Illinois General Assembly - Full Text of HB1294
Illinois General Assembly

  Bills & Resolutions  
  Compiled Statutes  
  Public Acts  
  Legislative Reports  
  IL Constitution  
  Legislative Guide  
  Legislative Glossary  

 Search By Number
 (example: HB0001)
Search Tips

Search By Keyword

Full Text of HB1294  103rd General Assembly




HB1294 EngrossedLRB103 24989 RLC 51323 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)

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



HB1294 Engrossed- 2 -LRB103 24989 RLC 51323 b

1    (705 ILCS 405/5-5A-105 new)
2    Sec. 5-5A-105. Definitions. As used in this Part:
3    "Child" means a person under the age of 21, regardless of
4whether the person is subject to this Act or prosecuted under
5the criminal laws of this State.
6    "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    "Chronological immaturity" means a lack of functional,
12social, adaptive, or intellectual ability due to chronological
14    "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    "Mental illness" means a mental or emotional disorder that
20substantially impairs a person's thought, perception of
21reality, emotional process, judgment, behavior, or ability to
22cope with the ordinary demands of life.
23    "Relative immaturity" means a lack of functional, social,
24adaptive, or intellectual ability when a child is compared to
25other children of the same chronological age.
26    "Substance use disorder" has the meaning given to that



HB1294 Engrossed- 3 -LRB103 24989 RLC 51323 b

1term 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 confluence of
5conditions, including, but not limited to, mental illness,
6substance use disorder, developmental disability,
7chronological immaturity, relative immaturity, or child
8traumatic stress. Other than chronological immaturity, any of
9these conditions could look different in similarly aged
10children. A diagnosis is not required for a finding of
11unfitness. A child is unfit when the child either:
12    (1) 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    (2) lacks a rational or a factual understanding of the
18proceedings against the child, as evidenced by any one or more
19of the following:
20        (A) 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        (B) a lack of ability to differentiate the multiple
24    roles a single participant could serve in different
25    proceedings the child is involved in;



HB1294 Engrossed- 4 -LRB103 24989 RLC 51323 b

1        (C) a lack of understanding of the allegations in the
2    petition for adjudication of delinquency;
3        (D) a lack of understanding of the range of possible
4    dispositions that may be imposed in the proceedings;
5        (E) a lack of ability to use the factual
6    understandings and factors in (A) through (D) of this
7    paragraph to make rational decisions; or
8        (F) 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 when
19evidence is presented or proffered that suggests that the
20child could be unfit. If the court finds that there is a bona
21fide doubt, the court shall order a fitness evaluation under
22Section 5-5A-125 before proceeding further. Nothing in this
23Section shall operate to extinguish any rights of a child
24established by attorney-client privilege.
25    (c) When a child is being prosecuted under the criminal



HB1294 Engrossed- 5 -LRB103 24989 RLC 51323 b

1laws of this State under Section 5-130 or 5-805, the criminal
2court shall apply the fitness standards in this Part. If the
3issue of the child's fitness is raised prior to the resolution
4of a transfer proceeding under Section 5-805, the juvenile
5court shall apply the fitness standards as set forth in this
7    (705 ILCS 405/5-5A-120 new)
8    Sec. 5-5A-120. Burdens and presumptions. In making
9determinations concerning a child's fitness, the following
10burdens of proof and presumptions shall apply:
11        (1) when the court finds a bona fide doubt as to the
12    fitness of a child under Section 5-5A-115, the State bears
13    the burden of proving that the child is fit by clear and
14    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 under subsection (b) of Section 5-5A-115,
21the court must appoint one or more qualified experts under
22Section 5-5A-135. Each expert must evaluate whether the child
23is fit and must submit a report of the expert's findings to the
24court under Section 5-5A-160. No expert employed or contracted



HB1294 Engrossed- 6 -LRB103 24989 RLC 51323 b

1by the Department of Human Services shall be ordered to
2perform, in the expert's official capacity, an initial fitness
3examination under this Section.
4    (705 ILCS 405/5-5A-130 new)
5    Sec. 5-5A-130. Location of evaluation. A fitness
6evaluation ordered under subsection (b) of Section 5-5A-115
7must be conducted in the least restrictive environment for the
8child. The evaluation must be conducted in person whenever
9possible. Video technology for a remote evaluation may be used
10only as a last resort. If video technology is used, it must be
11a secure platform. No facility of the Department of Human
12Services shall be utilized for this purpose.
13    (705 ILCS 405/5-5A-135 new)
14    Sec. 5-5A-135. Qualification of experts. An expert
15evaluating the child under Section 5-5A-125 must either be a
16licensed clinical psychologist or psychiatrist with training
17and experience in forensics, child development, and child
19    (705 ILCS 405/5-5A-140 new)
20    Sec. 5-5A-140. Timeline for evaluation. The fitness
21evaluation ordered under subsection (b) of Section 5-5A-115
22and report written under Section 5-5A-160 must be completed
23within 30 days of a court order entered pursuant to subsection



HB1294 Engrossed- 7 -LRB103 24989 RLC 51323 b

1(b) of Section 5-5A-115. The time for completion of the
2fitness evaluation may be extended an additional 30 days for
3good cause if the child is not in custody.
4    (705 ILCS 405/5-5A-145 new)
5    Sec. 5-5A-145. Counsel at evaluation. The child's counsel
6must be allowed to be present at the evaluation conducted, if
7requested by the child's counsel, under Section 5-5A-125.
8    (705 ILCS 405/5-5A-150 new)
9    Sec. 5-5A-150. Statements made during evaluation. No
10statement made by the child during the evaluation conducted
11under Section 5-5A-125 shall be used against the child in the
12current court proceedings or in any future proceedings. No
13statement made by the child relating to the alleged offense or
14other offenses shall be included in the report required under
15Section 5-5A-160. The court must advise the child before the
16evaluation takes place that no statement made during the
17evaluation shall be used against the child.
18    (705 ILCS 405/5-5A-155 new)
19    Sec. 5-5A-155. Recordings of evaluations and privacy.
20    (a) An evaluation of the child conducted under Section
215-5A-125 shall be video recorded.
22    (b) The video recording of a fitness evaluation is
23confidential and may be viewed only by the court, the expert



HB1294 Engrossed- 8 -LRB103 24989 RLC 51323 b

1conducting the evaluation defined in Section 5-5A-125, the
2child's attorney, the State, and any other expert in the
3proceedings deemed necessary by the court and under Section
5    (705 ILCS 405/5-5A-160 new)
6    Sec. 5-5A-160. Contents of evaluation report.
7    (a) When an evaluation is conducted under Section
85-5A-125, the appointed expert must submit a written report of
9the findings to the court. The evaluation report must detail
10the methods and tools used during the evaluation and be made in
12    (b) The evaluation report must contain:
13        (1) An assessment of any mental illness, substance use
14    disorder, or developmental disability of the child,
15    including:
16            (A) the results of a mental status exam;
17            (B) a description of the history and current
18        status of any symptoms of any mental illness or
19        developmental disability, or both (a diagnosis is not
20        required);
21        (2) an assessment of the child's chronological and
22    relative immaturity;
23        (3) an assessment of any child traumatic stress,
24    including a description of the child's history of exposure
25    to traumatic events;



HB1294 Engrossed- 9 -LRB103 24989 RLC 51323 b

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



HB1294 Engrossed- 10 -LRB103 24989 RLC 51323 b

1        fitness.
2    (705 ILCS 405/5-5A-165 new)
3    Sec. 5-5A-165. Hearing to determine fitness.
4    (a) When a bona fide doubt of fitness has been raised, the
5court shall conduct a hearing to determine the issue of the
6child's fitness within 30 days of receipt of the evaluation
7report described in Section 5-5A-160, unless the timeline is
8waived by the child's counsel.
9    (b) The child has the right to be present at every hearing
10on the issue of the child's fitness.
11    (c) On the basis of the evidence before it, the court must
12determine whether the child is unfit to stand trial pursuant
13to Section 5-5A-110. If the court finds that the child is
14unfit, the court shall determine:
15        (1) whether in-court assistance under Section 5-5A-190
16    would render the child fit; and
17        (2) whether there is a substantial probability that
18    the child, if provided with services to attain fitness
19    under Section 5-5A-170, will attain fitness within the
20    period to attain fitness set forth in Section 5-5A-175.
21    (d) If the court finds that the child is unfit and there is
22not a substantial probability the child will attain fitness
23within the statutory period as set forth in Section 5-5A-175,
24the court shall proceed under Section 5-5A-210.
25    (e) If the court finds the child is unfit but that there is



HB1294 Engrossed- 11 -LRB103 24989 RLC 51323 b

1a substantial probability that the child will become fit
2within the period to attain fitness set forth in Section
35-5A-175, or if the court is unable to determine whether a
4substantial probability exists, the court shall order the
5child to receive services to attain fitness at a placement
6under Section 5-5A-170. If the court is unable to determine
7whether a substantial probability exists and orders the child
8to receive services to attain fitness, the court shall conduct
9a hearing as soon as possible following the receipt of the
10report filed under Section 5-5A-180 to determine whether there
11is a substantial probability that the child will attain
12fitness within the statutory period.
13    (f) If the court finds that the child is unfit to stand
14trial, it shall proceed under this Act. If the court finds that
15the child could be rendered fit with in-court assistance, the
16court shall order in-court assistance pursuant to Section
18    (g) An order finding the child unfit to stand trial is a
19final order for purposes of appeal by the State or the child.
20    (705 ILCS 405/5-5A-170 new)
21    Sec. 5-5A-170. Services to attain fitness.
22    (a) When the court orders services to attain fitness under
23Section 5-5A-165, the court shall determine if the child will
24receive services on an inpatient or outpatient basis. If
25inpatient, the child shall be placed at a facility approved by



HB1294 Engrossed- 12 -LRB103 24989 RLC 51323 b

1the Department of Human Services to provide residential,
2restoration care and treatment. If the court orders the child
3to receive services on an outpatient basis, such services
4shall be rendered in the community at a program approved by the
5Department of Human Services. Court-ordered services and
6placements shall be consistent with the recommendations in the
7evaluation report. All services shall be trauma-informed,
8developmentally appropriate, and provided in the least
9restrictive environment considering the needs and best
10interests of the child. A placement may be ordered on an
11inpatient basis only when the child exhibits needs warranting
12a hospital level of care.
13    (b) Within 5 days of a court order for services to attain
14fitness entered under Section 5-5A-165, the clerk of the
15circuit court shall transmit, to the Department of Human
16Services, and any other agency or institution providing
17services to attain fitness to the child, the following:
18        (1) a certified copy of the order to receive services
19    and the complete copy of any report on the child's fitness
20    prepared under this Part;
21        (2) the county and municipality in which the alleged
22    offense occurred;
23        (3) the county and municipality in which the arrest
24    took place;
25        (4) a copy of the arrest report, charges, and arrest
26    record; and



HB1294 Engrossed- 13 -LRB103 24989 RLC 51323 b

1        (5) all additional matters that the court directs the
2    clerk to transmit.
3    (705 ILCS 405/5-5A-175 new)
4    Sec. 5-5A-175. Period to attain fitness. For a child
5charged with a felony, the maximum total time a court may order
6a child to receive services to attain fitness shall be one
7year. For a child charged with a misdemeanor, the maximum
8total period shall be no longer than the length of the sentence
9that could be imposed if the child were adjudicated delinquent
10of the misdemeanor offense for which the child was charged, or
11one year whichever is shorter. The period to attain fitness
12shall begin with the court's first finding of unfitness during
13a fitness hearing under Section 5-5A-165.
14    (705 ILCS 405/5-5A-180 new)
15    Sec. 5-5A-180. Initial and subsequent progress reports.
16    (a) Within 30 days of entry of an order to receive services
17to attain fitness under Sections 5-5A-170 and 5-5A-175, the
18person in charge of supervising the child's services shall
19file with the court an initial report assessing the program's
20capacity to provide appropriate services for the child and
21indicating the person's opinion as to the probability of the
22child attaining fitness within the period to attain fitness
23provided in Section 5-5A-175. If the initial report indicates
24that there is a substantial probability that the child will



HB1294 Engrossed- 14 -LRB103 24989 RLC 51323 b

1attain fitness within the allowed statutory period, the
2supervisor shall also file a services plan which shall
4        (1) a description of the goals of services to attain
5    fitness with respect to rendering the child fit, a
6    specification of the proposed modalities of services, and
7    an estimated timetable for attainment of the goals; and
8        (2) an identification of the person in charge of
9    supervising the child's services.
10    (b) The supervisor shall submit a subsequent written
11progress report to the court at least 7 days prior to the date
12of any hearing on the issue of the child's fitness.
13    (c) If the supervisor determines that any of the following
14circumstances are met, the supervisor shall notify the court
15in writing as soon as possible but no later than 7 days after
16the determination is made:
17        (1) if the supervisor believes that the child has
18    attained fitness;
19        (2) if the supervisor believes that there is not a
20    substantial probability that the child will attain
21    fitness, with services, within the period to attain
22    fitness under Section 5-5A-175; or
23        (3) if the supervisor believes a change in services or
24    placement is necessary.
25    (d) The initial and subsequent progress reports shall



HB1294 Engrossed- 15 -LRB103 24989 RLC 51323 b

1        (1) the clinical findings of the supervisor and the
2    facts upon which the findings are based;
3        (2) the opinion of the supervisor as to whether the
4    child has attained fitness and as to whether the child is
5    making progress, with services, toward attaining fitness
6    within the period set in Section 5-5A-175;
7        (3) whether the current services to attain fitness and
8    placement continue to be in the least restrictive
9    environment necessary, whether a different level of care
10    is needed, and the basis for that recommendation; and
11        (4) any other changes in recommendations of services
12    to attain fitness.
13    (e) If the supervisor of the child's services determines,
14under paragraph (3) of subsection (d) of this Section, that
15the child is not in the least restrictive environment
16necessary to attain fitness, upon receipt of the progress
17report, the court shall ensure that the child is immediately
18moved to the least restrictive environment necessary.
19    (705 ILCS 405/5-5A-185 new)
20    Sec. 5-5A-185. Periodic hearings. Upon entry or
21continuation of any order to receive services to attain
22fitness, the court shall set a date for hearing to reexamine
23the issue of the child's fitness not more than 90 days
24thereafter. In addition, whenever the court receives a report
25from the supervisor of the child's services under subsection



HB1294 Engrossed- 16 -LRB103 24989 RLC 51323 b

1(c) of Section 5-5A-180, the court shall set the matter for a
2hearing within 14 days unless good cause is demonstrated why
3the hearing cannot be held. On the date set, the court shall
4conduct a hearing to redetermine the child's fitness under
5Section 5-5A-165.
6    (705 ILCS 405/5-5A-190 new)
7    Sec. 5-5A-190. In-court assistance to render a child fit.
8    (a) If the court determines that the child could be
9rendered fit with in-court assistance under Section 5-5A-165,
10the court shall order in-court assistance under subsection
11(b). A child found unfit because of chronological immaturity
12cannot be rendered fit with in-court assistance. A child found
13unfit because of relative immaturity or child traumatic stress
14cannot be rendered fit solely with in-court assistance.
15    (b) In-court assistance may include, but is not limited
17        (1) appointment of a qualified translator who shall
18    simultaneously translate all court proceedings into a
19    language understood by the child; and
20        (2) appointment of an expert qualified to assist a
21    child who, because of a disability, is unable to
22    communicate with the child's attorney.
23    (c) If in-court assistance is provided, the case may
24proceed to trial only if the court determines that in-court
25assistance renders the child fit. In such cases, the court



HB1294 Engrossed- 17 -LRB103 24989 RLC 51323 b

1shall state for the record the following:
2        (1) the qualifications and experience of the experts
3    or other persons appointed to provide in-court assistance
4    to the child;
5        (2) the court's reasons for selecting or appointing
6    the particular experts or other persons to provide the
7    in-court assistance to the child;
8        (3) how the appointment of the particular expert or
9    other persons will serve the goal of rendering the child
10    fit, based on the appointee's qualifications and
11    experience, and the lack of functional, social, adaptive,
12    or intellectual abilities of the child; and
13        (4) any other factors considered by the court in
14    appointing the experts or other persons.
15    (d) A child adjudicated delinquent following a trial
16conducted with in-court assistance provided under this Section
17shall not be sentenced before a written report of social
18investigation is presented to and considered by the court. The
19written report of social investigation shall be prepared under
20Section 5-701 and shall include a physical and mental
21examination unless the court finds that the reports of prior
22physical and mental examinations conducted under this Part are
23adequate and recent enough to render additional examinations
25    (705 ILCS 405/5-5A-195 new)



HB1294 Engrossed- 18 -LRB103 24989 RLC 51323 b

1    Sec. 5-5A-195. Time credit. A sentence imposed on the
2child in the pending case or in any other case arising out of
3the same conduct shall be reduced by time spent:
4        (1) in custody under orders issued under Section
5    5-5A-170 or under a commitment to the Department of Human
6    Services following a finding of unfitness under this Part;
7        (2) in any court-ordered out-of-home placement;
8    including, but not limited to, a detention facility,
9    rehabilitation center, or inpatient hospital; or
10        (3) home detention or electronic monitoring pursuant
11    to Section 5-7A-110.
12    (705 ILCS 405/5-5A-200 new)
13    Sec. 5-5A-200. Court organization of records. Any report
14filed with the court concerning diagnosis, evaluation,
15progress, or services made under this Part shall not be placed
16in the child's court record but shall be maintained separately
17by the clerk of the court and shall be available only to the
18court or an appellate court, the State, the child, the child's
19attorney, the child's parent or guardian, or a facility or
20program that provides services to the child under an order of
21the court. These records of the child shall be privileged and
22shall not be disclosed except under the conditions set forth
23in Section 5-910. Nothing in this Section shall operate to
24extinguish any rights of a child established by law,
25including, but not limited to: attorney-client,



HB1294 Engrossed- 19 -LRB103 24989 RLC 51323 b

1physician-patient, psychologist-client, or social
2worker-client privileges, except as otherwise provided by law.
3    (705 ILCS 405/5-5A-205 new)
4    Sec. 5-5A-205. Sentencing guidelines for a child who
5attains fitness. The court shall not impose a commitment to
6the Department of Juvenile Justice upon the child if the court
7believes that because of the child's condition, such a
8sentence would not be in the interests of society and the
9child, or would subject the child to excessive hardship. In
10addition to any other conditions of a sentence of conditional
11discharge or probation, the court may require that the child
12receive additional services for the child's condition.
13    (705 ILCS 405/5-5A-210 new)
14    Sec. 5-5A-210. Legal disposition if fitness cannot be
15attained. The court shall dismiss the charges against the
16child with prejudice if the court finds the child is unfit
17under Section 5-5A-165 and that the child:
18        (1) cannot attain fitness within the period to attain
19    fitness defined in Section 5-5A-175 or that there is not a
20    substantial probability that the child will attain fitness
21    within the period to attain fitness defined under Section
22    5-5A-175; and
23        (2) cannot attain fitness with in-court assistance
24    under Section 5-5A-190.



HB1294 Engrossed- 20 -LRB103 24989 RLC 51323 b

1    (705 ILCS 405/5-5A-215 new)
2    Sec. 5-5A-215. Follow-up study and recommendations. The
3Illinois Juvenile Justice Commission shall develop and
4recommend mechanisms to collect and analyze data,
5disaggregated by race, ethnicity, gender, geography, age, and
6socioeconomic status, resulting from the implementation of
7this Part. The report and recommendations shall be submitted
8to the General Assembly by January 1, 2024.
9    Section 97. Severability. The provisions of this Act are
10severable under Section 1.31 of the Statute on Statutes.
11    Section 99. Effective date. This Act takes effect July 1,