Full Text of SB1276 100th General Assembly
SB1276enr 100TH GENERAL ASSEMBLY |
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| 1 | | AN ACT concerning criminal law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Code of Criminal Procedure of 1963 is | 5 | | amended by changing Section 104-15 as follows:
| 6 | | (725 ILCS 5/104-15) (from Ch. 38, par. 104-15)
| 7 | | Sec. 104-15. Report. | 8 | | (a) The person or persons conducting an examination
of the | 9 | | defendant, pursuant to paragraph (a) or (b) of Section 104-13 | 10 | | shall
submit a written report to the court, the State, and the | 11 | | defense within
30 days of the date of the order. The
report | 12 | | shall include:
| 13 | | (1) A diagnosis and an explanation as to how it was | 14 | | reached and the facts
upon which it is based;
| 15 | | (2) A description of the defendant's mental or physical | 16 | | disability, if
any; its severity; and an opinion as to | 17 | | whether and to what extent it impairs
the defendant's | 18 | | ability to understand the nature and purpose of
the | 19 | | proceedings against him or to assist in his defense, or | 20 | | both.
| 21 | | (b) If the report indicates that the defendant is not fit | 22 | | to stand trial
or to plead because of a disability, the report | 23 | | shall include an opinion
as to the likelihood of the defendant |
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| 1 | | attaining fitness within a period of time from the date of the | 2 | | finding of unfitness one year if
provided with a course of | 3 | | treatment. For a defendant charged with a felony, the period of | 4 | | time shall be one year. For a defendant charged with a | 5 | | misdemeanor, the period of time shall be no longer than the | 6 | | maximum term of imprisonment for the most serious offense. If | 7 | | the person or persons preparing
the report are unable to form | 8 | | such an opinion, the report shall state the
reasons therefor. | 9 | | The report may include a general description of the
type of | 10 | | treatment needed and of the least physically restrictive form | 11 | | of
treatment therapeutically appropriate.
| 12 | | (c) The report shall indicate what information, if any, | 13 | | contained therein
may be harmful to the mental condition of the | 14 | | defendant if made known to him.
| 15 | | (d) In addition to the report, a person retained or | 16 | | appointed by the State or the defense to conduct an examination | 17 | | shall, upon written request, make his or her notes, other | 18 | | evaluations reviewed or relied upon by the testifying witness, | 19 | | and any videotaped interviews available to another examiner of | 20 | | the defendant. All forensic interviews conducted by a person | 21 | | retained or appointed by the State or the defense shall be | 22 | | videotaped unless doing so would be impractical. In the event | 23 | | that the interview is not videotaped, the examiner may still | 24 | | testify as to the person's fitness and the court may only | 25 | | consider the lack of compliance in according the weight and not | 26 | | the admissibility of the expert testimony. An examiner may use |
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| 1 | | these materials as part of his or her diagnosis and explanation | 2 | | but shall not otherwise disclose the contents, including at a | 3 | | hearing before the court, except as otherwise provided in | 4 | | Section 104-14 of this Code. | 5 | | (Source: P.A. 98-1025, eff. 1-1-15 .)
| 6 | | Section 10. The Unified Code of Corrections is amended by | 7 | | changing Section 5-2-4 as follows:
| 8 | | (730 ILCS 5/5-2-4) (from Ch. 38, par. 1005-2-4)
| 9 | | Sec. 5-2-4. Proceedings after Acquittal by Reason of | 10 | | Insanity.
| 11 | | (a) After a finding or verdict of not guilty by reason of | 12 | | insanity
under Sections 104-25, 115-3 or 115-4 of the Code of | 13 | | Criminal Procedure
of 1963, the defendant shall be ordered to | 14 | | the Department of Human Services for
an evaluation as to
| 15 | | whether he is in need of mental health
services. The order
| 16 | | shall specify whether the evaluation shall be conducted on an | 17 | | inpatient or
outpatient basis. If the evaluation is to be | 18 | | conducted on an inpatient
basis, the defendant shall be placed | 19 | | in a secure setting. With the court order for evaluation shall | 20 | | be sent a copy of the arrest report, criminal charges, arrest | 21 | | record, jail record, any report prepared under Section 115-6 of | 22 | | the Code of Criminal Procedure of 1963, and any victim impact | 23 | | statement prepared under Section 6 of the Rights of Crime | 24 | | Victims and Witnesses Act.
After the evaluation and during the |
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| 1 | | period of time required to
determine the appropriate placement, | 2 | | the defendant shall
remain in jail.
Individualized placement | 3 | | evaluations by the Department of Human Services determine the | 4 | | most appropriate setting for forensic treatment based upon a | 5 | | number of factors including mental health diagnosis, proximity | 6 | | to surviving victims, security need, age, gender, and proximity | 7 | | to family. Upon completion of the placement process the sheriff | 8 | | shall be notified and
shall transport the defendant to the | 9 | | designated facility.
| 10 | | The Department shall provide the Court with a report of its | 11 | | evaluation
within 30 days of the date of this order. The Court | 12 | | shall hold a hearing
as provided under the Mental Health and | 13 | | Developmental Disabilities Code to
determine if the individual | 14 | | is:
(a)
in need of mental health services on an inpatient | 15 | | basis; (b) in
need of
mental health services on an outpatient | 16 | | basis; (c) a person not in
need of
mental health services. The | 17 | | Court shall enter its findings.
| 18 | | If the defendant is found to be in
need
of mental health | 19 | | services on an inpatient care basis, the Court shall order the
| 20 | | defendant to the Department of Human Services.
The defendant | 21 | | shall be placed in a secure setting. Such
defendants placed in | 22 | | a secure setting shall not be permitted outside the
facility's | 23 | | housing unit unless escorted or accompanied by personnel of the
| 24 | | Department of Human Services or with the prior approval of the | 25 | | Court for
unsupervised
on-grounds privileges as provided
| 26 | | herein.
Any defendant placed in a secure setting pursuant to |
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| 1 | | this Section,
transported to court hearings or other necessary | 2 | | appointments
off facility grounds
by personnel of
the | 3 | | Department of Human Services, shall be
placed in security | 4 | | devices
or otherwise secured during the period of | 5 | | transportation to assure
secure transport of the defendant and | 6 | | the safety of Department
of Human Services personnel and | 7 | | others. These security measures
shall not constitute restraint | 8 | | as defined in the Mental Health and
Developmental Disabilities | 9 | | Code.
If the defendant is found to be in need of mental health | 10 | | services,
but not on an inpatient care basis, the Court shall | 11 | | conditionally release
the defendant, under such conditions as | 12 | | set forth in this Section as will
reasonably assure the | 13 | | defendant's satisfactory progress and participation
in | 14 | | treatment or
rehabilitation and the safety of the defendant and | 15 | | others. If the
Court
finds the person not in need of mental | 16 | | health services, then the Court
shall order the defendant | 17 | | discharged from custody.
| 18 | | (a-1) Definitions. For the purposes of this Section:
| 19 | | (A) (Blank).
| 20 | | (B) "In need of mental health services on an inpatient | 21 | | basis" means: a
defendant who has been found not guilty by | 22 | | reason of insanity but who due to mental illness is
| 23 | | reasonably expected to inflict
serious physical harm upon | 24 | | himself or another and who would benefit from
inpatient | 25 | | care or is in need of inpatient care.
| 26 | | (C) "In need of mental health services on an outpatient |
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| 1 | | basis" means:
a defendant who has been found not guilty by | 2 | | reason of insanity who is not in need of mental health | 3 | | services on
an inpatient basis, but is in need of | 4 | | outpatient care, drug and/or alcohol
rehabilitation | 5 | | programs, community adjustment programs, individual, | 6 | | group,
or family therapy, or chemotherapy.
| 7 | | (D) "Conditional Release" means: the release from | 8 | | either the custody
of the Department of Human Services
or | 9 | | the custody of the Court of a person who has been found not | 10 | | guilty by
reason of insanity under such conditions as the | 11 | | Court may impose which
reasonably assure the defendant's | 12 | | satisfactory progress in
treatment or habilitation and the | 13 | | safety of the defendant and others. The
Court shall | 14 | | consider such terms and conditions which may include, but | 15 | | need
not be limited to, outpatient care, alcoholic and drug | 16 | | rehabilitation programs,
community adjustment programs, | 17 | | individual, group, family, and chemotherapy,
random | 18 | | testing to ensure the defendant's timely and continuous | 19 | | taking of any
medicines prescribed
to control or manage his | 20 | | or her conduct or mental state, and
periodic checks with | 21 | | the legal authorities and/or the Department of Human
| 22 | | Services.
The Court may order as a condition of conditional | 23 | | release that the
defendant not contact the victim of the | 24 | | offense that
resulted in the finding or
verdict of not | 25 | | guilty by reason of insanity or any other person. The Court | 26 | | may
order the
Department of
Human Services to provide care |
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| 1 | | to any
person conditionally released under this Section. | 2 | | The Department may contract
with any public or private | 3 | | agency in order to discharge any responsibilities
imposed | 4 | | under this Section. The Department shall monitor the | 5 | | provision of
services to persons conditionally released | 6 | | under this Section and provide
periodic reports to the | 7 | | Court concerning the services and the condition of the
| 8 | | defendant.
Whenever a person is conditionally released | 9 | | pursuant to this Section, the
State's Attorney for the | 10 | | county in which the hearing is held shall designate in
| 11 | | writing the name, telephone number, and address of a person | 12 | | employed by him or
her who
shall be notified in the event | 13 | | that either the reporting agency or the
Department decides | 14 | | that the conditional release of the defendant should be
| 15 | | revoked or modified pursuant to subsection (i) of this | 16 | | Section. Such
conditional release shall be for
a period of | 17 | | five years. However, the defendant, the person or
facility
| 18 | | rendering the treatment, therapy, program or outpatient | 19 | | care, the
Department, or the
State's Attorney may petition | 20 | | the Court for an extension of
the conditional
release | 21 | | period for an additional 5 years. Upon receipt of such a
| 22 | | petition, the Court shall hold a hearing consistent with | 23 | | the provisions of
paragraph (a), this paragraph (a-1),
and | 24 | | paragraph (f) of this Section, shall determine
whether the | 25 | | defendant should continue to be subject to the terms of
| 26 | | conditional release, and shall enter an order either |
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| 1 | | extending the
defendant's period of conditional release | 2 | | for an additional
5
year period or discharging the | 3 | | defendant.
Additional 5-year periods of conditional | 4 | | release may be ordered following a
hearing as provided in | 5 | | this Section. However,
in no event shall the defendant's
| 6 | | period of conditional release continue beyond the maximum | 7 | | period of
commitment ordered by the Court pursuant to | 8 | | paragraph (b) of this Section. These provisions for
| 9 | | extension of conditional release shall only apply to | 10 | | defendants
conditionally released on or after August 8, | 11 | | 2003. However the extension
provisions of Public Act | 12 | | 83-1449 apply only to defendants charged
with a forcible | 13 | | felony.
| 14 | | (E) "Facility director" means the chief officer of a | 15 | | mental health or
developmental disabilities facility or | 16 | | his or her designee or the supervisor of
a program of | 17 | | treatment or habilitation or his or her designee. | 18 | | "Designee" may
include a physician, clinical psychologist, | 19 | | social worker, nurse, or clinical
professional counselor.
| 20 | | (b) If the Court finds the defendant in need of mental | 21 | | health services on an
inpatient basis, the
admission, | 22 | | detention, care, treatment or habilitation, treatment plans,
| 23 | | review proceedings, including review of treatment and | 24 | | treatment plans, and
discharge of the defendant after such | 25 | | order shall be under the
Mental Health and Developmental | 26 | | Disabilities Code, except that the
initial order for admission |
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| 1 | | of a defendant acquitted of a felony by
reason of insanity | 2 | | shall be for an indefinite period of time. Such period
of | 3 | | commitment shall not exceed the maximum
length of time that the | 4 | | defendant would have been required to serve,
less credit for | 5 | | good behavior as provided in Section 5-4-1 of the Unified
Code | 6 | | of Corrections, before becoming eligible for
release had
he | 7 | | been convicted of and received the maximum sentence for the | 8 | | most
serious crime for which he has been acquitted by reason of | 9 | | insanity. The
Court shall determine the maximum period of | 10 | | commitment by an appropriate
order. During this period of time, | 11 | | the defendant shall not be permitted
to be in the community in | 12 | | any manner, including but not limited to off-grounds
| 13 | | privileges, with or without escort by personnel of the | 14 | | Department of Human
Services, unsupervised on-grounds | 15 | | privileges,
discharge or conditional or temporary release, | 16 | | except by a plan as provided in
this Section. In no event shall | 17 | | a defendant's continued unauthorized
absence be a basis for | 18 | | discharge. Not more than 30 days after admission
and every 90 | 19 | | 60 days thereafter so long as the initial order
remains in | 20 | | effect, the facility director shall file a treatment plan | 21 | | report
in writing with the court
and forward a copy of the | 22 | | treatment plan report to the clerk of the
court, the State's | 23 | | Attorney, and the defendant's attorney, if the defendant is
| 24 | | represented by counsel,
or to a person authorized by
the | 25 | | defendant under the
Mental Health and Developmental | 26 | | Disabilities Confidentiality Act to be sent a
copy of the |
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| 1 | | report. The report shall include an opinion
as to whether the
| 2 | | defendant is currently in need of mental
health services on an | 3 | | inpatient basis or in need of mental health services
on
an | 4 | | outpatient basis. The report shall also summarize the basis for | 5 | | those
findings and provide a current summary of the following | 6 | | items from the
treatment plan: (1) an assessment of the | 7 | | defendant's treatment needs, (2) a
description of the services | 8 | | recommended for treatment, (3) the goals of each
type of | 9 | | element of service, (4) an anticipated timetable for the | 10 | | accomplishment
of the goals, and (5) a designation of the | 11 | | qualified professional responsible
for the implementation of | 12 | | the plan.
The report may also include unsupervised on-grounds
| 13 | | privileges, off-grounds privileges (with or without escort by | 14 | | personnel of the
Department of Human Services), home visits and
| 15 | | participation in work
programs, but only where such privileges | 16 | | have been approved by specific court
order, which order may | 17 | | include such conditions on the defendant as the
Court may deem | 18 | | appropriate and necessary to reasonably assure the defendant's
| 19 | | satisfactory progress in treatment and the safety of the | 20 | | defendant and others.
| 21 | | (c) Every defendant acquitted of a felony by reason of | 22 | | insanity and
subsequently found to be in need of
mental health | 23 | | services shall be represented by counsel in all proceedings | 24 | | under
this Section and under the Mental Health and | 25 | | Developmental Disabilities Code.
| 26 | | (1) The Court shall appoint as counsel the public |
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| 1 | | defender or an
attorney licensed by this State.
| 2 | | (2) Upon filing with the Court of a verified statement | 3 | | of legal
services rendered by the private attorney | 4 | | appointed pursuant to
paragraph (1) of this subsection, the | 5 | | Court shall determine a reasonable
fee for such services. | 6 | | If the defendant is unable to pay the fee, the
Court shall | 7 | | enter an order upon the State to pay the entire fee or such
| 8 | | amount as the defendant is unable to pay from funds | 9 | | appropriated by the
General Assembly for that purpose.
| 10 | | (d) When the facility director determines that:
| 11 | | (1) the defendant is no longer
in need of mental health | 12 | | services on an inpatient basis; and
| 13 | | (2) the defendant may be conditionally released | 14 | | because he
or she is still in need of mental health | 15 | | services or that the defendant
may be discharged as not in | 16 | | need of any mental health services; or
| 17 | | (3) (blank);
| 18 | | the facility director shall give written notice
to the Court, | 19 | | State's Attorney and defense attorney.
Such notice shall set | 20 | | forth in detail the basis for the recommendation of
the | 21 | | facility director, and specify clearly the recommendations, if | 22 | | any,
of the facility director, concerning conditional release.
| 23 | | Any recommendation for conditional release shall include an | 24 | | evaluation of
the defendant's need for psychotropic | 25 | | medication, what provisions should be
made, if any, to ensure | 26 | | that the defendant will continue to receive
psychotropic |
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| 1 | | medication following discharge, and what provisions should be | 2 | | made
to assure the safety of the defendant and others in the | 3 | | event the defendant is
no longer receiving psychotropic | 4 | | medication.
Within 30 days of
the notification by the facility | 5 | | director, the Court shall set a hearing and
make a finding as | 6 | | to whether the defendant is:
| 7 | | (i) (blank); or
| 8 | | (ii) in need of mental health services in the form of | 9 | | inpatient care; or
| 10 | | (iii) in need of mental health services but not subject | 11 | | to inpatient care;
or
| 12 | | (iv) no longer in need of mental health services; or
| 13 | | (v) (blank).
| 14 | | Upon finding by the Court, the Court shall enter its | 15 | | findings and such
appropriate order as provided in subsections | 16 | | (a) and (a-1) of this Section.
| 17 | | (e) A defendant admitted pursuant to this Section, or any | 18 | | person on
his behalf, may file a petition for treatment plan | 19 | | review
or discharge or conditional release under the
standards | 20 | | of this Section in the Court which rendered the verdict. Upon
| 21 | | receipt of a petition for treatment plan review or discharge or | 22 | | conditional release, the Court shall set a hearing to
be held | 23 | | within 120 days. Thereafter, no new petition
may be filed for | 24 | | 180 days
without leave of the Court.
| 25 | | (f) The Court shall direct that notice of the time and | 26 | | place of the
hearing be served upon the defendant, the facility |
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| 1 | | director, the State's
Attorney, and the defendant's attorney. | 2 | | If requested by either the State or the
defense or if the Court | 3 | | feels it is appropriate, an impartial examination
of the | 4 | | defendant by a psychiatrist or clinical psychologist as defined | 5 | | in
Section 1-103 of the Mental Health and Developmental | 6 | | Disabilities Code who
is not in the employ of the Department of | 7 | | Human Services shall be ordered, and
the report considered at
| 8 | | the time of the hearing.
| 9 | | (g) The findings of the Court shall be established by clear | 10 | | and
convincing evidence. The burden of proof and the burden of | 11 | | going forth
with the evidence rest with the defendant or any | 12 | | person on the defendant's
behalf when a hearing is held to | 13 | | review
a petition filed by or on
behalf of the defendant. The | 14 | | evidence shall be presented in open
Court
with the right of | 15 | | confrontation and cross-examination.
Such evidence may | 16 | | include, but is not limited to:
| 17 | | (1) whether the defendant appreciates the harm caused | 18 | | by the defendant to
others and the community by his or her | 19 | | prior
conduct
that resulted in the finding of not guilty by | 20 | | reason of insanity;
| 21 | | (2) Whether the person appreciates the criminality of | 22 | | conduct similar to
the conduct for which he or she was | 23 | | originally charged in this matter;
| 24 | | (3) the current state of
the defendant's illness;
| 25 | | (4) what, if any, medications the defendant is taking | 26 | | to
control his or her mental illness;
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| 1 | | (5) what, if any, adverse physical side effects
the | 2 | | medication has on the defendant;
| 3 | | (6) the length of time it would take for the | 4 | | defendant's mental health to
deteriorate
if
the
defendant | 5 | | stopped taking prescribed medication;
| 6 | | (7) the defendant's history or potential for alcohol | 7 | | and drug abuse;
| 8 | | (8) the defendant's past criminal history;
| 9 | | (9) any specialized physical or medical needs of the | 10 | | defendant;
| 11 | | (10) any family participation or involvement expected | 12 | | upon release and
what is the willingness and ability of the | 13 | | family to participate or be
involved;
| 14 | | (11) the defendant's potential to be a danger to | 15 | | himself, herself, or
others; and
| 16 | | (12) any other factor or factors the Court deems | 17 | | appropriate.
| 18 | | (h) Before the court orders that the defendant be | 19 | | discharged or
conditionally released, it shall order the | 20 | | facility director to establish a
discharge plan that includes a | 21 | | plan for the defendant's shelter, support, and
medication. If | 22 | | appropriate, the court shall order that the facility director
| 23 | | establish a program to train the defendant in self-medication | 24 | | under standards
established by the Department of Human | 25 | | Services.
If the Court finds, consistent with the provisions of | 26 | | this Section,
that the defendant is no longer in need of mental
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| 1 | | health services it shall order the facility director to | 2 | | discharge the
defendant. If the Court finds, consistent with | 3 | | the provisions of this
Section, that the defendant is in need | 4 | | of mental
health services, and no longer in need of inpatient | 5 | | care, it shall order
the facility director to release the | 6 | | defendant under such conditions as the
Court deems appropriate | 7 | | and as provided by this Section. Such conditional
release shall | 8 | | be imposed for a period of 5 years as provided in
paragraph
(D) | 9 | | of subsection (a-1) and shall be
subject
to later modification | 10 | | by the Court as provided by this Section. If the
Court finds | 11 | | consistent with the provisions in this Section that the
| 12 | | defendant is in
need of mental health services on an inpatient | 13 | | basis, it shall order the
facility director not to discharge or | 14 | | release the defendant in accordance
with paragraph (b) of this | 15 | | Section.
| 16 | | (i) If within the period of the defendant's conditional | 17 | | release
the State's Attorney determines that the defendant has | 18 | | not fulfilled the
conditions of his or her release, the State's | 19 | | Attorney may petition the
Court
to
revoke or modify the | 20 | | conditional release of the defendant. Upon the filing of
such | 21 | | petition the defendant may be remanded to the custody of the | 22 | | Department,
or to any other mental health facility designated | 23 | | by the Department, pending
the resolution of the petition. | 24 | | Nothing in this Section shall prevent the
emergency admission | 25 | | of a defendant pursuant to Article VI of Chapter III of the
| 26 | | Mental Health
and Developmental Disabilities Code or the |
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| 1 | | voluntary admission of the defendant
pursuant to Article IV of | 2 | | Chapter III of the Mental Health and Developmental
Disabilities
| 3 | | Code. If
the Court determines, after hearing evidence, that the | 4 | | defendant has
not fulfilled the conditions of release, the | 5 | | Court shall order a hearing
to be held consistent with the | 6 | | provisions of paragraph (f) and (g) of this
Section. At such | 7 | | hearing, if the Court finds that the defendant is in need of | 8 | | mental health services on an inpatient
basis, it shall enter an | 9 | | order remanding him or her to the Department of
Human Services | 10 | | or other
facility. If the defendant is remanded to the | 11 | | Department of Human Services, he
or she shall be placed in
a | 12 | | secure setting unless the Court
determines that there are | 13 | | compelling reasons that such placement is not
necessary. If the
| 14 | | Court finds that the defendant continues to be in need of | 15 | | mental health
services but not on an inpatient basis, it may | 16 | | modify the conditions of
the original release in order to | 17 | | reasonably assure the defendant's satisfactory
progress in | 18 | | treatment and his or her safety and the safety of others in
| 19 | | accordance with the standards established in paragraph (D) of | 20 | | subsection (a-1). Nothing in
this Section shall limit a Court's | 21 | | contempt powers or any other powers of a
Court.
| 22 | | (j) An order of admission under this Section does not | 23 | | affect the
remedy of habeas corpus.
| 24 | | (k) In the event of a conflict between this Section and the | 25 | | Mental Health
and Developmental Disabilities Code or the Mental | 26 | | Health and Developmental
Disabilities Confidentiality Act, the |
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| 1 | | provisions of this Section shall govern.
| 2 | | (l) This amendatory Act shall apply to all persons who have | 3 | | been found
not guilty by reason of insanity and who are | 4 | | presently committed to the
Department of Mental Health and | 5 | | Developmental Disabilities (now the
Department of Human | 6 | | Services).
| 7 | | (m)
The Clerk of the Court shall transmit a certified copy | 8 | | of the order of
discharge or conditional release to the | 9 | | Department of Human Services, to the sheriff of the county from | 10 | | which the defendant was admitted, to the Illinois Department of | 11 | | State Police, to
the proper law enforcement agency for the | 12 | | municipality
where the offense took
place, and to the sheriff | 13 | | of the county into which the defendant is
conditionally | 14 | | discharged. The Illinois Department of State Police shall
| 15 | | maintain a
centralized record of discharged or conditionally | 16 | | released defendants while
they are under court supervision for | 17 | | access and use of appropriate law
enforcement agencies.
| 18 | | (Source: P.A. 98-1025, eff. 8-22-14.)
| 19 | | Section 99. Effective date. This Act takes effect January | 20 | | 1, 2018.
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