(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. 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 |
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(2) the county and municipality in which the offense
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(3) the county and municipality in which the arrest
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(4) all additional matters which the Court directs
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(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 one year from the date of the finding of unfitness. 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
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rendering the defendant fit, a specification of the proposed treatment modalities, and an estimated timetable for attainment of the goals;
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(3) An identification of the person in charge of
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supervising the defendant's treatment.
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(Source: P.A. 89‑507, eff. 7‑1‑97.)
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(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 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 one year from the date of the original finding of unfitness,
or if at the end of 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 |
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Section 104‑25 unless a hearing has already been held pursuant to paragraph (a) of this Section; or
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(2) To release the defendant from custody and to
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dismiss with prejudice the charges against him; or
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(3) To remand the defendant to the custody of the
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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.
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(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.)
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(725 ILCS 5/104‑25) (from Ch. 38, par. 104‑25)
Sec. 104‑25.
Discharge hearing.
(a) As provided for in paragraph (a)
of Section 104‑23 and subparagraph (1) of paragraph (b) of Section 104‑23
a hearing to determine the sufficiency of the evidence shall be held. Such
hearing shall be conducted by the court without a jury. The State and the
defendant may introduce evidence relevant to the question of defendant's
guilt of the crime charged.
The court may admit hearsay or affidavit evidence on secondary matters
such as testimony to establish the chain of possession of physical evidence,
laboratory reports, authentication of transcripts taken by official reporters,
court and business records, and public documents.
(b) If the evidence does not prove the defendant guilty beyond a reasonable
doubt, the court shall enter a judgment of acquittal; however nothing herein
shall prevent the State from requesting the court to commit the defendant to
the Department of Human Services under the provisions of the Mental Health and
Developmental
Disabilities Code.
(c) If the defendant is found not guilty by reason of insanity, the court
shall enter a judgment of acquittal and the proceedings after acquittal
by reason of insanity under Section 5‑2‑4 of the Unified Code of Corrections
shall apply.
(d) If the discharge hearing does not result in an acquittal of the charge
the defendant may be remanded for further treatment and the one year time
limit set forth in Section 104‑23 shall be extended as follows:
(1) If the most serious charge upon which the State |
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sustained its burden of proof was a Class 1 or Class X felony, the treatment period may be extended up to a maximum treatment period of 2 years; if a Class 2, 3, or 4 felony, the treatment period may be extended up to a maximum of 15 months;
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(2) If the State sustained its burden of proof on a
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charge of first degree murder, the treatment period may be extended up to a maximum treatment period of 5 years.
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(e) Transcripts of testimony taken at a discharge hearing may be admitted
in evidence at a subsequent trial of the case, subject to the rules of
evidence,
if the witness who gave such testimony is legally unavailable at the time
of the subsequent trial.
(f) If the court fails to enter an order of acquittal the defendant may
appeal from such judgment in the same manner provided for an appeal from
a conviction in a criminal case.
(g) At the expiration of an extended period of treatment ordered pursuant
to this Section:
(1) Upon a finding that the defendant is fit or can
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be rendered fit consistent with Section 104‑22, the court may proceed with trial.
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(2) If the defendant continues to be unfit to stand
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trial, the court shall determine whether he or she is subject to involuntary admission under the Mental Health and Developmental Disabilities Code or constitutes a serious threat to the public safety. If so found, the defendant shall be remanded to the Department of Human Services for further treatment and shall be treated in the same manner as a civilly committed patient for all purposes, except that the original court having jurisdiction over the defendant shall be required to approve any conditional release or discharge of the defendant, for the period of commitment equal to the maximum sentence to which the defendant would have been subject had he or she been convicted in a criminal proceeding. During this period of commitment, the original court having jurisdiction over the defendant shall hold hearings under clause (i) of this paragraph (2). However, if the defendant is remanded 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.
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If the defendant does not have a current treatment
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plan, then within 3 days of admission under this subdivision (g)(2), a treatment plan shall be prepared for each defendant and entered into his or her record. The plan shall include (i) an assessment of the defendant's treatment needs, (ii) a description of the services recommended for treatment, (iii) the goals of each type of element of service, (iv) an anticipated timetable for the accomplishment of the goals, and (v) a designation of the qualified professional responsible for the implementation of the plan. The plan shall be reviewed and updated as the clinical condition warrants, but not less than every 30 days.
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Every 90 days after the initial admission under this
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subdivision (g)(2), the facility director shall file a typed treatment plan report with the original court having jurisdiction over the defendant. The report shall include an opinion as to whether the defendant is fit to stand trial and whether the defendant is currently subject to involuntary admission, 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 5 items required in a treatment plan. A copy of the report shall be forwarded to the clerk of the court, the State's Attorney, and the defendant's attorney if the defendant is represented by counsel.
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The court on its own motion may order a hearing to
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review the treatment plan. The defendant or the State's Attorney may request a treatment plan review every 90 days and the court shall review the current treatment plan to determine whether the plan complies with the requirements of this Section. The court may order an independent examination on its own initiative and shall order such an evaluation if either the recipient or the State's Attorney so requests and has demonstrated to the court that the plan cannot be effectively reviewed by the court without such an examination. Under no circumstances shall the court be required to order an independent examination pursuant to this Section more than once each year. The examination shall be conducted 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.
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If, during the period within which the defendant is
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confined in a secure setting, the court enters an order that requires the defendant to appear, the court shall timely transmit a copy of the order or writ to the director of the particular Department of Human Services facility where the defendant resides authorizing the transportation of the defendant to the court for the purpose of the hearing.
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(i) 180 days after a defendant is remanded to
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the Department of Human Services, under paragraph (2), and every 180 days thereafter for so long as the defendant is confined under the order entered thereunder, the court shall set a hearing and 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 determines that 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. If the defendant is not currently represented by counsel the court shall appoint the public defender to represent the defendant at the hearing. The court shall make a finding as to whether the defendant is:
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(A) subject to involuntary admission; or
(B) in need of mental health services in the
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form of inpatient care; or
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(C) in need of mental health services but
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not subject to involuntary admission nor inpatient care.
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The findings of the court shall be established by
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clear and convincing evidence and the burden of proof and the burden of going forward with the evidence shall rest with the State's Attorney. Upon finding by the court, the court shall enter its findings and an appropriate order.
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(ii) The terms "subject to involuntary
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admission", "in need of mental health services in the form of inpatient care" and "in need of mental health services but not subject to involuntary admission nor inpatient care" shall have the meanings ascribed to them in clause (d)(3) of Section 5‑2‑4 of the Unified Code of Corrections.
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(3) If the defendant is not committed pursuant to
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this Section, he or she shall be released.
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(4) In no event may the treatment period be extended
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to exceed the maximum sentence to which a defendant would have been subject had he or she been convicted in a criminal proceeding. For purposes of this Section, the maximum sentence shall be determined by Section 5‑8‑1 of the "Unified Code of Corrections", excluding any sentence of natural life.
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(Source: P.A. 91‑536, eff. 1‑1‑00.)
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(725 ILCS 5/104‑26) (from Ch. 38, par. 104‑26)
Sec. 104‑26.
Disposition of Defendants suffering disabilities.
(a) A defendant convicted following a trial conducted under the provisions
of Section 104‑22 shall not be sentenced before a written presentence report of
investigation is presented to and considered by the court. The presentence
report shall be prepared pursuant to Sections 5‑3‑2, 5‑3‑3 and 5‑3‑4 of
the Unified Code of Corrections, as now or hereafter amended, and shall
include a physical and mental examination unless the court finds that the
reports of prior physical and mental examinations conducted pursuant to
this Article are adequate and recent enough so that additional examinations
would be unnecessary.
(b) A defendant convicted following a trial under Section 104‑22 shall
not be subject to the death penalty.
(c) A defendant convicted following a trial under Section 104‑22 shall
be sentenced according to
the procedures and dispositions authorized under the Unified Code of
Corrections,
as now or hereafter amended, subject to the following provisions:
(1) The court shall not impose a sentence of |
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imprisonment upon the offender if the court believes that because of his disability a sentence of imprisonment would not serve the ends of justice and the interests of society and the offender or that because of his disability a sentence of imprisonment would subject the offender to excessive hardship. In addition to any other conditions of a sentence of conditional discharge or probation the court may require that the offender undergo treatment appropriate to his mental or physical condition.
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(2) After imposing a sentence of imprisonment upon
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an offender who has a mental disability, the court may remand him 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. If the offender is committed following such hearing, he shall be treated in the same manner as any other civilly committed patient for all purposes except as provided in this Section. If the defendant is not committed pursuant to such hearing, he shall be remanded to the sentencing court for disposition according to the sentence imposed.
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(3) If the court imposes a sentence of imprisonment
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upon an offender who has a mental disability but does not proceed under subparagraph (2) of paragraph (c) of this Section, it shall order the Department of Corrections to proceed pursuant to Section 3‑8‑5 of the Unified Code of Corrections, as now or hereafter amended.
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(4) If the court imposes a sentence of imprisonment
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upon an offender who has a physical disability, it may authorize the Department of Corrections to place the offender in a public or private facility which is able to provide care or treatment for the offender's disability and which agrees to do so.
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(5) When an offender is placed with the Department
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of Human Services or another facility pursuant to subparagraph (2) or (4) of this paragraph (c), the Department or private facility shall not discharge or allow the offender to be at large in the community without prior approval of the court. 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. The offender shall accrue good time and shall be eligible for parole in the same manner as if he were serving his sentence within the Department of Corrections. When the offender no longer requires hospitalization, care, or treatment, the Department of Human Services or the facility shall transfer him, if his sentence has not expired, to the Department of Corrections. If an offender is transferred to the Department of Corrections, the Department of Human Services shall transfer to the Department of Corrections all related records pertaining to length of custody and treatment services provided during the time the offender was held.
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(6) The Department of Corrections shall notify the
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Department of Human Services or a facility in which an offender has been placed pursuant to subparagraph (2) or (4) of paragraph (c) of this Section of the expiration of his sentence. Thereafter, an offender in the Department of Human Services shall continue to be treated pursuant to his commitment order and shall be considered a civilly committed patient for all purposes including discharge. An offender who is in a facility pursuant to subparagraph (4) of paragraph (c) of this Section shall be informed by the facility of the expiration of his sentence, and shall either consent to the continuation of his care or treatment by the facility or shall be discharged.
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(Source: P.A. 89‑507, eff. 7‑1‑97.)
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