Public Act 098-1025
 
SB2801 EnrolledLRB098 17630 MRW 52743 b

    AN ACT concerning criminal law.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Code of Criminal Procedure of 1963 is
amended by changing Sections 104-15, 104-17, 104-18, 104-20,
104-21, 104-23, and 104-31 as follows:
 
    (725 ILCS 5/104-15)  (from Ch. 38, par. 104-15)
    Sec. 104-15. Report.) (a) The person or persons conducting
an examination of the defendant, pursuant to paragraph (a) or
(b) of Section 104-13 shall submit a written report to the
court, the State, and the defense within 30 days of the date of
the order. The report shall include:
    (1) A diagnosis and an explanation as to how it was reached
and the facts upon which it is based;
    (2) A description of the defendant's mental or physical
disability, if any; its severity; and an opinion as to whether
and to what extent it impairs the defendant's ability to
understand the nature and purpose of the proceedings against
him or to assist in his defense, or both.
    (b) If the report indicates that the defendant is not fit
to stand trial or to plead because of a disability, the report
shall include an opinion as to the likelihood of the defendant
attaining fitness within one year if provided with a course of
treatment. If the person or persons preparing the report are
unable to form such an opinion, the report shall state the
reasons therefor. The report may include a general description
of the type of treatment needed and of the least physically
restrictive form of treatment therapeutically appropriate.
    (c) The report shall indicate what information, if any,
contained therein may be harmful to the mental condition of the
defendant if made known to him.
    (d) In addition to the report, a person retained or
appointed by the State or the defense to conduct an examination
shall, upon written request, make his or her notes, other
evaluations reviewed or relied upon by the testifying witness,
and any videotaped interviews available to another examiner of
the defendant. All forensic interviews conducted by a person
retained or appointed by the State or the defense shall be
videotaped unless doing so would be impractical. In the event
that the interview is not videotaped, the examiner may still
testify as to the person's fitness and the court may only
consider the lack of compliance in according the weight and not
the admissibility of the expert testimony. An examiner may use
these materials as part of his or her diagnosis and explanation
but shall not otherwise disclose the contents, including at a
hearing before the court, except as otherwise provided in
Section 104-14 of this Code.
(Source: P.A. 81-1217.)
 
    (725 ILCS 5/104-17)  (from Ch. 38, par. 104-17)
    Sec. 104-17. Commitment for Treatment; Treatment Plan.
    (a) If the defendant is eligible to be or has been released
on bail or on his own recognizance, the court shall select the
least physically restrictive form of treatment therapeutically
appropriate and consistent with the treatment plan.
    (b) If the defendant's disability is mental, the court may
order him placed for treatment in the custody of the Department
of Human Services, or the court may order him placed in the
custody of any other appropriate public or private mental
health facility or treatment program which has agreed to
provide treatment to the defendant. If the defendant is placed
in the custody of the Department of Human Services, the
defendant shall be placed in a secure setting unless the court
determines that there are compelling reasons why such placement
is not necessary. During the period of time required to
determine the appropriate placement the defendant shall remain
in jail. If upon the completion of the placement process the
Department of Human Services determines that the defendant is
currently fit to stand trial, it shall immediately notify the
court and shall submit a written report within 7 days. In that
circumstance the placement shall be held pending a court
hearing on the Department's report. Otherwise, upon completion
of the placement process, the sheriff shall be notified and
shall transport the defendant to the designated facility. The
placement may be ordered either on an inpatient or an
outpatient basis.
    (c) If the defendant's disability is physical, the court
may order him placed under the supervision of the Department of
Human Services which shall place and maintain the defendant in
a suitable treatment facility or program, or the court may
order him placed in an appropriate public or private facility
or treatment program which has agreed to provide treatment to
the defendant. The placement may be ordered either on an
inpatient or an outpatient basis.
    (d) The clerk of the circuit court shall transmit to the
Department, agency or institution, if any, to which the
defendant is remanded for treatment, the following:
        (1) a certified copy of the order to undergo treatment;
        (2) the county and municipality in which the offense
    was committed;
        (3) the county and municipality in which the arrest
    took place;
        (4) a copy of the arrest report, criminal charges,
    arrest record, jail record, and the report prepared under
    Section 104-15; and
        (5) all additional matters which the Court directs the
    clerk to transmit.
    (e) Within 30 days of entry of an order to undergo
treatment, the person supervising the defendant's treatment
shall file with the court, the State, and the defense a report
assessing the facility's or program's capacity to provide
appropriate treatment for the defendant and indicating his
opinion as to the probability of the defendant's attaining
fitness within a period of time one year from the date of the
finding of unfitness. For a defendant charged with a felony,
the period of time shall be one year. For a defendant charged
with a misdemeanor, the period of time shall be no longer than
the sentence if convicted of the most serious offense. If the
report indicates that there is a substantial probability that
the defendant will attain fitness within the time period, the
treatment supervisor shall also file a treatment plan which
shall include:
        (1) A diagnosis of the defendant's disability;
        (2) A description of treatment goals with respect to
    rendering the defendant fit, a specification of the
    proposed treatment modalities, and an estimated timetable
    for attainment of the goals;
        (3) An identification of the person in charge of
    supervising the defendant's treatment.
(Source: P.A. 95-296, eff. 8-20-07; 96-310, eff. 8-11-09.)
 
    (725 ILCS 5/104-18)  (from Ch. 38, par. 104-18)
    Sec. 104-18. Progress Reports.)
    (a) The treatment supervisor shall submit a written
progress report to the court, the State, and the defense:
        (1) At least 7 days prior to the date for any hearing
    on the issue of the defendant's fitness;
        (2) Whenever he believes that the defendant has
    attained fitness;
        (3) Whenever he believes that there is not a
    substantial probability that the defendant will attain
    fitness, with treatment, within the time period set in
    subsection (e) of Section 104-17 of this Code one year from
    the date of the original finding of unfitness.
    (b) The progress report shall contain:
        (1) The clinical findings of the treatment supervisor
    and the facts upon which the findings are based;
        (2) The opinion of the treatment supervisor as to
    whether the defendant has attained fitness or as to whether
    the defendant is making progress, under treatment, toward
    attaining fitness within the time period set in subsection
    (e) of Section 104-17 of this Code one year from the date
    of the original finding of unfitness;
        (3) If the defendant is receiving medication,
    information from the prescribing physician indicating the
    type, the dosage and the effect of the medication on the
    defendant's appearance, actions and demeanor.
    (c) Whenever the court is sent a report from the supervisor
of the defendant's treatment under paragraph (2) of subsection
(a) of this Section, the treatment provider shall arrange with
the court for the return of the defendant to the county jail
before the time frame specified in subsection (a) of Section
104-20. This subsection (c) is inoperative on and after January
1, 2014.
(Source: P.A. 97-1020, eff. 8-17-12.)
 
    (725 ILCS 5/104-20)  (from Ch. 38, par. 104-20)
    Sec. 104-20. Ninety-Day Hearings; Continuing Treatment.)
    (a) Upon entry or continuation of any order to undergo
treatment, the court shall set a date for hearing to reexamine
the issue of the defendant's fitness not more than 90 days
thereafter. In addition, whenever the court receives a report
from the supervisor of the defendant's treatment pursuant to
subparagraph (2) or (3) of paragraph (a) of Section 104-18, the
court shall forthwith set the matter for a first hearing within
14 days unless good cause is demonstrated why the hearing
cannot be held. On the date set or upon conclusion of the
matter then pending before it, the court, sitting without a
jury, shall conduct a hearing, unless waived by the defense,
and shall determine:
        (1) Whether the defendant is fit to stand trial or to
    plead; and if not,
        (2) Whether the defendant is making progress under
    treatment toward attainment of fitness within the time
    period set in subsection (e) of Section 104-17 of this Code
    one year from the date of the original finding of
    unfitness.
    (b) If the court finds the defendant to be fit pursuant to
this Section, the court shall set the matter for trial;
provided that if the defendant is in need of continued care or
treatment and the supervisor of the defendant's treatment
agrees to continue to provide it, the court may enter any order
it deems appropriate for the continued care or treatment of the
defendant by the facility or program pending the conclusion of
the criminal proceedings.
    (c) If the court finds that the defendant is still unfit
but that he is making progress toward attaining fitness, the
court may continue or modify its original treatment order
entered pursuant to Section 104-17.
    (d) If the court finds that the defendant is still unfit
and that he is not making progress toward attaining fitness
such that there is not a substantial probability that he will
attain fitness within the time period set in subsection (e) of
Section 104-17 of this Code one year from the date of the
original finding of unfitness, the court shall proceed pursuant
to Section 104-23. However, if the defendant is in need of
continued care and treatment and the supervisor of the
defendant's treatment agrees to continue to provide it, the
court may enter any order it deems appropriate for the
continued care or treatment by the facility or program pending
the conclusion of the criminal proceedings.
(Source: P.A. 97-37, eff. 6-28-11.)
 
    (725 ILCS 5/104-21)  (from Ch. 38, par. 104-21)
    Sec. 104-21. Medication.
    (a) A defendant who is receiving psychotropic drugs shall
not be presumed to be unfit to stand trial solely by virtue of
the receipt of those drugs or medications.
    (b) Whenever a defendant who is receiving medication under
medical direction is transferred between a place of custody and
a treatment facility or program, a written report from the
prescribing physician shall accompany the defendant. The
report shall state the type and dosage of the defendant's
medication and the duration of the prescription. The chief
officer of the place of custody or the treatment supervisor at
the facility or program shall insure that such medication is
provided according to the directions of the prescribing
physician or until superseded by order of a physician who has
examined the defendant.
    (c) If a defendant refuses psychotropic medication, it may
be administered over the defendant's objections in accord with
the Mental Health and Developmental Disabilities Code. If court
authorized medications are sought, the petition, prepared in
accord with Section 2-107.1 of the Mental Health and
Developmental Disabilities Code may be filed in the county
where the defendant is located or with the court having
jurisdiction over the defendant.
(Source: P.A. 89-428, eff. 12-13-95; 89-689, eff. 12-31-96.)
 
    (725 ILCS 5/104-23)  (from Ch. 38, par. 104-23)
    Sec. 104-23. Unfit defendants. Cases involving an unfit
defendant who demands a discharge hearing or a defendant who
cannot become fit to stand trial and for whom no special
provisions or assistance can compensate for his disability and
render him fit shall proceed in the following manner:
    (a) Upon a determination that there is not a substantial
probability that the defendant will attain fitness within the
time period set in subsection (e) of Section 104-17 of this
Code one year from the original finding of unfitness, a
defendant or the attorney for the defendant may move for a
discharge hearing pursuant to the provisions of Section 104-25.
The discharge hearing shall be held within 120 days of the
filing of a motion for a discharge hearing, unless the delay is
occasioned by the defendant.
    (b) If at any time the court determines that there is not a
substantial probability that the defendant will become fit to
stand trial or to plead within the time period set in
subsection (e) of Section 104-17 of this Code one year from the
date of the original finding of unfitness, or if at the end of
the time period set in subsection (e) of Section 104-17 of this
Code one year from that date the court finds the defendant
still unfit and for whom no special provisions or assistance
can compensate for his disabilities and render him fit, the
State shall request the court:
        (1) To set the matter for hearing pursuant to Section
    104-25 unless a hearing has already been held pursuant to
    paragraph (a) of this Section; or
        (2) To release the defendant from custody and to
    dismiss with prejudice the charges against him; or
        (3) To remand the defendant to the custody of the
    Department of Human Services and order a hearing to be
    conducted pursuant to the provisions of the Mental Health
    and Developmental Disabilities Code, as now or hereafter
    amended. The Department of Human Services shall have 7 days
    from the date it receives the defendant to prepare and file
    the necessary petition and certificates that are required
    for commitment under the Mental Health and Developmental
    Disabilities Code. If the defendant is committed to the
    Department of Human Services pursuant to such hearing, the
    court having jurisdiction over the criminal matter shall
    dismiss the charges against the defendant, with the leave
    to reinstate. In such cases the Department of Human
    Services shall notify the court, the State's attorney and
    the defense attorney upon the discharge of the defendant. A
    former defendant so committed shall be treated in the same
    manner as any other civilly committed patient for all
    purposes including admission, selection of the place of
    treatment and the treatment modalities, entitlement to
    rights and privileges, transfer, and discharge. A
    defendant who is not committed shall be remanded to the
    court having jurisdiction of the criminal matter for
    disposition pursuant to subparagraph (1) or (2) of
    paragraph (b) of this Section.
    (c) If the defendant is restored to fitness and the
original charges against him are reinstated, the speedy trial
provisions of Section 103-5 shall commence to run.
(Source: P.A. 89-439, eff. 6-1-96; 89-507, eff. 7-1-97.)
 
    (725 ILCS 5/104-31)  (from Ch. 38, par. 104-31)
    Sec. 104-31. No defendant placed in a setting of the
Department of Human Services pursuant to the provisions of
Sections 104-17, 104-25, or 104-26 shall be permitted outside
the facility's housing unit unless escorted or accompanied by
personnel of the Department of Human Services or authorized by
court order. Any defendant placed in a secure setting pursuant
to this Section, transported to court hearings or other
necessary appointments off facility grounds by personnel of the
Department of Human Services, may be placed in security devices
or otherwise secured during the period of transportation to
assure secure transport of the defendant and the safety of
Department of Human Services personnel and others. These
security measures shall not constitute restraint as defined in
the Mental Health and Developmental Disabilities Code. Nor
shall any defendant be permitted any off-grounds privileges,
either with or without escort by personnel of the Department of
Human Services or , any unsupervised on-ground privileges, or
placement in a non-secure setting unless such off-grounds or
unsupervised on-grounds privileges, or placement in a
non-secure setting have been approved by specific court order,
which order may include such conditions on the defendant as the
court may deem appropriate and necessary to reasonably assure
the defendant's satisfactory progress in treatment and the
safety of the defendant or others. Whenever the court receives
a report from the supervisor of the defendant's treatment
recommending the defendant for any off-grounds or unsupervised
on-grounds privileges, or placement in a non-secure setting,
the court shall set the matter for a first hearing within 21
days unless good cause is demonstrated why the hearing cannot
be held. The changes made to this Section by this amendatory
Act of the 96th General Assembly are declarative of existing
law and shall not be construed as a new enactment.
(Source: P.A. 95-296, eff. 8-20-07; 96-1069, eff. 7-16-10.)
 
    Section 10. The Unified Code of Corrections is amended by
changing Section 5-2-4 as follows:
 
    (730 ILCS 5/5-2-4)  (from Ch. 38, par. 1005-2-4)
    Sec. 5-2-4. Proceedings after Acquittal by Reason of
Insanity.
    (a) After a finding or verdict of not guilty by reason of
insanity under Sections 104-25, 115-3 or 115-4 of the Code of
Criminal Procedure of 1963, the defendant shall be ordered to
the Department of Human Services for an evaluation as to
whether he is in need of mental health services. The order
shall specify whether the evaluation shall be conducted on an
inpatient or outpatient basis. If the evaluation is to be
conducted on an inpatient basis, the defendant shall be placed
in a secure setting unless the Court determines that there are
compelling reasons why such placement is not necessary. With
the court order for evaluation shall be sent a copy of the
arrest report, criminal charges, arrest record, jail record,
any report prepared under Section 115-6 of the Code of Criminal
Procedure of 1963, and any victim impact statement prepared
under Section 6 of the Rights of Crime Victims and Witnesses
Act. After the evaluation and during the period of time
required to determine the appropriate placement, the defendant
shall remain in jail. Individualized placement evaluations by
the Department of Human Services determine the most appropriate
setting for forensic treatment based upon a number of factors
including mental health diagnosis, proximity to surviving
victims, security need, age, gender, and proximity to family.
Upon completion of the placement process the sheriff shall be
notified and shall transport the defendant to the designated
facility.
    The Department shall provide the Court with a report of its
evaluation within 30 days of the date of this order. The Court
shall hold a hearing as provided under the Mental Health and
Developmental Disabilities Code to determine if the individual
is: (a) in need of mental health services on an inpatient
basis; (b) in need of mental health services on an outpatient
basis; (c) a person not in need of mental health services. The
Court shall enter its findings.
    If the defendant is found to be in need of mental health
services on an inpatient care basis, the Court shall order the
defendant to the Department of Human Services. The defendant
shall be placed in a secure setting unless the Court determines
that there are compelling reasons why such placement is not
necessary. Such defendants placed in a secure setting shall not
be permitted outside the facility's housing unit unless
escorted or accompanied by personnel of the Department of Human
Services or with the prior approval of the Court for
unsupervised on-grounds privileges as provided herein. Any
defendant placed in a secure setting pursuant to this Section,
transported to court hearings or other necessary appointments
off facility grounds by personnel of the Department of Human
Services, shall be placed in security devices or otherwise
secured during the period of transportation to assure secure
transport of the defendant and the safety of Department of
Human Services personnel and others. These security measures
shall not constitute restraint as defined in the Mental Health
and Developmental Disabilities Code. If the defendant is found
to be in need of mental health services, but not on an
inpatient care basis, the Court shall conditionally release the
defendant, under such conditions as set forth in this Section
as will reasonably assure the defendant's satisfactory
progress and participation in treatment or rehabilitation and
the safety of the defendant and others. If the Court finds the
person not in need of mental health services, then the Court
shall order the defendant discharged from custody.
    (a-1) Definitions. For the purposes of this Section:
        (A) (Blank).
        (B) "In need of mental health services on an inpatient
    basis" means: a defendant who has been found not guilty by
    reason of insanity but who due to mental illness is
    reasonably expected to inflict serious physical harm upon
    himself or another and who would benefit from inpatient
    care or is in need of inpatient care.
        (C) "In need of mental health services on an outpatient
    basis" means: a defendant who has been found not guilty by
    reason of insanity who is not in need of mental health
    services on an inpatient basis, but is in need of
    outpatient care, drug and/or alcohol rehabilitation
    programs, community adjustment programs, individual,
    group, or family therapy, or chemotherapy.
        (D) "Conditional Release" means: the release from
    either the custody of the Department of Human Services or
    the custody of the Court of a person who has been found not
    guilty by reason of insanity under such conditions as the
    Court may impose which reasonably assure the defendant's
    satisfactory progress in treatment or habilitation and the
    safety of the defendant and others. The Court shall
    consider such terms and conditions which may include, but
    need not be limited to, outpatient care, alcoholic and drug
    rehabilitation programs, community adjustment programs,
    individual, group, family, and chemotherapy, random
    testing to ensure the defendant's timely and continuous
    taking of any medicines prescribed to control or manage his
    or her conduct or mental state, and periodic checks with
    the legal authorities and/or the Department of Human
    Services. The Court may order as a condition of conditional
    release that the defendant not contact the victim of the
    offense that resulted in the finding or verdict of not
    guilty by reason of insanity or any other person. The Court
    may order the Department of Human Services to provide care
    to any person conditionally released under this Section.
    The Department may contract with any public or private
    agency in order to discharge any responsibilities imposed
    under this Section. The Department shall monitor the
    provision of services to persons conditionally released
    under this Section and provide periodic reports to the
    Court concerning the services and the condition of the
    defendant. Whenever a person is conditionally released
    pursuant to this Section, the State's Attorney for the
    county in which the hearing is held shall designate in
    writing the name, telephone number, and address of a person
    employed by him or her who shall be notified in the event
    that either the reporting agency or the Department decides
    that the conditional release of the defendant should be
    revoked or modified pursuant to subsection (i) of this
    Section. Such conditional release shall be for a period of
    five years. However, the defendant, the person or facility
    rendering the treatment, therapy, program or outpatient
    care, the Department, or the State's Attorney may petition
    the Court for an extension of the conditional release
    period for an additional 5 years. Upon receipt of such a
    petition, the Court shall hold a hearing consistent with
    the provisions of paragraph (a), this paragraph (a-1), and
    paragraph (f) of this Section, shall determine whether the
    defendant should continue to be subject to the terms of
    conditional release, and shall enter an order either
    extending the defendant's period of conditional release
    for an additional 5 year period or discharging the
    defendant. Additional 5-year periods of conditional
    release may be ordered following a hearing as provided in
    this Section. However, in no event shall the defendant's
    period of conditional release continue beyond the maximum
    period of commitment ordered by the Court pursuant to
    paragraph (b) of this Section. These provisions for
    extension of conditional release shall only apply to
    defendants conditionally released on or after August 8,
    2003. However the extension provisions of Public Act
    83-1449 apply only to defendants charged with a forcible
    felony.
        (E) "Facility director" means the chief officer of a
    mental health or developmental disabilities facility or
    his or her designee or the supervisor of a program of
    treatment or habilitation or his or her designee.
    "Designee" may include a physician, clinical psychologist,
    social worker, nurse, or clinical professional counselor.
    (b) If the Court finds the defendant in need of mental
health services on an inpatient basis, the admission,
detention, care, treatment or habilitation, treatment plans,
review proceedings, including review of treatment and
treatment plans, and discharge of the defendant after such
order shall be under the Mental Health and Developmental
Disabilities Code, except that the initial order for admission
of a defendant acquitted of a felony by reason of insanity
shall be for an indefinite period of time. Such period of
commitment shall not exceed the maximum length of time that the
defendant would have been required to serve, less credit for
good behavior as provided in Section 5-4-1 of the Unified Code
of Corrections, before becoming eligible for release had he
been convicted of and received the maximum sentence for the
most serious crime for which he has been acquitted by reason of
insanity. The Court shall determine the maximum period of
commitment by an appropriate order. During this period of time,
the defendant shall not be permitted to be in the community in
any manner, including but not limited to off-grounds
privileges, with or without escort by personnel of the
Department of Human Services, unsupervised on-grounds
privileges, discharge or conditional or temporary release,
except by a plan as provided in this Section. In no event shall
a defendant's continued unauthorized absence be a basis for
discharge. Not more than 30 days after admission and every 60
days thereafter so long as the initial order remains in effect,
the facility director shall file a treatment plan report in
writing with the court and forward a copy of the treatment plan
report to the clerk of the court, the State's Attorney, and the
defendant's attorney, if the defendant is represented by
counsel, or to a person authorized by the defendant under the
Mental Health and Developmental Disabilities Confidentiality
Act to be sent a copy of the report. The report shall include
an opinion as to whether the defendant is currently in need of
mental health services on an inpatient basis or in need of
mental health services on an outpatient basis. The report shall
also summarize the basis for those findings and provide a
current summary of the following items from the treatment plan:
(1) an assessment of the defendant's treatment needs, (2) a
description of the services recommended for treatment, (3) the
goals of each type of element of service, (4) an anticipated
timetable for the accomplishment of the goals, and (5) a
designation of the qualified professional responsible for the
implementation of the plan. The report may also include
unsupervised on-grounds privileges, off-grounds privileges
(with or without escort by personnel of the Department of Human
Services), home visits and participation in work programs, but
only where such privileges have been approved by specific court
order, which order may include such conditions on the defendant
as the Court may deem appropriate and necessary to reasonably
assure the defendant's satisfactory progress in treatment and
the safety of the defendant and others.
    (c) Every defendant acquitted of a felony by reason of
insanity and subsequently found to be in need of mental health
services shall be represented by counsel in all proceedings
under this Section and under the Mental Health and
Developmental Disabilities Code.
        (1) The Court shall appoint as counsel the public
    defender or an attorney licensed by this State.
        (2) Upon filing with the Court of a verified statement
    of legal services rendered by the private attorney
    appointed pursuant to paragraph (1) of this subsection, the
    Court shall determine a reasonable fee for such services.
    If the defendant is unable to pay the fee, the Court shall
    enter an order upon the State to pay the entire fee or such
    amount as the defendant is unable to pay from funds
    appropriated by the General Assembly for that purpose.
    (d) When the facility director determines that:
        (1) the defendant is no longer in need of mental health
    services on an inpatient basis; and
        (2) the defendant may be conditionally released
    because he or she is still in need of mental health
    services or that the defendant may be discharged as not in
    need of any mental health services; or
        (3) (blank); the defendant no longer requires
    placement in a secure setting;
the facility director shall give written notice to the Court,
State's Attorney and defense attorney. Such notice shall set
forth in detail the basis for the recommendation of the
facility director, and specify clearly the recommendations, if
any, of the facility director, concerning conditional release.
Any recommendation for conditional release shall include an
evaluation of the defendant's need for psychotropic
medication, what provisions should be made, if any, to ensure
that the defendant will continue to receive psychotropic
medication following discharge, and what provisions should be
made to assure the safety of the defendant and others in the
event the defendant is no longer receiving psychotropic
medication. Within 30 days of the notification by the facility
director, the Court shall set a hearing and make a finding as
to whether the defendant is:
        (i) (blank); or
        (ii) in need of mental health services in the form of
    inpatient care; or
        (iii) in need of mental health services but not subject
    to inpatient care; or
        (iv) no longer in need of mental health services; or
        (v) (blank). no longer requires placement in a secure
    setting.
    Upon finding by the Court, the Court shall enter its
findings and such appropriate order as provided in subsections
(a) and (a-1) of this Section.
    (e) A defendant admitted pursuant to this Section, or any
person on his behalf, may file a petition for treatment plan
review, transfer to a non-secure setting within the Department
of Human Services or discharge or conditional release under the
standards of this Section in the Court which rendered the
verdict. Upon receipt of a petition for treatment plan review,
transfer to a non-secure setting or discharge or conditional
release, the Court shall set a hearing to be held within 120
days. Thereafter, no new petition may be filed for 180 days
without leave of the Court.
    (f) The Court shall direct that notice of the time and
place of the hearing be served upon the defendant, the facility
director, the State's Attorney, and the defendant's attorney.
If requested by either the State or the defense or if the Court
feels it is appropriate, an impartial examination of the
defendant by a psychiatrist or clinical psychologist as defined
in Section 1-103 of the Mental Health and Developmental
Disabilities Code who is not in the employ of the Department of
Human Services shall be ordered, and the report considered at
the time of the hearing.
    (g) The findings of the Court shall be established by clear
and convincing evidence. The burden of proof and the burden of
going forth with the evidence rest with the defendant or any
person on the defendant's behalf when a hearing is held to
review a petition filed by or on behalf of the defendant. The
evidence shall be presented in open Court with the right of
confrontation and cross-examination. Such evidence may
include, but is not limited to:
        (1) whether the defendant appreciates the harm caused
    by the defendant to others and the community by his or her
    prior conduct that resulted in the finding of not guilty by
    reason of insanity;
        (2) Whether the person appreciates the criminality of
    conduct similar to the conduct for which he or she was
    originally charged in this matter;
        (3) the current state of the defendant's illness;
        (4) what, if any, medications the defendant is taking
    to control his or her mental illness;
        (5) what, if any, adverse physical side effects the
    medication has on the defendant;
        (6) the length of time it would take for the
    defendant's mental health to deteriorate if the defendant
    stopped taking prescribed medication;
        (7) the defendant's history or potential for alcohol
    and drug abuse;
        (8) the defendant's past criminal history;
        (9) any specialized physical or medical needs of the
    defendant;
        (10) any family participation or involvement expected
    upon release and what is the willingness and ability of the
    family to participate or be involved;
        (11) the defendant's potential to be a danger to
    himself, herself, or others; and
        (12) any other factor or factors the Court deems
    appropriate.
    (h) Before the court orders that the defendant be
discharged or conditionally released, it shall order the
facility director to establish a discharge plan that includes a
plan for the defendant's shelter, support, and medication. If
appropriate, the court shall order that the facility director
establish a program to train the defendant in self-medication
under standards established by the Department of Human
Services. If the Court finds, consistent with the provisions of
this Section, that the defendant is no longer in need of mental
health services it shall order the facility director to
discharge the defendant. If the Court finds, consistent with
the provisions of this Section, that the defendant is in need
of mental health services, and no longer in need of inpatient
care, it shall order the facility director to release the
defendant under such conditions as the Court deems appropriate
and as provided by this Section. Such conditional release shall
be imposed for a period of 5 years as provided in paragraph (D)
of subsection (a-1) and shall be subject to later modification
by the Court as provided by this Section. If the Court finds
consistent with the provisions in this Section that the
defendant is in need of mental health services on an inpatient
basis, it shall order the facility director not to discharge or
release the defendant in accordance with paragraph (b) of this
Section.
    (i) If within the period of the defendant's conditional
release the State's Attorney determines that the defendant has
not fulfilled the conditions of his or her release, the State's
Attorney may petition the Court to revoke or modify the
conditional release of the defendant. Upon the filing of such
petition the defendant may be remanded to the custody of the
Department, or to any other mental health facility designated
by the Department, pending the resolution of the petition.
Nothing in this Section shall prevent the emergency admission
of a defendant pursuant to Article VI of Chapter III of the
Mental Health and Developmental Disabilities Code or the
voluntary admission of the defendant pursuant to Article IV of
Chapter III of the Mental Health and Developmental Disabilities
Code. If the Court determines, after hearing evidence, that the
defendant has not fulfilled the conditions of release, the
Court shall order a hearing to be held consistent with the
provisions of paragraph (f) and (g) of this Section. At such
hearing, if the Court finds that the defendant is in need of
mental health services on an inpatient basis, it shall enter an
order remanding him or her to the Department of Human Services
or other facility. If the defendant is remanded to the
Department of Human Services, he or she shall be placed in a
secure setting unless the Court determines that there are
compelling reasons that such placement is not necessary. If the
Court finds that the defendant continues to be in need of
mental health services but not on an inpatient basis, it may
modify the conditions of the original release in order to
reasonably assure the defendant's satisfactory progress in
treatment and his or her safety and the safety of others in
accordance with the standards established in paragraph (D) of
subsection (a-1). Nothing in this Section shall limit a Court's
contempt powers or any other powers of a Court.
    (j) An order of admission under this Section does not
affect the remedy of habeas corpus.
    (k) In the event of a conflict between this Section and the
Mental Health and Developmental Disabilities Code or the Mental
Health and Developmental Disabilities Confidentiality Act, the
provisions of this Section shall govern.
    (l) This amendatory Act shall apply to all persons who have
been found not guilty by reason of insanity and who are
presently committed to the Department of Mental Health and
Developmental Disabilities (now the Department of Human
Services).
    (m) The Clerk of the Court shall, after the entry of an
order of transfer to a non-secure setting of the Department of
Human Services or discharge or conditional release, transmit a
certified copy of the order to the Department of Human
Services, and the sheriff of the county from which the
defendant was admitted. The Clerk of the Court shall also
transmit a certified copy of the order of discharge or
conditional release to the Department of Human Services, to the
sheriff of the county from which the defendant was admitted, to
the Illinois Department of State Police, to the proper law
enforcement agency for the municipality where the offense took
place, and to the sheriff of the county into which the
defendant is conditionally discharged. The Illinois Department
of State Police shall maintain a centralized record of
discharged or conditionally released defendants while they are
under court supervision for access and use of appropriate law
enforcement agencies.
(Source: P.A. 95-296, eff. 8-20-07; 95-331, eff. 8-21-07;
96-1138, eff. 7-21-10.)
 
    Section 99. Effective date. This Act takes effect upon
becoming law, except that the changes to Section 104-15 of the
Code of Criminal Procedure of 1963 take effect on January 1,
2015.