Illinois General Assembly - Full Text of HB1294
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Full Text of HB1294  103rd General Assembly


Rep. Lakesia Collins

Filed: 3/6/2023





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2    AMENDMENT NO. ______. Amend House Bill 1294 by replacing
3everything after the enacting clause with the following:
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.



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1This Part recognizes that the ability to understand charges
2and to participate meaningfully in one's own defense evolve
3gradually throughout childhood and early adulthood and that
4each child deserves developmentally appropriate responses that
5reflect the best understanding of the child's current
7    (705 ILCS 405/5-5A-105 new)
8    Sec. 5-5A-105. Definitions. As used in this Part:
9    "Child" means a person under the age of 21, regardless of
10whether the person is subject to this Act or prosecuted under
11the criminal laws of this State.
12    "Child traumatic stress" means exposure to one or more
13traumatic events over the course of a child's life that result
14in that child developing reactions that persist and that
15interfere with the child's functional, social, adaptive, or
16intellectual ability.
17    "Chronological immaturity" means a lack of functional,
18social, adaptive, or intellectual ability due to chronological
20    "Developmental disability" means a disability that is
21attributable to an intellectual disability, cerebral palsy,
22epilepsy, autism, a learning disability, or any other
23condition that results in impaired functional, social,
24adaptive, or intellectual ability.
25    "Mental illness" means a mental or emotional disorder that



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1substantially impairs a person's thought, perception of
2reality, emotional process, judgment, behavior, or ability to
3cope with the ordinary demands of life.
4    "Relative immaturity" means a lack of functional, social,
5adaptive, or intellectual ability when a child is compared to
6other children of the same chronological age.
7    "Substance use disorder" has the meaning given to that
8term in Section 1-10 of the Substance Use Disorder Act.
9    (705 ILCS 405/5-5A-110 new)
10    Sec. 5-5A-110. Unfitness standard. Unfitness may result
11from the presence of any condition or confluence of
12conditions, including, but not limited to, mental illness,
13substance use disorder, developmental disability,
14chronological immaturity, relative immaturity, or child
15traumatic stress. Other than chronological immaturity, any of
16these conditions could look differently in similarly aged
17children. A diagnosis is not required for a finding of
18unfitness. A child is unfit when the child either:
19    (1) lacks sufficient present ability to consult with the
20child's attorney with a reasonable degree of rational
21understanding, as evidenced by lacking the ability to disclose
22to the attorney facts pertinent to the proceedings at issue
23and to assist in the child's defense; or
24    (2) lacks a rational or a factual understanding of the
25proceedings against the child, as evidenced by any one or more



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1of the following:
2        (A) a lack of ability to identify who the participants
3    are, including the judge, child's attorney, State's
4    Attorney, or qualified expert;
5        (B) a lack of ability to differentiate the multiple
6    roles a single participant could serve in different
7    proceedings the child is involved in;
8        (C) a lack of understanding of the allegations in the
9    petition for adjudication of delinquency;
10        (D) a lack of understanding of the range of possible
11    dispositions that may be imposed in the proceedings;
12        (E) a lack of ability to use the factual
13    understandings and factors in (A) through (D) of this
14    paragraph to make rational decisions; or
15        (F) a lack of any other factors that a qualified
16    expert deems relevant.
17    (705 ILCS 405/5-5A-115 new)
18    Sec. 5-5A-115. Raising the issue of unfitness.
19    (a) The issue of the child's fitness to stand trial, to
20plead, or to be sentenced may be raised by the child's
21attorney, the State, or the court at any time before a plea is
22entered or before, during, or after trial.
23    (b) When the issue of the child's fitness is raised, the
24court must determine whether there is a bona fide doubt that
25the child is fit. The court shall find a bona fide doubt when



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1evidence is presented or proffered that suggests that the
2child could be unfit. If the court finds that there is a bona
3fide doubt, the court shall order a fitness evaluation under
4Section 5-5A-125 before proceeding further. Nothing in this
5Section shall operate to extinguish any rights of a child
6established by attorney-client privilege.
7    (c) When a child is being prosecuted under the criminal
8laws of this State under Section 5-130 or 5-805, the criminal
9court shall apply the fitness standards in this Part. If the
10issue of the child's fitness is raised prior to the resolution
11of a transfer proceeding under Section 5-805, the juvenile
12court shall apply the fitness standards as set forth in this
14    (705 ILCS 405/5-5A-120 new)
15    Sec. 5-5A-120. Burdens and presumptions. In making
16determinations concerning a child's fitness, the following
17burdens of proof and presumptions shall apply:
18        (1) when the court finds a bona fide doubt as to the
19    fitness of a child under Section 5-5A-115, the State bears
20    the burden of proving that the child is fit by clear and
21    convincing evidence; and
22        (2) a child who is receiving medication shall not be
23    presumed to be fit or unfit to stand trial solely by virtue
24    of the receipt of that medication.



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1    (705 ILCS 405/5-5A-125 new)
2    Sec. 5-5A-125. Fitness evaluation. When the court orders a
3fitness evaluation under subsection (b) of Section 5-5A-115,
4the court must appoint one or more qualified experts under
5Section 5-5A-135. Each expert must evaluate whether the child
6is fit and must submit a report of the expert's findings to the
7court under Section 5-5A-160. No expert employed or contracted
8by the Department of Human Services shall be ordered to
9perform, in the expert's official capacity, an initial fitness
10examination under this Section.
11    (705 ILCS 405/5-5A-130 new)
12    Sec. 5-5A-130. Location of evaluation. A fitness
13evaluation ordered under subsection (b) of Section 5-5A-115
14must be conducted in the least restrictive environment for the
15child. The evaluation must be conducted in person whenever
16possible. Video technology for a remote evaluation may be used
17only as a last resort. If video technology is used, it must be
18a secure platform. No facility of the Department of Human
19Services shall be utilized for this purpose.
20    (705 ILCS 405/5-5A-135 new)
21    Sec. 5-5A-135. Qualification of experts. An expert
22evaluating the child under Section 5-5A-125 must either be a
23licensed clinical psychologist or psychiatrist with training
24and experience in forensics, child development, and child



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2    (705 ILCS 405/5-5A-140 new)
3    Sec. 5-5A-140. Timeline for evaluation. The fitness
4evaluation ordered under subsection (b) of Section 5-5A-115
5and report written under Section 5-5A-160 must be completed
6within 30 days of a court order entered pursuant to subsection
7(b) of Section 5-5A-115. The time for completion of the
8fitness evaluation may be extended an additional 30 days for
9good cause if the child is not in custody.
10    (705 ILCS 405/5-5A-145 new)
11    Sec. 5-5A-145. Counsel at evaluation. The child's counsel
12must be allowed to be present at the evaluation conducted, if
13requested by the child's counsel, under Section 5-5A-125.
14    (705 ILCS 405/5-5A-150 new)
15    Sec. 5-5A-150. Statements made during evaluation. No
16statement made by the child during the evaluation conducted
17under Section 5-5A-125 shall be used against the child in the
18current court proceedings or in any future proceedings. No
19statement made by the child relating to the alleged offense or
20other offenses shall be included in the report required under
21Section 5-5A-160. The court must advise the child before the
22evaluation takes place that no statement made during the
23evaluation shall be used against the child.



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1    (705 ILCS 405/5-5A-155 new)
2    Sec. 5-5A-155. Recordings of evaluations and privacy.
3    (a) An evaluation of the child conducted under Section
45-5A-125 shall be video recorded.
5    (b) The video recording of a fitness evaluation is
6confidential and may be viewed only by the court, the expert
7conducting the evaluation defined in Section 5-5A-125, the
8child's attorney, the State, and any other expert in the
9proceedings deemed necessary by the court and under Section
11    (705 ILCS 405/5-5A-160 new)
12    Sec. 5-5A-160. Contents of evaluation report.
13    (a) When an evaluation is conducted under Section
145-5A-125, the appointed expert must submit a written report of
15the findings to the court. The evaluation report must detail
16the methods and tools used during the evaluation and be made in
18    (b) The evaluation report must contain:
19        (1) An assessment of any mental illness, substance use
20    disorder, or developmental disability of the child,
21    including:
22            (A) the results of a mental status exam;
23            (B) a description of the history and current
24        status of any symptoms of any mental illness or



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1        developmental disability, or both (a diagnosis is not
2        required);
3        (2) an assessment of the child's chronological and
4    relative immaturity;
5        (3) an assessment of any child traumatic stress,
6    including a description of the child's history of exposure
7    to traumatic events;
8        (4) an assessment of any other condition of the child
9    that could impact the child's functional abilities related
10    to fitness to stand trial;
11        (5) an assessment of the child's rational and factual
12    understandings related to fitness to stand trial, the
13    unfitness standard in Section 5-5A-110, and the
14    relationship of these abilities to any conditions of the
15    child as assessed in paragraphs (1) through (4);
16        (6) whether the expert, based on the evaluation and in
17    the expert's professional judgment, believes the child is
18    fit;
19        (7) if the expert believes that the child is unfit,
20    whether the expert believes there is a substantial
21    probability that the child will attain fitness within the
22    statutory period to attain fitness;
23        (8) recommendations, if the expert believes the child
24    is unfit, including:
25            (A) services that would help the child attain
26        fitness;



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1            (B) placement for services to attain fitness; and
2            (C) risk assessments needed prior to placement;
3        and
4        (9) opinions on:
5            (A) the likelihood of the success of the services
6        recommended; and
7            (B) the length of time anticipated to attain
8        fitness.
9    (705 ILCS 405/5-5A-165 new)
10    Sec. 5-5A-165. Hearing to determine fitness.
11    (a) When a bona fide doubt of fitness has been raised, the
12court shall conduct a hearing to determine the issue of the
13child's fitness within 30 days of receipt of the evaluation
14report described in Section 5-5A-160, unless the timeline is
15waived by the child's counsel.
16    (b) The child has the right to be present at every hearing
17on the issue of the child's fitness.
18    (c) On the basis of the evidence before it, the court must
19determine whether the child is unfit to stand trial pursuant
20to Section 5-5A-110. If the court finds that the child is
21unfit, the court shall determine:
22        (1) whether in-court assistance under Section 5-5A-190
23    would render the child fit; and
24        (2) whether there is a substantial probability that
25    the child, if provided with services to attain fitness



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1    under Section 5-5A-170, will attain fitness within the
2    period to attain fitness set forth in Section 5-5A-175.
3    (d) If the court finds that the child is unfit and there is
4not a substantial probability the child will attain fitness
5within the statutory period as set forth in Section 5-5A-175,
6the court shall proceed under Section 5-5A-210.
7    (e) If the court finds the child is unfit but that there is
8a substantial probability that the child will become fit
9within the period to attain fitness set forth in Section
105-5A-175, or if the court is unable to determine whether a
11substantial probability exists, the court shall order the
12child to receive services to attain fitness at a placement
13under Section 5-5A-170. If the court is unable to determine
14whether a substantial probability exists and orders the child
15to receive services to attain fitness, the court shall conduct
16a hearing as soon as possible following the receipt of the
17report filed under Section 5-5A-180 to determine whether there
18is a substantial probability that the child will attain
19fitness within the statutory period.
20    (f) If the court finds that the child is unfit to stand
21trial, it shall proceed under this Act. If the court finds that
22the child could be rendered fit with in-court assistance, the
23court shall order in-court assistance pursuant to Section
25    (g) An order finding the child unfit to stand trial is a
26final order for purposes of appeal by the State or the child.



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1    (705 ILCS 405/5-5A-170 new)
2    Sec. 5-5A-170. Services to attain fitness.
3    (a) When the court orders services to attain fitness under
4Section 5-5A-165, the court shall determine if the child will
5receive services on an inpatient or outpatient basis. If
6inpatient, the child shall be placed at a facility approved by
7the Department of Human Services to provide residential,
8restoration care and treatment. If the court orders the child
9to receive services on an outpatient basis, such services
10shall be rendered in the community at a program approved by the
11Department of Human Services. Court-ordered services and
12placements shall be consistent with the recommendations in the
13evaluation report. All services shall be trauma-informed,
14developmentally appropriate, and provided in the least
15restrictive environment considering the needs and best
16interests of the child. A placement may be ordered on an
17inpatient basis only when the child exhibits needs warranting
18a hospital level of care.
19    (b) Within 5 days of a court order for services to attain
20fitness entered under Section 5-5A-165, the clerk of the
21circuit court shall transmit, to the Department of Human
22Services, and any other agency or institution providing
23services to attain fitness to the child, the following:
24        (1) a certified copy of the order to receive services
25    and the complete copy of any report on the child's fitness



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1    prepared under this Part;
2        (2) the county and municipality in which the alleged
3    offense occurred;
4        (3) the county and municipality in which the arrest
5    took place;
6        (4) a copy of the arrest report, charges, and arrest
7    record; and
8        (5) all additional matters that the court directs the
9    clerk to transmit.
10    (705 ILCS 405/5-5A-175 new)
11    Sec. 5-5A-175. Period to attain fitness. For a child
12charged with a felony, the maximum total time a court may order
13a child to receive services to attain fitness shall be one
14year. For a child charged with a misdemeanor, the maximum
15total period shall be no longer than the length of the sentence
16that could be imposed if the child were adjudicated delinquent
17of the misdemeanor offense for which the child was charged, or
18one year whichever is shorter. The period to attain fitness
19shall begin with the court's first finding of unfitness during
20a fitness hearing under Section 5-5A-165.
21    (705 ILCS 405/5-5A-180 new)
22    Sec. 5-5A-180. Initial and subsequent progress reports.
23    (a) Within 30 days of entry of an order to receive services
24to attain fitness under Sections 5-5A-170 and 5-5A-175, the



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



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1    substantial probability that the child will attain
2    fitness, with services, within the period to attain
3    fitness under Section 5-5A-175; or
4        (3) if the supervisor believes a change in services or
5    placement is necessary.
6    (d) The initial and subsequent progress reports shall
8        (1) the clinical findings of the supervisor and the
9    facts upon which the findings are based;
10        (2) the opinion of the supervisor as to whether the
11    child has attained fitness and as to whether the child is
12    making progress, with services, toward attaining fitness
13    within the period set in Section 5-5A-175;
14        (3) whether the current services to attain fitness and
15    placement continue to be in the least restrictive
16    environment necessary, whether a different level of care
17    is needed, and the basis for that recommendation; and
18        (4) any other changes in recommendations of services
19    to attain fitness.
20    (e) If the supervisor of the child's services determines,
21under paragraph (3) of subsection (d) of this Section, that
22the child is not in the least restrictive environment
23necessary to attain fitness, upon receipt of the progress
24report, the court shall ensure that the child is immediately
25moved to the least restrictive environment necessary.



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1    (705 ILCS 405/5-5A-185 new)
2    Sec. 5-5A-185. Periodic hearings. Upon entry or
3continuation of any order to receive services to attain
4fitness, the court shall set a date for hearing to reexamine
5the issue of the child's fitness not more than 90 days
6thereafter. In addition, whenever the court receives a report
7from the supervisor of the child's services under subsection
8(c) of Section 5-5A-180, the court shall set the matter for a
9hearing within 14 days unless good cause is demonstrated why
10the hearing cannot be held. On the date set, the court shall
11conduct a hearing to redetermine the child's fitness under
12Section 5-5A-165.
13    (705 ILCS 405/5-5A-190 new)
14    Sec. 5-5A-190. In-court assistance to render a child fit.
15    (a) If the court determines that the child could be
16rendered fit with in-court assistance under Section 5-5A-165,
17the court shall order in-court assistance under subsection
18(b). A child found unfit because of chronological immaturity
19cannot be rendered fit with in-court assistance. A child found
20unfit because of relative immaturity or child traumatic stress
21cannot be rendered fit solely with in-court assistance.
22    (b) In-court assistance may include, but is not limited
24        (1) appointment of a qualified translator who shall
25    simultaneously translate all court proceedings into a



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1    language understood by the child; and
2        (2) appointment of an expert qualified to assist a
3    child who, because of a disability, is unable to
4    communicate with the child's attorney.
5    (c) If in-court assistance is provided, the case may
6proceed to trial only if the court determines that in-court
7assistance renders the child fit. In such cases, the court
8shall state for the record the following:
9        (1) the qualifications and experience of the experts
10    or other persons appointed to provide in-court assistance
11    to the child;
12        (2) the court's reasons for selecting or appointing
13    the particular experts or other persons to provide the
14    in-court assistance to the child;
15        (3) how the appointment of the particular expert or
16    other persons will serve the goal of rendering the child
17    fit, based on the appointee's qualifications and
18    experience, and the lack of functional, social, adaptive,
19    or intellectual abilities of the child; and
20        (4) any other factors considered by the court in
21    appointing the experts or other persons.
22    (d) A child adjudicated delinquent following a trial
23conducted with in-court assistance provided under this Section
24shall not be sentenced before a written report of social
25investigation is presented to and considered by the court. The
26written report of social investigation shall be prepared under



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1Section 5-701 and shall include a physical and mental
2examination unless the court finds that the reports of prior
3physical and mental examinations conducted under this Part are
4adequate and recent enough to render additional examinations
6    (705 ILCS 405/5-5A-195 new)
7    Sec. 5-5A-195. Time credit. A sentence imposed on the
8child in the pending case or in any other case arising out of
9the same conduct shall be reduced by time spent:
10        (1) in custody under orders issued under Section
11    5-5A-170 or under a commitment to the Department of Human
12    Services following a finding of unfitness under this Part;
13        (2) in any court-ordered out-of-home placement;
14    including, but not limited to, a detention facility,
15    rehabilitation center, or inpatient hospital; or
16        (3) home detention or electronic monitoring pursuant
17    to Section 5-7A-110.
18    (705 ILCS 405/5-5A-200 new)
19    Sec. 5-5A-200. Court organization of records. Any report
20filed with the court concerning diagnosis, evaluation,
21progress, or services made under this Part shall not be placed
22in the child's court record but shall be maintained separately
23by the clerk of the court and shall be available only to the
24court or an appellate court, the State, the child, the child's



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1attorney, the child's parent or guardian, or a facility or
2program that provides services to the child under an order of
3the court. These records of the child shall be privileged and
4shall not be disclosed except under the conditions set forth
5in Section 5-910. Nothing in this Section shall operate to
6extinguish any rights of a child established by law,
7including, but not limited to: attorney-client,
8physician-patient, psychologist-client, or social
9worker-client privileges, except as otherwise provided by law.
10    (705 ILCS 405/5-5A-205 new)
11    Sec. 5-5A-205. Sentencing guidelines for a child who
12attains fitness. The court shall not impose a commitment to
13the Department of Juvenile Justice upon the child if the court
14believes that because of the child's condition, such a
15sentence would not be in the interests of society and the
16child, or would subject the child to excessive hardship. In
17addition to any other conditions of a sentence of conditional
18discharge or probation, the court may require that the child
19receive additional services for the child's condition.
20    (705 ILCS 405/5-5A-210 new)
21    Sec. 5-5A-210. Legal disposition if fitness cannot be
22attained. The court shall dismiss the charges against the
23child with prejudice if the court finds the child is unfit
24under Section 5-5A-165 and that the child:



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1        (1) cannot attain fitness within the period to attain
2    fitness defined in Section 5-5A-175 or that there is not a
3    substantial probability that the child will attain fitness
4    within the period to attain fitness defined under Section
5    5-5A-175; and
6        (2) cannot attain fitness with in-court assistance
7    under Section 5-5A-190.
8    (705 ILCS 405/5-5A-215 new)
9    Sec. 5-5A-215. Follow-up study and recommendations. The
10Illinois Juvenile Justice Commission shall develop and
11recommend mechanisms to collect and analyze data,
12disaggregated by race, ethnicity, gender, geography, age, and
13socioeconomic status, resulting from the implementation of
14this Part. The report and recommendations shall be submitted
15to the General Assembly by January 1, 2024.
16    Section 97. Severability. The provisions of this Act are
17severable under Section 1.31 of the Statute on Statutes.
18    Section 99. Effective date. This Act takes effect July 1,