102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
SB4243

 

Introduced 11/14/2022, by Sen. Cristina H. Pacione-Zayas

 

SYNOPSIS AS INTRODUCED:
 
See Index

    Amends the Delinquent Minors Article of the Juvenile Court Act of 1987. Adds a Part concerning Fitness to Stand Trial. Specifies the unfitness standard for a child. Sets forth procedures to raise the issue of the unfitness of a child. Specifies the burden of proof and a presumption. Provides requirements for a fitness evaluation and hearing to determine the fitness of a child. Provides the requirements for the services to attain fitness, the period to obtain fitness, initial and subsequent progress reports, periodic hearings, and in-court assistance to render a child fit. Specifies time credit and sentencing guidelines for a child who attains fitness. Provides for the legal disposition of a child if fitness cannot be attained. Contains other provisions. Effective July 1, 2023.


LRB102 29019 NLB 40921 b

 

 

A BILL FOR

 

SB4243LRB102 29019 NLB 40921 b

1    AN ACT concerning courts.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Juvenile Court Act of 1987 is amended by
5adding Part 5A to Article V as follows:
 
6    (705 ILCS 405/Art. V Pt. 5A heading new)
7
PART 5A. FITNESS TO STAND TRIAL

 
8    (705 ILCS 405/5-5A-101 new)
9    Sec. 5-5A-101. Purpose. This Part recognizes that children
10are substantially different from adults and therefore creates
11procedures to establish fitness to stand trial that
12accommodate these differences. This Part is intended to
13support children through practices that are trauma-informed
14and that protect children's rights and dignity; questions of
15interpretation shall be resolved in line with these practices.
16This Part recognizes that the ability to understand charges
17and to participate meaningfully in one's own defense evolve
18gradually throughout childhood and early adulthood and that
19each child deserves developmentally appropriate responses that
20reflect the best understanding of the child's current
21abilities.
 

 

 

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1    (705 ILCS 405/5-5A-105 new)
2    Sec. 5-5A-105. Definitions. As used in this Part:
3    (a) "Child" means a person under the age of 21, regardless
4of whether the person is subject to this Act or prosecuted
5under the criminal laws of this State.
6    (b) "Child traumatic stress" means exposure to one or more
7traumatic events over the course of a child's life that result
8in that child developing reactions that persist and that
9interfere with the child's functional, social, adaptive, or
10intellectual ability.
11    (c) "Chronological immaturity" means a lack of functional,
12social, adaptive, or intellectual ability due to chronological
13age.
14    (d) "Developmental disability" means a disability that is
15attributable to an intellectual disability, cerebral palsy,
16epilepsy, autism, a learning disability, or any other
17condition that results in impaired functional, social,
18adaptive, or intellectual ability.
19    (e) "Mental illness" means a mental or emotional disorder
20that substantially impairs a person's thought, perception of
21reality, emotional process, judgment, behavior, or ability to
22cope with the ordinary demands of life.
23    (f) "Relative immaturity" means a lack of functional,
24social, adaptive, or intellectual ability when a child is
25compared to other children of the same chronological age.
26    (g) "Substance use disorder" has the same meaning as

 

 

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1provided in Section 1-10 of the Substance Use Disorder Act.
 
2    (705 ILCS 405/5-5A-110 new)
3    Sec. 5-5A-110. Unfitness standard. Unfitness may result
4from the presence of any condition or conditions, including,
5but not limited to, mental illness, substance use disorder,
6developmental disability, chronological immaturity, relative
7immaturity, or child traumatic stress. Other than
8chronological immaturity, any of these conditions could look
9differently in similarly aged children. A diagnosis is not
10required for a finding of unfitness. A child is unfit when the
11child either:
12    (a) lacks sufficient present ability to consult with the
13child's attorney with a reasonable degree of rational
14understanding, as evidenced by lacking the ability to disclose
15to the attorney facts pertinent to the proceedings at issue
16and to assist in the child's defense; or
17    (b) lacks a rational or a factual understanding of the
18proceedings against the child, as evidenced by any one of the
19following:
20        (1) a lack of ability to identify who the participants
21    are, including the judge, child's attorney, State's
22    Attorney, or qualified expert;
23        (2) a lack of ability to differentiate the multiple
24    roles a single participant could serve in different
25    proceedings the child is involved in;

 

 

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1        (3) a lack of understanding of the allegations in the
2    petition;
3        (4) a lack of understanding of the range of possible
4    dispositions that may be imposed in the proceedings;
5        (5) a lack of ability to use the factual
6    understandings and factors in (1) through (4) of this
7    subsection to make rational decisions; or
8        (6) a lack of any other factors that a qualified
9    expert deems relevant.
 
10    (705 ILCS 405/5-5A-115 new)
11    Sec. 5-5A-115. Raising the issue of unfitness.
12    (a) The issue of the child's fitness to stand trial, to
13plead, or to be sentenced may be raised by the child's
14attorney, the State, or the court at any time before a plea is
15entered or before, during, or after trial.
16    (b) When the issue of the child's fitness is raised, the
17court must determine whether there is a bona fide doubt that
18the child is fit. The court shall find a bona fide doubt if any
19evidence presented or proffered suggests that the child could
20be unfit. If the court finds that there is a bona fide doubt,
21the court shall order a fitness evaluation pursuant to Section
225-5A-125 before proceeding further. Nothing in this Section
23shall operate to extinguish any rights of a child established
24by attorney-client privilege.
25    (c) When a child is being prosecuted under the criminal

 

 

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1laws of this State pursuant to Section 5-130 or 5-805, the
2criminal court shall apply the fitness standards in this Part.
3If the issue of the child's fitness is raised prior to the
4resolution of a transfer proceeding pursuant to Section 5-805,
5the juvenile court shall apply the fitness standards in this
6Part.
 
7    (705 ILCS 405/5-5A-120 new)
8    Sec. 5-5A-120. Burdens and presumptions. In making
9determinations on the issue of a child's fitness, the
10following burdens of proof and presumptions shall apply:
11        (1) when the court finds a bona fide doubt as to the
12    fitness of a child pursuant to Section 5-5A-115, the State
13    bears the burden of proving that the child is fit by clear
14    and convincing evidence; and
15        (2) a child who is receiving medication shall not be
16    presumed to be fit or unfit to stand trial solely by virtue
17    of the receipt of that medication.
 
18    (705 ILCS 405/5-5A-125 new)
19    Sec. 5-5A-125. Fitness evaluation. When the court orders a
20fitness evaluation pursuant to paragraph (b) of Section
215-5A-115, the court must appoint one or more qualified experts
22pursuant to Section 5-5A-135. Each expert must evaluate
23whether the child is fit and must submit a report of the
24expert's findings to the court pursuant to Section 5-5A-160.
 

 

 

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1    (705 ILCS 405/5-5A-130 new)
2    Sec. 5-5A-130. Location of evaluation. A fitness
3evaluation ordered pursuant to paragraph (b) of Section
45-5A-115 must be conducted in the least restrictive
5environment for the child. The evaluation must be conducted in
6person whenever possible. Video technology for a remote
7evaluation may be used only as a last resort. If video
8technology is used, it must be a secure platform.
 
9    (705 ILCS 405/5-5A-135 new)
10    Sec. 5-5A-135. Qualification of experts. An expert
11evaluating the child pursuant to Section 5-5A-125 must either
12be a licensed clinical psychologist or psychiatrist with
13training and experience in forensics, child development, and
14child trauma.
 
15    (705 ILCS 405/5-5A-140 new)
16    Sec. 5-5A-140. Timeline for evaluation. The fitness
17evaluation ordered pursuant to paragraph (b) of Section
185-5A-115 and report written pursuant to Section 5-5A-160 must
19be completed within 30 days of a court order entered pursuant
20to paragraph (b) of Section 5-5A-115. The time for completion
21of the fitness evaluation may be extended an additional 30
22days for good cause if the child is not in custody.
 

 

 

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1    (705 ILCS 405/5-5A-145 new)
2    Sec. 5-5A-145. Counsel at evaluation. The child's counsel
3must be allowed to be present at the evaluation conducted
4pursuant to Section 5-5A-125.
 
5    (705 ILCS 405/5-5A-150 new)
6    Sec. 5-5A-150. Statements made during evaluation. No
7statement made by the child during the evaluation conducted
8pursuant to Section 5-5A-125 shall be used against the child
9in the current court proceedings or in any future proceedings.
10No statement made by the child relating to the alleged offense
11or other offenses shall be included in the report required
12under Section 5-5A-160. The court must advise the child before
13the evaluation takes place that no statement made during the
14evaluation shall be used against the child.
 
15    (705 ILCS 405/5-5A-155 new)
16    Sec. 5-5A-155. Recordings of evaluations and privacy.
17    (a) An evaluation of the child conducted pursuant to
18Section 5-5A-125 shall be video recorded.
19    (b) The video recording of a fitness evaluation is
20confidential and may be viewed only by the court, the expert
21conducting the evaluation defined in Section 5-5A-125, the
22child's attorney, the State, and any other expert in the
23proceedings deemed necessary by the court and pursuant to
24Section 5-910.
 

 

 

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1    (705 ILCS 405/5-5A-160 new)
2    Sec. 5-5A-160. Contents of evaluation report.
3    (a) When an evaluation is conducted pursuant to Section
45-5A-125, the appointed expert must submit a written report of
5the findings to the court. The evaluation report must detail
6the methods and tools used during the evaluation and be made in
7writing.
8    (b) The evaluation report must contain:
9        (1) An assessment of any mental illness, substance use
10    disorder, or developmental disability of the child,
11    including:
12            (A) the results of a mental status exam;
13            (B) a description of the history and current
14        status of any symptoms of any mental illness and
15        developmental disability (a diagnosis is not
16        required);
17        (2) an assessment of the child's chronological and
18    relative immaturity;
19        (3) an assessment of any child traumatic stress,
20    including a description of the child's history of exposure
21    to traumatic events;
22        (4) an assessment of any other condition of the child
23    that could impact the child's functional abilities related
24    to fitness to stand trial;
25        (5) an assessment of the child's rational and factual

 

 

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1    understandings related to fitness to stand trial, the
2    unfitness standard in Section 5-5A-110, and the
3    relationship of these abilities to any conditions of the
4    child as assessed in paragraphs (1) through (4);
5        (6) whether the expert, based on the evaluation and in
6    the expert's professional judgment, believes the child is
7    fit;
8        (7) if the expert believes that the child is unfit,
9    whether the expert believes there is a substantial
10    probability that the child will attain fitness within the
11    period to attain fitness;
12        (8) recommendations, if the expert believes the child
13    is unfit, including:
14            (A) services that would help the child attain
15        fitness;
16            (B) placement for services to attain fitness; and
17            (C) risk assessments needed prior to placement;
18        and
19        (9) opinions on:
20            (A) the likelihood of the success of the services
21        recommended; and
22            (B) the length of time anticipated to attain
23        fitness.
 
24    (705 ILCS 405/5-5A-165 new)
25    Sec. 5-5A-165. Hearing to determine fitness.

 

 

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1    (a) When a bona fide doubt of fitness has been raised, the
2court shall conduct a hearing to determine the issue of the
3child's fitness within 30 days of receipt of the evaluation
4report described in Section 5-5A-160.
5    (b) Subject to the rules of evidence, matters admissible
6on the issue of the child's fitness include, but are not
7limited to, the unfitness standard under Section 5-5A-110.
8    (c) The child has the right to be present at every hearing
9on the issue of the child's fitness.
10    (d) On the basis of the evidence before it, the court must
11determine whether the child is unfit to stand trial pursuant
12to Section 5-5A-110. If the court finds that the child is
13unfit, the court shall determine:
14        (1) whether in-court assistance pursuant to Section
15    5-5A-190 would render the child fit; and
16        (2) whether there is a substantial probability that
17    the child, if provided with services to attain fitness
18    pursuant to Section 5-5A-170, will attain fitness within
19    the period to attain fitness set forth in Section
20    5-5A-175.
21    (e) If the court finds that the child is unfit and there is
22not a substantial probability the child will attain fitness
23within the period to attain fitness set forth in Section
245-5A-175, the court shall proceed under Section 5-5A-210.
25    (f) If the court finds the child is unfit but that there is
26a substantial probability that the child will become fit

 

 

SB4243- 11 -LRB102 29019 NLB 40921 b

1within the period to attain fitness set forth in Section
25-5A-175, or if the court is unable to determine whether a
3substantial probability exists, the court shall order the
4child to receive services to attain fitness at a placement
5pursuant to Section 5-5A-170. If the court is unable to
6determine whether a substantial probability exists and orders
7the child to receive services to attain fitness, the court
8shall conduct a hearing as soon as possible following the
9receipt of the report filed pursuant to Section 5-5A-180 to
10determine whether there is a substantial probability that the
11child will attain fitness within the period to attain fitness.
12    (g) If the court finds that the child is unfit to stand
13trial, it shall proceed pursuant to this Act. If the court
14finds that the child could be rendered fit with in-court
15assistance, the court shall order in-court assistance pursuant
16to Section 5-5A-190.
17    (h) An order finding the child unfit to stand trial is a
18final order for purposes of appeal by the State or the child.
 
19    (705 ILCS 405/5-5A-170 new)
20    Sec. 5-5A-170. Services to attain fitness.
21    (a) When the court orders services to attain fitness
22pursuant to Section 5-5A-165, the court shall place the child
23under the supervision of the Department of Human Services.
24Court-ordered services and placement shall be consistent with
25the recommendations in the evaluation report. All services

 

 

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1shall be trauma-informed, developmentally appropriate, and
2provided in the least restrictive environment considering the
3best interest of the child. A placement may be made on an
4inpatient basis only when the child has a condition warranting
5hospital-level care.
6    (b) Within 5 days of a court order for services to attain
7fitness entered pursuant to Section 5-5A-165, the clerk of the
8circuit court shall transmit, to the Department of Human
9Services, and any other agency or institution providing
10services to attain fitness to the child, the following:
11        (1) a certified copy of the order to receive services
12    and the complete copy of any report on the child's fitness
13    prepared pursuant to this Part;
14        (2) the county and municipality in which the alleged
15    offense occurred;
16        (3) the county and municipality in which the arrest
17    took place;
18        (4) a copy of the arrest report, charges, and arrest
19    record; and
20        (5) all additional matters that the court directs the
21    clerk to transmit.
 
22    (705 ILCS 405/5-5A-175 new)
23    Sec. 5-5A-175. Period to attain fitness. For a child
24charged with a felony, the maximum total time a court may order
25a child to receive services to attain fitness shall be one

 

 

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1year. For a child charged with a misdemeanor, the maximum
2total period shall be no longer than the sentence that could be
3imposed if the child were adjudicated delinquent of the most
4serious misdemeanor offense. The period to attain fitness
5shall begin with the court's first finding of unfitness during
6a fitness hearing pursuant to Section 5-5A-165.
 
7    (705 ILCS 405/5-5A-180 new)
8    Sec. 5-5A-180. Initial and subsequent progress reports.
9    (a) Within 30 days of entry of an order to receive services
10to attain fitness pursuant to Sections 5-5A-170 and 5-5A-175,
11the person in charge of supervising the child's services shall
12file with the court an initial report assessing the program's
13capacity to provide appropriate services for the child and
14indicating the person's opinion as to the probability of the
15child attaining fitness within the period to attain fitness
16provided in Section 5-5A-175. If the initial report indicates
17that there is a substantial probability that the child will
18attain fitness within the allowed period, the supervisor shall
19also file a services plan which shall include:
20        (1) a description of the goals of services to attain
21    fitness with respect to rendering the child fit, a
22    specification of the proposed modalities of services, and
23    an estimated timetable for attainment of the goals; and
24        (2) an identification of the person in charge of
25    supervising the child's services.

 

 

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1    (b) The supervisor shall submit a subsequent written
2progress report to the court at least 7 days prior to the date
3of any hearing on the issue of the child's fitness.
4    (c) If the supervisor determines that any of the following
5circumstances are met, the supervisor shall notify the court
6in writing as soon as possible but no later than 7 days after
7the determination is made:
8        (1) if the supervisor believes that the child has
9    attained fitness;
10        (2) if the supervisor believes that there is not a
11    substantial probability that the child will attain
12    fitness, with services, within the period to attain
13    fitness under Section 5-5A-175; or
14        (3) if the supervisor believes a change in services or
15    placement is necessary.
16    (d) The initial and subsequent progress reports shall
17contain:
18        (1) the clinical findings of the supervisor and the
19    facts upon which the findings are based;
20        (2) the opinion of the supervisor as to whether the
21    child has attained fitness and as to whether the child is
22    making progress, with services, toward attaining fitness
23    within the period set in Section 5-5A-175;
24        (3) whether the current services to attain fitness and
25    placement continue to be in the least restrictive
26    environment necessary, whether a different level of care

 

 

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1    is needed, and the basis for that recommendation; and
2        (4) any other changes in recommendations of services
3    to attain fitness.
4    (e) If the supervisor of the child's services determines,
5pursuant to paragraph (3) of subsection (d) of this Section,
6that the child is not in the least restrictive environment
7necessary to attain fitness, upon receipt of the progress
8report, the court shall ensure that the child is immediately
9moved to the least restrictive environment necessary.
 
10    (705 ILCS 405/5-5A-185 new)
11    Sec. 5-5A-185. Periodic hearings. Upon entry or
12continuation of any order to receive services to attain
13fitness, the court shall set a date for hearing to reexamine
14the issue of the child's fitness not more than 90 days
15thereafter. In addition, whenever the court receives a report
16from the supervisor of the child's services pursuant to
17paragraph (c) of Section 5-5A-180, the court shall set the
18matter for a hearing within 14 days unless good cause is
19demonstrated why the hearing cannot be held. On the date set,
20the court shall conduct a hearing to redetermine the child's
21fitness pursuant to Section 5-5A-165.
 
22    (705 ILCS 405/5-5A-190 new)
23    Sec. 5-5A-190. In-court assistance to render a child fit.
24    (a) If the court determines that the child could be

 

 

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1rendered fit with in-court assistance under Section 5-5A-165,
2the court shall order in-court assistance under subsection
3(b). A child found unfit because of chronological immaturity
4cannot be rendered fit with in-court assistance. A child found
5unfit because of relative immaturity or child traumatic stress
6cannot be rendered fit solely with in-court assistance.
7    (b) In-court assistance may include, but is not limited
8to:
9        (1) appointment of a qualified translator who shall
10    simultaneously translate all court proceedings into a
11    language understood by the child; and
12        (2) appointment of an expert qualified to assist a
13    child who, because of a disability, is unable to
14    communicate with the child's attorney.
15    (c) If in-court assistance is provided, the case may
16proceed to trial only if the court determines that in-court
17assistance renders the child fit. In such cases, the court
18shall state for the record the following:
19        (1) the qualifications and experience of the experts
20    or other persons appointed to provide in-court assistance
21    to the child;
22        (2) the court's reasons for selecting or appointing
23    the particular experts or other persons to provide the
24    in-court assistance to the child;
25        (3) how the appointment of the particular expert or
26    other persons will serve the goal of rendering the child

 

 

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1    fit, based on the appointee's qualifications and
2    experience, and the lack of functional, social, adaptive,
3    or intellectual abilities of the child; and
4        (4) any other factors considered by the court in
5    appointing the experts or other persons.
6    (d) A child adjudicated delinquent following a trial
7conducted with in-court assistance provided under this Section
8shall not be sentenced before a written report of social
9investigation is presented to and considered by the court. The
10written report of social investigation shall be prepared
11pursuant to Section 5-701 and shall include a physical and
12mental examination unless the court finds that the reports of
13prior physical and mental examinations conducted pursuant to
14this Part are adequate and recent enough to render additional
15examinations unnecessary.
 
16    (705 ILCS 405/5-5A-195 new)
17    Sec. 5-5A-195. Time Credit. A sentence imposed on the
18child in the pending case or in any other case arising out of
19the same conduct shall be reduced by time spent:
20        (1) in custody pursuant to orders issued under Section
21    5-5A-170 or pursuant to a commitment to the Department of
22    Human Services following a finding of unfitness under this
23    Part;
24        (2) in any court-ordered out-of-home placement;
25    including, but not limited to, a detention facility,

 

 

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1    rehabilitation center, or inpatient hospital; or
2        (3) home detention or electronic monitoring pursuant
3    to Section 5-7A-110.
 
4    (705 ILCS 405/5-5A-200 new)
5    Sec. 5-5A-200. Court organization of records. Any report
6filed with the court concerning diagnosis, evaluation,
7progress, or services made pursuant to this Part shall not be
8placed in the child's court record but shall be maintained
9separately by the clerk of the court and shall be available
10only to the court or an appellate court, the State, the child,
11the child's attorney, the child's parent, or a facility or
12program that provides services to the child pursuant to an
13order of the court. These records of the child shall be
14privileged and shall not be disclosed except under the
15conditions set forth in Section 5-910. Nothing in this Section
16shall operate to extinguish any rights of a child established
17by law, including, but not limited to: attorney-client,
18physician-patient, psychologist-client, or social
19worker-client privileges, except as otherwise provided by law.
 
20    (705 ILCS 405/5-5A-205 new)
21    Sec. 5-5A-205. Sentencing guidelines for a child who
22attains fitness. The court shall not impose a commitment to
23the Department of Juvenile Justice upon the child if the court
24believes that because of the child's condition, such a

 

 

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1sentence would not be in the interests of society and the
2child, or would subject the child to excessive hardship. In
3addition to any other conditions of a sentence of conditional
4discharge or probation, the court may require that the child
5receive additional services for the child's condition.
 
6    (705 ILCS 405/5-5A-210 new)
7    Sec. 5-5A-210. Legal disposition if fitness cannot be
8attained. The court shall dismiss the charges against the
9child with prejudice if the court finds the child is unfit
10under Section 5-5A-165 and that the child:
11        (1) cannot attain fitness within the period to attain
12    fitness defined in Section 5-5A-175 or that there is not a
13    substantial probability that the child will attain fitness
14    within the period to attain fitness defined under Section
15    5-5A-175; and
16        (2) cannot attain fitness with in-court assistance
17    pursuant to Section 5-5A-190.
 
18    (705 ILCS 405/5-5A-215 new)
19    Sec. 5-5A-215. Follow-up study and recommendations. The
20Illinois Juvenile Justice Commission shall develop and
21recommend mechanisms to collect and analyze data,
22disaggregated by race, ethnicity, gender, geography, age, and
23socioeconomic status, resulting from the implementation of
24this Part. The report and recommendations shall be submitted

 

 

SB4243- 20 -LRB102 29019 NLB 40921 b

1to the General Assembly by January 1, 2024.
 
2    Section 97. Severability. The provisions of this Act are
3severable under Section 1.31 of the Statute on Statutes.
 
4    Section 99. Effective date. This Act takes effect July 1,
52023.

 

 

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1 INDEX
2 Statutes amended in order of appearance
3    705 ILCS 405/Art. V Pt. 5A
4    heading new
5    705 ILCS 405/5-5A-101 new
6    705 ILCS 405/5-5A-105 new
7    705 ILCS 405/5-5A-110 new
8    705 ILCS 405/5-5A-115 new
9    705 ILCS 405/5-5A-120 new
10    705 ILCS 405/5-5A-125 new
11    705 ILCS 405/5-5A-130 new
12    705 ILCS 405/5-5A-135 new
13    705 ILCS 405/5-5A-140 new
14    705 ILCS 405/5-5A-145 new
15    705 ILCS 405/5-5A-150 new
16    705 ILCS 405/5-5A-155 new
17    705 ILCS 405/5-5A-160 new
18    705 ILCS 405/5-5A-165 new
19    705 ILCS 405/5-5A-170 new
20    705 ILCS 405/5-5A-175 new
21    705 ILCS 405/5-5A-180 new
22    705 ILCS 405/5-5A-185 new
23    705 ILCS 405/5-5A-190 new
24    705 ILCS 405/5-5A-195 new
25    705 ILCS 405/5-5A-200 new

 

 

SB4243- 22 -LRB102 29019 NLB 40921 b

1    705 ILCS 405/5-5A-205 new
2    705 ILCS 405/5-5A-210 new
3    705 ILCS 405/5-5A-215 new