
8defendant is in need of mental health services on an inpatient
9basis, it shall order the facility director not to discharge or
10release the defendant in accordance with paragraph (b) of this
11Section.
12    (i) If within the period of the defendant's conditional
13release the State's Attorney determines that the defendant has
14not fulfilled the conditions of his or her release, the State's
15Attorney may petition the Court to revoke or modify the
16conditional release of the defendant. Upon the filing of such
17petition the defendant may be remanded to the custody of the
18Department, or to any other mental health facility designated
19by the Department, pending the resolution of the petition.
20Nothing in this Section shall prevent the emergency admission
21of a defendant pursuant to Article VI of Chapter III of the
22Mental Health and Developmental Disabilities Code or the
23voluntary admission of the defendant pursuant to Article IV of
24Chapter III of the Mental Health and Developmental Disabilities
25Code. If the Court determines, after hearing evidence, that the
26defendant has not fulfilled the conditions of release, the

 

 

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1Court shall order a hearing to be held consistent with the
2provisions of paragraph (f) and (g) of this Section. At such
3hearing, if the Court finds that the defendant is in need of
4mental health services on an inpatient basis, it shall enter an
5order remanding him or her to the Department of Human Services
6or other facility. If the defendant is remanded to the
7Department of Human Services, he or she shall be placed in a
8secure setting unless the Court determines that there are
9compelling reasons that such placement is not necessary. If the
10Court finds that the defendant continues to be in need of
11mental health services but not on an inpatient basis, it may
12modify the conditions of the original release in order to
13reasonably assure the defendant's satisfactory progress in
14treatment and his or her safety and the safety of others in
15accordance with the standards established in paragraph (D) of
16subsection (a-1). Nothing in this Section shall limit a Court's
17contempt powers or any other powers of a Court.
18    (j) An order of admission under this Section does not
19affect the remedy of habeas corpus.
20    (k) In the event of a conflict between this Section and the
21Mental Health and Developmental Disabilities Code or the Mental
22Health and Developmental Disabilities Confidentiality Act, the
23provisions of this Section shall govern.
24    (l) Public Act 90-593 shall apply to all persons who have
25been found not guilty by reason of insanity and who are
26presently committed to the Department of Mental Health and

 

 

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1Developmental Disabilities (now the Department of Human
2Services).
3    (m) The Clerk of the Court shall transmit a certified copy
4of the order of discharge or conditional release to the
5Department of Human Services, to the sheriff of the county from
6which the defendant was admitted, to the Illinois Department of
7State Police, to the proper law enforcement agency for the
8municipality where the offense took place, and to the sheriff
9of the county into which the defendant is conditionally
10discharged. The Illinois Department of State Police shall
11maintain a centralized record of discharged or conditionally
12released defendants while they are under court supervision for
13access and use of appropriate law enforcement agencies.
14    (n) The provisions in this Section which allows a crime
15victim to make a written and oral statement do not apply if the
16defendant was under 18 years of age at the time the offense was
17committed.
18    (o) If any provision of this Section or its application to
19any person or circumstance is held invalid, the invalidity of
20that provision does not affect any other provision or
21application of this Section that can be given effect without
22the invalid provision or application.
23(Source: P.A. 100-27, eff. 1-1-18; 100-424, eff. 1-1-18;
24100-863, eff. 8-14-18; 100-961, eff. 1-1-19; revised 10-3-18.)