093_HB0056enr

HB0056 Enrolled                      LRB093 02359 RLC 02367 b

 1        AN ACT in relation to criminal law.

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

 4        Section  5. The Unified Code of Corrections is amended by
 5    changing 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
 8    Insanity.
 9        (a)  After  a  finding or verdict of not guilty by reason
10    of insanity under Sections 104-25, 115-3 or 115-4 of The Code
11    of Criminal Procedure of 1963, the defendant shall be ordered
12    to the Department of Human Services for an evaluation  as  to
13    whether  he is subject to involuntary admission or in need of
14    mental health services.  The order shall specify whether  the
15    evaluation  shall  be conducted on an inpatient or outpatient
16    basis. If the evaluation is to be conducted on  an  inpatient
17    basis,  the  defendant  shall  be  placed in a secure setting
18    unless the Court determines that there are compelling reasons
19    why such placement is not necessary. After the evaluation and
20    during  the  period  of  time  required  to   determine   the
21    appropriate  placement,  the  defendant shall remain in jail.
22    Upon completion of the placement  process the  sheriff  shall
23    be   notified  and  shall  transport  the  defendant  to  the
24    designated facility.
25        The Department shall provide the Court with a  report  of
26    its evaluation within 30 days of the date of this order.  The
27    Court  shall  hold  a  hearing  as  provided under the Mental
28    Health and Developmental Disabilities Code  to  determine  if
29    the  individual is: (a) subject to involuntary admission; (b)
30    in need of mental health services on an inpatient basis;  (c)
31    in need of mental health services on an outpatient basis; (d)
 
HB0056 Enrolled             -2-      LRB093 02359 RLC 02367 b
 1    a  person  not  in need of mental health services.  The Court
 2    shall enter its findings.
 3        If the defendant is found to be  subject  to  involuntary
 4    admission  or  in  need  of  mental  health  services  on  an
 5    inpatient  care basis, the Court shall order the defendant to
 6    the Department of Human  Services.  The  defendant  shall  be
 7    placed  in  a secure setting unless the Court determines that
 8    there are  compelling  reasons  why  such  placement  is  not
 9    necessary.  Such  defendants placed in a secure setting shall
10    not be permitted outside the facility's housing  unit  unless
11    escorted  or  accompanied  by  personnel of the Department of
12    Human Services or with the prior approval of  the  Court  for
13    unsupervised  on-grounds  privileges  as provided herein. Any
14    defendant  placed  in  a  secure  setting  pursuant  to  this
15    Section, transported to court  hearings  or  other  necessary
16    appointments   off  facility  grounds  by  personnel  of  the
17    Department of Human  Services,  may  be  placed  in  security
18    devices   or   otherwise   secured   during   the  period  of
19    transportation to assure secure transport  of  the  defendant
20    and  the safety of Department of Human Services personnel and
21    others.   These  security  measures  shall   not   constitute
22    restraint  as  defined in the Mental Health and Developmental
23    Disabilities Code. If the defendant is found to be in need of
24    mental health services, but not on an inpatient  care  basis,
25    the  Court  shall  conditionally release the defendant, under
26    such  conditions  as  set  forth  in  this  Section  as  will
27    reasonably assure the defendant's  satisfactory  progress  in
28    treatment  or  rehabilitation and the safety of the defendant
29    or others.  If the Court finds the  person  not  in  need  of
30    mental  health  services,  then  the  Court  shall  order the
31    defendant discharged from custody.
32        (1)  Definitions:  For the purposes of this Section:
33             (A)  "Subject to involuntary  admission"  means:   a
34        defendant   has  been  found  not  guilty  by  reason  of
 
HB0056 Enrolled             -3-      LRB093 02359 RLC 02367 b
 1        insanity; and
 2                  (i)  who is mentally ill and who because of his
 3             mental illness is  reasonably  expected  to  inflict
 4             serious physical harm upon himself or another in the
 5             near future; or
 6                  (ii)  who  is  mentally  ill and who because of
 7             his illness is  unable  to  provide  for  his  basic
 8             physical  needs  so as to guard himself from serious
 9             harm.
10             (B)  "In  need  of  mental  health  services  on  an
11        inpatient basis" means: a defendant who  has  been  found
12        not  guilty  by  reason of insanity who is not subject to
13        involuntary admission but who is reasonably  expected  to
14        inflict serious physical harm upon himself or another and
15        who  would  benefit  from inpatient care or is in need of
16        inpatient care.
17             (C)  "In  need  of  mental  health  services  on  an
18        outpatient basis" means: a defendant who has  been  found
19        not  guilty  by  reason of insanity who is not subject to
20        involuntary  admission  or  in  need  of  mental   health
21        services  on  an  inpatient  basis,  but  is  in  need of
22        outpatient  care,  drug  and/or  alcohol   rehabilitation
23        programs,   community  adjustment  programs,  individual,
24        group, or family therapy, or chemotherapy.
25             (D)  "Conditional Release" means: the  release  from
26        either the custody of the Department of Human Services or
27        the  custody  of the Court of a person who has been found
28        not guilty by reason of insanity under such conditions as
29        the  Court  may  impose  which  reasonably   assure   the
30        defendant's   satisfactory   progress   in  treatment  or
31        habilitation and the safety of the defendant and  others.
32        The  Court shall consider such terms and conditions which
33        may include, but need not be limited to, outpatient care,
34        alcoholic and  drug  rehabilitation  programs,  community
 
HB0056 Enrolled             -4-      LRB093 02359 RLC 02367 b
 1        adjustment   programs,  individual,  group,  family,  and
 2        chemotherapy, periodic checks with the legal  authorities
 3        and/or  the  Department of Human Services.  The Court may
 4        order the Department of Human Services to provide care to
 5        any person conditionally  released  under  this  Section.
 6        The  Department  may  contract with any public or private
 7        agency in order to discharge any responsibilities imposed
 8        under this Section.  The  Department  shall  monitor  the
 9        provision  of  services to persons conditionally released
10        under this Section and provide periodic  reports  to  the
11        Court  concerning  the  services and the condition of the
12        defendant.  Whenever a person is  conditionally  released
13        pursuant  to  this  Section, the State's Attorney for the
14        county in which the hearing is held  shall  designate  in
15        writing  the  name,  telephone  number,  and address of a
16        person employed by him or her who shall  be  notified  in
17        the  event  that  either  the  reporting  agency  or  the
18        Department  decides  that  the conditional release of the
19        defendant should  be  revoked  or  modified  pursuant  to
20        subsection  (i)  of  this Section  The person or facility
21        rendering  the  outpatient  care  shall  be  required  to
22        periodically report to the Court on the progress  of  the
23        defendant. Such conditional release shall be for a period
24        of  five years. However, unless the defendant, the person
25        or facility rendering the treatment, therapy, program  or
26        outpatient  care, the Department, or the State's Attorney
27        may petition petitions the Court for an extension of  the
28        conditional  release  period  for  an  additional 5 three
29        years. Upon receipt of such a petition, the  Court  shall
30        hold  a  hearing  consistent  with the provisions of this
31        paragraph (a) and paragraph (f) of  this  Section,  shall
32        determine  whether  the  defendant  should continue to be
33        subject to the terms of conditional  release,  and  shall
34        enter an order either extending the defendant's period of
 
HB0056 Enrolled             -5-      LRB093 02359 RLC 02367 b
 1        conditional  release  for  an a single additional 5 three
 2        year period or discharging  the  defendant.    Additional
 3        5-year  periods  of  conditional  release  may be ordered
 4        following  a  hearing  as  provided  in   this   Section.
 5        However,  in  no  event  shall  the defendant's period of
 6        conditional release continue beyond the maximum period of
 7        commitment ordered by the court pursuant to paragraph (b)
 8        of this Section exceed eight years. These provisions  for
 9        extension  of  conditional  release  shall  only apply to
10        defendants  conditionally  released  on  or   after   the
11        effective date of this amendatory Act of the 93rd General
12        Assembly  July  1, 1979. However the extension provisions
13        of Public Act 83-1449 apply only  to  defendants  charged
14        with a forcible felony.
15             (E)  "Facility  director" means the chief officer of
16        a mental health or developmental disabilities facility or
17        his or her designee or the supervisor  of  a  program  of
18        treatment   or  habilitation  or  his  or  her  designee.
19        "Designee"   may   include    a    physician,    clinical
20        psychologist,   social  worker,  or  nurse,  or  clinical
21        professional counselor.
22        (b)  If  the  Court  finds  the  defendant   subject   to
23    involuntary admission or in need of mental health services on
24    an inpatient basis, the admission, detention, care, treatment
25    or   habilitation,   treatment   plans,  review  proceedings,
26    including  review  of  treatment  and  treatment  plans,  and
27    discharge of the defendant after such order  shall  be  under
28    the Mental Health and Developmental Disabilities Code, except
29    that the initial order for admission of a defendant acquitted
30    of  a felony by reason of insanity shall be for an indefinite
31    period of time. Such period of commitment  shall  not  exceed
32    the maximum length of time that the defendant would have been
33    required  to  serve,  less  credit  for good behavior, before
34    becoming eligible for release had he been  convicted  of  and
 
HB0056 Enrolled             -6-      LRB093 02359 RLC 02367 b
 1    received  the maximum sentence for the most serious crime for
 2    which he has been acquitted by reason of insanity. The  Court
 3    shall  determine  the  maximum  period  of  commitment  by an
 4    appropriate order. During  this period of time, the defendant
 5    shall not be permitted to be in the community in any  manner,
 6    including  but not limited to off-grounds privileges, with or
 7    without escort  by  personnel  of  the  Department  of  Human
 8    Services,  unsupervised  on-grounds  privileges, discharge or
 9    conditional  or  temporary  release,  except  by  a  plan  as
10    provided in this Section.  In no event  shall  a  defendant's
11    continued unauthorized absence be a basis for discharge.  Not
12    more   than  30  days  after  admission  and  every  60  days
13    thereafter so long as the initial order  remains  in  effect,
14    the facility director shall file a treatment plan report with
15    the  court and forward a copy of the treatment plan report to
16    the clerk  of  the  court,  the  State's  Attorney,  and  the
17    defendant's  attorney,  if  the  defendant  is represented by
18    counsel, or to a person authorized by the defendant under the
19    Mental Health and Developmental Disabilities  Confidentiality
20    Act  to  be  sent  a  copy  of  the report.  The report shall
21    include an opinion as to whether the defendant  is  currently
22    subject  to  involuntary  admission, in need of mental health
23    services on an inpatient basis, or in need of  mental  health
24    services  on  an  outpatient  basis.   The  report shall also
25    summarize the basis for those findings and provide a  current
26    summary  of  the following items from the treatment plan: (1)
27    an assessment of  the  defendant's  treatment  needs,  (2)  a
28    description  of  the  services recommended for treatment, (3)
29    the goals  of  each  type  of  element  of  service,  (4)  an
30    anticipated  timetable  for  the accomplishment of the goals,
31    and  (5)  a  designation  of   the   qualified   professional
32    responsible  for  the  implementation of the plan. The report
33    may  also   include   unsupervised   on-grounds   privileges,
34    off-grounds  privileges  (with or without escort by personnel
 
HB0056 Enrolled             -7-      LRB093 02359 RLC 02367 b
 1    of  the  Department  of  Human  Services),  home  visits  and
 2    participation  in  work  programs,  but   only   where   such
 3    privileges  have been approved by specific court order, which
 4    order may include such conditions on  the  defendant  as  the
 5    Court may deem appropriate and necessary to reasonably assure
 6    the  defendant's  satisfactory  progress in treatment and the
 7    safety of the defendant and others.
 8        (c)  Every defendant acquitted of a felony by  reason  of
 9    insanity  and subsequently found to be subject to involuntary
10    admission or in need  of  mental  health  services  shall  be
11    represented  by counsel in all proceedings under this Section
12    and under the Mental Health  and  Developmental  Disabilities
13    Code.
14             (1)  The  Court  shall appoint as counsel the public
15        defender or an attorney licensed by this State.
16             (2)  Upon  filing  with  the  Court  of  a  verified
17        statement of  legal  services  rendered  by  the  private
18        attorney  appointed  pursuant  to  paragraph  (1) of this
19        subsection, the Court shall determine  a  reasonable  fee
20        for such services.  If the defendant is unable to pay the
21        fee, the Court shall enter an order upon the State to pay
22        the  entire fee or such amount as the defendant is unable
23        to pay from funds appropriated by  the  General  Assembly
24        for that purpose.
25        (d)  When the facility director determines that:
26             (1)  the   defendant   is   no   longer  subject  to
27        involuntary  admission  or  in  need  of  mental   health
28        services on an inpatient basis; and
29             (2)  the  defendant  may  be  conditionally released
30        because he or she is  still  in  need  of  mental  health
31        services  or  that the defendant may be discharged as not
32        in need of any mental health services; or
33             (3)  the defendant no longer requires placement in a
34        secure setting;
 
HB0056 Enrolled             -8-      LRB093 02359 RLC 02367 b
 1    the facility director shall give written notice to the Court,
 2    State's Attorney and defense attorney. Such notice shall  set
 3    forth  in  detail  the  basis  for  the recommendation of the
 4    facility director, and specify clearly  the  recommendations,
 5    if  any,  of  the  facility  director, concerning conditional
 6    release.  Any recommendation for  conditional  release  shall
 7    include   an   evaluation   of   the   defendant's  need  for
 8    psychotropic medication, what provisions should be  made,  if
 9    any,  to  ensure  that the defendant will continue to receive
10    psychotropic  medication  following   discharge,   and   what
11    provisions  should  be  made  to  assure  the  safety  of the
12    defendant and others in the event the defendant is no  longer
13    receiving  psychotropic  medication.    Within 30 days of the
14    notification by the facility director, the Court shall set  a
15    hearing and make a finding as to whether the defendant is:
16             (i)  subject to involuntary admission; or
17             (ii)  in  need of mental health services in the form
18        of inpatient care; or
19             (iii)  in need of mental  health  services  but  not
20        subject to involuntary admission or inpatient care; or
21             (iv)  no  longer  in need of mental health services;
22        or
23             (v)  no  longer  requires  placement  in  a   secure
24        setting.
25        Upon  finding  by  the  Court,  the Court shall enter its
26    findings and such appropriate order as provided in subsection
27    (a) of this Section.
28        (e)  A defendant admitted pursuant to  this  Section,  or
29    any  person on his behalf, may  file a petition for treatment
30    plan review, transfer to  a  non-secure  setting  within  the
31    Department  of  Human  Services  or  discharge or conditional
32    release under the standards of  this  Section  in  the  Court
33    which  rendered  the verdict.  Upon receipt of a petition for
34    treatment plan review, transfer to a  non-secure  setting  or
 
HB0056 Enrolled             -9-      LRB093 02359 RLC 02367 b
 1    discharge  or  conditional  release,  the  Court  shall set a
 2    hearing to be held  within  120  days.   Thereafter,  no  new
 3    petition  may  be  filed  for  120  days without leave of the
 4    Court.
 5        (f)  The Court shall direct that notice of the  time  and
 6    place  of  the  hearing  be  served  upon  the defendant, the
 7    facility director, the State's Attorney, and the  defendant's
 8    attorney.  If requested by either the State or the defense or
 9    if  the  Court  feels  it  is   appropriate,   an   impartial
10    examination  of  the  defendant by a psychiatrist or clinical
11    psychologist as defined in Section 1-103 of the Mental Health
12    and Developmental Disabilities Code who is not in the  employ
13    of the Department of Human Services shall be ordered, and the
14    report considered at the time of the hearing.
15        (g)  The  findings  of  the Court shall be established by
16    clear and convincing evidence.  The burden of proof  and  the
17    burden  of  going  forth  with  the  evidence  rest  with the
18    defendant or any person on  the  defendant's  behalf  when  a
19    hearing  is  held to review the determination of the facility
20    director that  the  defendant  should  be  transferred  to  a
21    non-secure  setting, discharged, or conditionally released or
22    when a hearing is held to review a petition filed  by  or  on
23    behalf  of the defendant.  The evidence shall be presented in
24    open   Court   with   the   right   of   confrontation    and
25    cross-examination.
26        (h)  Before  the  court  orders  that  the  defendant  be
27    discharged  or  conditionally  released,  it  shall order the
28    facility director to establish a discharge plan that includes
29    a plan for the defendant's shelter, support, and  medication.
30    If  appropriate,  the  court  shall  order  that the facility
31    director establish  a  program  to  train  the  defendant  in
32    self-medication under standards established by the Department
33    of  Human Services.  If the Court finds that the defendant is
34    no longer in need of mental health services  it  shall  order
 
HB0056 Enrolled             -10-     LRB093 02359 RLC 02367 b
 1    the  facility  director  to  discharge the defendant.  If the
 2    Court finds that the defendant is in need  of  mental  health
 3    services,  and  no longer in need of inpatient care, it shall
 4    order the facility director to release  the  defendant  under
 5    such  conditions  as  the  Court  deems  appropriate  and  as
 6    provided  by  this Section. Such conditional release shall be
 7    imposed for a period of five years and shall be subject    to
 8    later  modification by the Court as provided by this Section.
 9    If  the  Court  finds  that  the  defendant  is  subject   to
10    involuntary admission or in need of mental health services on
11    an  inpatient basis, it shall order the facility director not
12    to discharge or release  the  defendant  in  accordance  with
13    paragraph (b) of this Section.
14        (i)  If  within the period of the defendant's conditional
15    release the State's Attorney determines  that  the  defendant
16    has  not  fulfilled the conditions of his or her release, the
17    State's Attorney may petition the Court to revoke  or  modify
18    the conditional release of the defendant.  Upon the filing of
19    such petition the defendant may be remanded to the custody of
20    the  Department,  or  to  any  other  mental  health facility
21    designated by the Department, pending the resolution  of  the
22    petition.    Nothing   in  this  Section  shall  prevent  the
23    emergency admission of a defendant pursuant to Article VI  of
24    Chapter   III   of   the   Mental  Health  and  Developmental
25    Disabilities Code or the voluntary admission of the defendant
26    pursuant to Article IV of Chapter III of  the  Mental  Health
27    and Developmental Disabilities Code. If the Court determines,
28    after  hearing evidence, that the defendant has not fulfilled
29    the conditions of release, the Court shall order a hearing to
30    be held consistent with the provisions of paragraph  (f)  and
31    (g) of this Section. At such hearing, if the Court finds that
32    the  defendant is subject to involuntary admission or in need
33    of mental health services on an  inpatient  basis,  it  shall
34    enter  an  order  remanding  him  or her to the Department of
 
HB0056 Enrolled             -11-     LRB093 02359 RLC 02367 b
 1    Human  Services  or  other  facility.  If  the  defendant  is
 2    remanded to the Department of Human Services, he or she shall
 3    be placed in a secure setting  unless  the  Court  determines
 4    that  there are compelling reasons that such placement is not
 5    necessary. If the Court finds that the  defendant   continues
 6    to  be  in  need  of  mental  health  services  but not on an
 7    inpatient basis, it may modify the conditions of the original
 8    release  in  order  to  reasonably  assure  the   defendant's
 9    satisfactory  progress in treatment and his or her safety and
10    the  safety  of  others  in  accordance  with  the  standards
11    established in paragraph (1) (D) of  subsection  (a).  In  no
12    event  shall  such  conditional  release be longer than eight
13    years. Nothing in this Section shall limit a Court's contempt
14    powers or any other powers of a Court.
15        (j)  An order of admission under this  Section  does  not
16    affect the remedy of habeas corpus.
17        (k)  In  the event of a conflict between this Section and
18    the Mental Health and Developmental Disabilities Code or  the
19    Mental  Health and Developmental Disabilities Confidentiality
20    Act, the provisions of this Section shall govern.
21        (l)  This amendatory Act shall apply to all  persons  who
22    have  been found not guilty by reason of insanity and who are
23    presently committed to the Department of  Mental  Health  and
24    Developmental  Disabilities  (now  the  Department  of  Human
25    Services).
26        (m)  The  Clerk of the Court shall, after the entry of an
27    order of transfer to a non-secure setting of  the  Department
28    of  Human  Services  or  discharge  or  conditional  release,
29    transmit  a  certified copy of the order to the Department of
30    Human Services, and the sheriff of the county from which  the
31    defendant  was  admitted.   In  cases where the arrest of the
32    defendant or the commission of the offense took place in  any
33    municipality  with  a population of more than 25,000 persons,
34    The Clerk of the Court shall also transmit a  certified  copy
 
HB0056 Enrolled             -12-     LRB093 02359 RLC 02367 b
 1    of  the  order  of  discharge  or  conditional release to the
 2    Illinois Department  of  State  Police,  to  the  proper  law
 3    enforcement  agency  for  the  said  municipality  where  the
 4    offense  took  place,  and  to the sheriff of the county into
 5    which  the  defendant  is  conditionally   discharged.    The
 6    Illinois   Department   of  State  Police  shall  maintain  a
 7    centralized record of discharged  or  conditionally  released
 8    defendants  while they are under court supervision for access
 9    and use of appropriate law enforcement agencies provided  the
10    municipality has requested such notice in writing.
11    (Source:  P.A.  90-105,  eff.  7-11-97; 90-593, eff. 6-19-98;
12    91-536, eff. 1-1-00; 91-770, eff. 1-1-01.)