Bill Text: IL HB0787 | 2013-2014 | 98th General Assembly | Amended

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Bill Title: Amends the Supreme Court Act. Makes a technical change in a Section concerning the powers of the Court.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2014-12-03 - Session Sine Die [HB0787 Detail]

Download: Illinois-2013-HB0787-Amended.html

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Rep. Ann Williams

Filed: 3/22/2013

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AMENDMENT TO HOUSE BILL 787
AMENDMENT NO. ______. Amend House Bill 787 by replacing
everything after the enacting clause with the following:
"Section 5. The Juvenile Court Act of 1987 is amended by
adding Part 5.5 to Article V as follows:
705 ILCS 405/Art. V Pt. 5.5 heading new
Part 5.5
JUVENILE FITNESS TO STAND TRIAL
(705 ILCS 405/5-5.5-101 new)
Sec. 5-5.5-101. Presumption of fitness; fitness standard.
A minor is presumed to be fit to stand trial or to plead, and be
sentenced. A minor is unfit if, because of his or her mental or
physical condition, he or she is unable to understand the
nature and purpose of the proceedings against him or her or to
assist in his or her defense. For purposes of this Act, "mental

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condition" includes, but is not limited to, mental illness and
developmental disability. A judge, at his or her discretion,
may consider developmental immaturity as a factor.
(705 ILCS 405/5-5.5-105 new)
Sec. 5-5.5-105. Raising issue; burden; fitness motions.
(a) The issue of the minor's fitness for trial, to plead,
or to be sentenced may be raised by the defense, the State, or
the court at any appropriate time before a plea is entered or
before, during, or after trial. When a bonafide doubt of the
minor's fitness is raised, the court shall order a
determination of the issue before proceeding further.
(b) Upon request of the minor that a qualified expert be
appointed to examine him or her to determine prior to trial if
a bonafide doubt as to his or her fitness to stand trial may be
raised, the court, in its discretion, may order an appropriate
examination. However, no order entered under this subsection
shall prevent further proceedings in the case. An expert so
appointed shall examine the minor and make a report as provided
in Section 5-5.5-125. Upon the filing with the court of a
verified statement of services rendered, the court shall enter
an order on the county board to pay the expert a reasonable fee
stated in the order.
(c) When a bonafide doubt of the minor's fitness has been
raised, the burden of proving that the minor is fit by a
preponderance of the evidence and the burden of going forward

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with the evidence are on the State. However, the court may call
its own witnesses and conduct its own inquiry.
(d) Following a finding of unfitness, the court may hear
and rule on any pretrial motion or motions if the minor's
presence is not essential to a fair determination of the
issues. A motion may be reheard upon a showing that evidence is
available which was not available, due to the minor's
unfitness, when the motion was first decided.
(705 ILCS 405/5-5.5-110 new)
Sec. 5-5.5-110. Right to jury. The issue of the minor's
fitness may be determined in the first instance by the court or
by a jury. The defense or the State may demand a jury or the
court on its own motion may order a jury. However, when the
issue is raised after trial has begun or after conviction but
before sentencing, or when the issue is to be redetermined
under Section 5-5.5-150 or 5-5.5-185, the issue shall be
determined by the court.
(705 ILCS 405/5-5.5-115 new)
Sec. 5-5.5-115. Fitness examination.
(a) When the issue of fitness involves the minor's mental
condition, the court shall order an examination of the minor by
one or more licensed physicians, clinical psychologists, or
psychiatrists chosen by the court. No physician, clinical
psychologist, or psychiatrist employed by the Department of

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Human Services shall be ordered to perform, in his or her
official capacity, an examination under this Section. Under
this Act, the evaluator must have training in child development
as well as training or experience in forensic practice.
(b) If the issue of fitness involves the minor's physical
condition, the court shall appoint one or more physicians and
in addition, other experts as it may deem appropriate to
examine the minor and to report to the court regarding the
minor's condition.
(c) An examination ordered under this Section shall be
given at the place designated by the person who will conduct
the examination, except that if the minor is being held in
custody, the examination shall take place at the location as
the court directs. No examinations under this Section shall be
ordered to take place at mental health or developmental
disabilities facilities operated by the Department of Human
Services. If the minor fails to keep appointments without
reasonable cause or if the person conducting the examination
reports to the court that diagnosis requires hospitalization or
extended observation, the court may order the minor admitted to
an appropriate facility for an examination, other than a
screening examination, for not more than 7 days. The court may,
upon a showing of good cause, grant an additional 7 days to
complete the examination.
(d) A juvenile who has been released from detention prior
to trial shall not be placed back in detention based solely on

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the fact that a court has ordered an evaluation.
(e) Upon request by the defense and if the minor is
indigent, the court may appoint, in addition to the expert or
experts chosen under subsection (a) of this Section, a
qualified expert selected by the minor to examine him and to
make a report as provided in Section 5-5.5-125. Upon the filing
with the court of a verified statement of services rendered,
the court shall enter an order on the county board to pay the
expert a reasonable fee stated in the order.
(705 ILCS 405/5-5.5-120 new)
Sec. 5-5.5-120. Use of statements made during examination
or treatment.
(a) Statements made by the minor and information gathered
in the course of any examination or treatment ordered under
Section 5-5.5-115, 5-5.5-135, or 5-5.5-150 shall not be
admissible against the minor unless he or she raises the
defense of insanity or the defense of drugged or intoxicated
condition, in which case the statements or information shall be
admissible only on the issue of whether he or she was insane,
drugged, or intoxicated. The refusal of the minor to cooperate
in the examinations shall not preclude the raising of those
defenses but shall preclude the minor from offering expert
evidence or testimony tending to support the defenses if the
expert evidence or testimony is based upon the expert's
examination of the minor.

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(b) Except as provided in paragraph (a) of this Section, no
statement made by the minor in the course of any examination or
treatment ordered under Section 5-5.5-115, 5-5.5-135, or
5-5.150 which relates to the crime charged or to other criminal
acts shall be disclosed by persons conducting the examination
or the treatment, except to members of the examining or
treating team, without the informed written consent of the
minor, who is competent at the time of giving the consent.
(c) The court shall advise the minor of the limitations on
the use of any statements made or information gathered in the
course of the fitness examination or subsequent treatment as
provided in this Section. It shall also advise him or her that
he or she may refuse to cooperate with the person conducting
the examination, but that his or her refusal may be admissible
into evidence on the issue of his or her mental or physical
condition.
(705 ILCS 405/5-5.5-125 new)
Sec. 5-5.5-125. Report.
(a) The person or persons conducting an examination of the
minor, under paragraph (a) or (b) of Section 5-5.5-115 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;

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(2) the minor's history and current status regarding
any possible mental illness, intellectual disability, or
physical disability;
(3) a description of the cognitive abilities of the
minor associated with the minor's current level of
development;
(4) the minor's functional abilities related to
fitness, including the minor's ability to understand the
nature and purpose of the proceedings against him or her or
to assist in his or her defense;
(5) the relationship between the minor's diagnosis,
disabilities, developmental characteristics, and
functional abilities, identified above, and any mental
condition resulting in deficits to the minor's functional
abilities related to fitness; and
(6) if the evaluator believes the minor is in need of
remediation or restoration services, the evaluator should
discuss:
(i) whether the minor's deficits are likely to be
remediated or restored within the statutory period;
(ii) any recommended interventions to aid in the
remediation or restoration of the minor's fitness; and
(iii) whether it is more therapeutically
appropriate to provide the interventions on an
outpatient or inpatient basis.
(b) If the report indicates that the minor is not fit to

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stand trial or to plead because of a disability, the report
shall include an opinion as to the likelihood of the minor
attaining fitness within one year if provided with a course of
treatment. If the person or persons preparing the report are
unable to form that opinion, the report shall state the reasons
for being able to form an opinion. 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 in the report may be harmful to the mental condition
of the minor if made known to him or her.
(705 ILCS 405/5-5.5-130 new)
Sec. 5-5.5-130. Fitness hearing.
(a) The court shall conduct a hearing to determine the
minor's fitness within 14 days of receipt of the final written
report unless agreed upon by all parties or for good cause
shown; in which case the hearing shall be conducted no later
than 45 days of receipt of the final written report of the
person or persons conducting the examination or upon conclusion
of the matter then pending before it, subject to continuances
allowed under, Section 114-4 of the Code of Criminal Procedure
of 1963.
(b) Subject to the rules of evidence, matters admissible on
the issue of the minor's fitness include, but are not limited

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to, the following:
(1) the minor's knowledge and understanding of the
charge, the proceedings, the consequences of a plea,
judgment, or sentence, and the functions of the
participants in the trial process;
(2) the minor's ability to observe, recollect, and
relate occurrences, especially those concerning the
incidents alleged, and to communicate with and assist
counsel;
(3) the minor's social behavior and abilities;
orientation as to time and place; recognition of persons,
places, and things; and performance of motor processes; and
strengths and weaknesses as they relate to the necessary
abilities to be fit; and
(4) the relationship between the minor's fitness
deficits and any mental or physical condition or
developmental immaturity.
(c) The minor has the right to be present at every hearing
on the issue of his or her fitness. The minor's presence may be
waived only if there is filed with the court a certificate
stating that the minor is physically unable to be present and
the reasons therefor. The certificate shall be signed by a
licensed physician who, within 7 days, has examined the minor.
(d) On the basis of the evidence before it, the court or
jury shall determine whether the minor is fit to stand trial or
to plead. If it finds that the minor is unfit, the court or the

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jury shall determine whether there is substantial probability
that the minor, if provided with a course of treatment, will
attain fitness within one year. If the court or the jury finds
that there is not a substantial probability, the court shall
proceed as provided in Section 5-5.5-165. If the probability is
found or if the court or the jury is unable to determine
whether a substantial probability exists, the court shall order
the minor to undergo treatment for the purpose of rendering him
fit. In the event that a minor is ordered to undergo treatment
when there has been no determination as to the probability of
his or her attaining fitness, the court shall conduct a hearing
as soon as possible following the receipt of the report filed
under paragraph (d) of Section 5-5.5-135, unless the hearing is
waived by the defense, and shall make a determination as to
whether a substantial probability exists.
(e) An order finding the minor unfit is a final order for
purposes of appeal by the State or the minor.
(705 ILCS 405/5-5.5-135 new)
Sec. 5-5.5-135. Commitment for treatment; treatment plan.
(a) The court shall select the least physically restrictive
form of treatment therapeutically appropriate and consistent
with the treatment recommendations.
(b) When a minor's finding of unfitness is based upon
mental illness, developmental disability, developmental
immaturity, or physical limitations, the court may order the

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minor placed under the supervision of the Department of Human
Services which shall place and maintain the minor in a suitable
treatment program or facility, or the court may order the minor
placed in an appropriate public or private treatment program or
facility which has agreed to provide treatment to the minor.
The placement may be ordered either on an outpatient or
inpatient basis, whichever is therapeutically appropriate and
least restrictive.
(c) If the minor's disability is physical, the court may
order the minor placed under the supervision of the Department
of Human Services which shall place and maintain the minor in a
suitable treatment facility or program, or the court may order
the minor placed in an appropriate public or private facility
or treatment program which has agreed to provide treatment to
the minor. The placement may be ordered either on an inpatient
or an outpatient basis, whichever is therapeutically
appropriate and least restrictive.
(d) The clerk of the circuit court shall transmit to the
Department, agency, or institution, if any, to which the minor
is remanded for treatment, the following:
(1) a certified copy of the order to undergo treatment;
(2) the county and municipality where the offense is
alleged to have been committed;
(3) the county and municipality in which the arrest
took place;
(4) a copy of the arrest report, criminal charges,

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arrest record, jail record, and the report prepared under
Section 5-5.5-125; and
(5) any 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 minor'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 minor and indicating his or her
opinion as to the probability of the minor'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 minor will attain fitness within the time
period, the treatment supervisor shall also file a treatment
plan which shall include:
(1) a diagnosis of the minor's disability;
(2) a description of treatment goals with respect to
rendering the minor fit, a specification of the proposed
treatment modalities, and an estimated timetable for
attainment of the goals; and
(3) an identification of the person in charge of
supervising the minor's treatment.
(705 ILCS 405/5-5.5-140 new)
Sec. 5-5.5-140. Progress reports.
(a) The treatment supervisor shall submit a written

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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 minor's fitness;
(2) whenever he or she believes that the minor has
attained fitness; or
(3) whenever he or she believes that there is not a
substantial probability that the minor will attain
fitness, with treatment, within 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 minor has attained fitness or as to whether the
minor is making progress, under treatment, toward
attaining fitness within one year from the date of the
original finding of unfitness; and
(3) if the minor is receiving medication, information
from the prescribing physician indicating the type, the
dosage, and the effect of the medication on the minor's
appearance, actions, and demeanor.
(705 ILCS 405/5-5.5-145 new)
Sec. 5-5.5-145. Records. Any report filed of record with
the court concerning diagnosis, treatment, or treatment plans
made under this Article shall not be placed in the minor's

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court record but shall be maintained separately by the clerk of
the court and shall be available only to the court or an
appellate court, the State, the defense, a facility or program
which is providing treatment to the minor under an order of the
court, or other persons as the court may direct.
(705 ILCS 405/5-5.5-150 new)
Sec. 5-5.5-150. 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 minor's fitness not more than 90 days
thereafter. In addition, whenever the court receives a report
from the supervisor of the minor's treatment under paragraph
(2) or (3) of subsection (a) of Section 5-5.5-140, the court
shall immediately set the matter for a first hearing within 14
days unless good cause is shown 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 minor is fit to stand trial or to
plead; and if not,
(2) whether the minor is making progress under
treatment toward attainment of fitness within one year from
the date of the original finding of unfitness.
(b) If the court finds the minor to be fit under this
Section, the court shall set the matter for trial; however, if

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the minor is in need of continued care or treatment and the
supervisor of the minor'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 minor by the
facility or program pending the conclusion of the criminal
proceedings.
(c) If the court finds that the minor is still unfit but
that he or she is making progress toward attaining fitness, the
court may continue or modify its original treatment order
entered under Section 5-5.5-135.
(d) If the court finds that the minor is still unfit and
that he or she is not making progress toward attaining fitness
such that there is not a substantial probability that he or she
will attain fitness within one year from the date of the
original finding of unfitness, the court shall proceed under
Section 5-5.5-165. However, if the minor is in need of
continued care and treatment and the supervisor of the minor'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.
(705 ILCS 405/5-5.5-155 new)
Sec. 5-5.5-155. Medication.
(a) A minor who is receiving psychotropic medication shall
not be presumed to be unfit to stand trial solely by virtue of

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the receipt of those drugs or medications.
(b) Whenever a minor 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 minor. The report
shall state the type and dosage of the minor'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 the medication is provided according
to the directions of the prescribing physician or until
superseded by order of a physician who has examined the minor.
(c) If a minor who is deemed incompetent is in need of
medication, care will be taken by the treatment provider to
provide the medicine expected to assist in the restoration of
competency, whether or not that medication is on the formulary.
(705 ILCS 405/5-5.5-160 new)
Sec. 5-5.5-160. Trial with special provisions and
assistance.
(a) On motion of the minor, the State, or on the court's
own motion, the court shall determine whether special
provisions or assistance will render the minor fit to stand
trial as defined in Section 5-5.5-101.
(b) The special provisions or assistance may include but
are not limited to:
(1) Appointment of qualified translators who shall

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simultaneously translate all testimony at trial into
language understood by the minor.
(2) Appointment of experts qualified to assist a minor
who because of a disability is unable to understand the
proceedings or communicate with his or her attorney.
(c) The case may proceed to trial only if the court
determines that the provisions or assistance compensate for a
minor's disabilities so as to render the minor fit as defined
in Section 5-5.5-101. In that case the court shall state for
the record the following:
(1) the qualifications and experience of the experts or
other persons appointed to provide special assistance to
the minor;
(2) the court's reasons for selecting or appointing the
experts or other persons to provide the special assistance
to the minor;
(3) how the appointment of the expert or other persons
will serve the goal of rendering the minor fit in view of
the appointee's qualifications and experience, taken in
conjunction with the particular disabilities of the minor;
and
(4) any other factors considered by the court in
appointing that expert or person.
(705 ILCS 405/5-5.5-165 new)
Sec. 5-5.5-165. Unfit minors. Cases involving an unfit

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minor who demands a discharge hearing or a minor who cannot
become fit to stand trial and for whom no special provisions or
assistance can compensate for his or her disability and render
the minor fit shall proceed in the following manner:
(1) Upon a determination that there is not a substantial
probability that the minor will attain fitness within one year
from the original finding of unfitness, a minor or the attorney
for the minor may move for a discharge hearing under the
provisions of Section 5-5.5-175. 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 minor.
(2) If at any time the court determines that there is not a
substantial probability that the minor 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 minor still unfit and for whom no
special provisions or assistance can compensate for his or her
disabilities and render the minor fit, the State shall request
the court:
(A) to set the matter for hearing under Section
5-5.5-175 unless a hearing has already been held under
paragraph (1) of this Section; or
(B) to release the minor from custody and to dismiss
with prejudice the charges against the minor; or
(C) to remand the minor to the custody of the
Department of Human Services and order a hearing to be

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conducted under the provisions of the Mental Health and
Developmental Disabilities Code. The Department of Human
Services shall have 7 days from the date it receives the
minor to prepare and file the necessary petition and
certificates that are required for commitment under the
Mental Health and Developmental Disabilities Code. If the
minor is committed to the Department of Human Services
under the hearing, the court having jurisdiction over the
criminal matter shall dismiss the charges against the
minor, with the leave to reinstate. In those cases the
Department of Human Services shall notify the court, the
State's Attorney, and the defense attorney upon the
discharge of the minor. A former minor 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 minor who is not committed shall
be remanded to the court having jurisdiction of the
criminal matter for disposition under subparagraph (A) or
(B) of paragraph (2) of this Section.
(3) If the minor is restored to fitness and the original
charges against the minor are reinstated, the speedy trial
provisions of Section 103-5 of the Code of Criminal Procedure
of 1963 shall commence to run.

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(705 ILCS 405/5-5.5-170 new)
Sec. 5-5.5-170. Time credit. Time spent in custody under
orders issued under Section 5-5.5-135 or 5-5.5-150 or pursuant
to a commitment to the Department of Human Services following a
finding of unfitness or incompetency under prior law, shall be
credited against any sentence imposed on the minor in the
pending criminal case or in any other case arising out of the
same conduct.
(705 ILCS 405/5-5.5-175 new)
Sec. 5-5.5-175. Discharge hearing.
(a) As provided for in paragraph (1) of Section 5-5.5-165
and subparagraph (A) of paragraph (2) of Section 5-5.5-165 a
hearing to determine the sufficiency of the evidence shall be
held. The hearing shall be conducted by the court without a
jury. The State and the minor may introduce evidence relevant
to the question of minor'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 minor guilty beyond
a reasonable doubt, the court shall enter a judgment of
acquittal; however, nothing in this Article shall prevent the
State from requesting the court to commit the minor to the

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Department of Human Services under the provisions of the Mental
Health and Developmental Disabilities Code.
(c) If the minor 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 minor may be remanded for further
treatment and the one year time limit set forth in Section
5-5.5-165 shall be extended as follows:
(1) if the most serious charge upon which the State
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; or
(2) if the State sustained its burden of proof on a
charge of first degree murder, the treatment period may be
extended up to a maximum treatment period of 5 years.
(e) Transcripts of testimony taken at a discharge hearing
may be admitted in evidence at a subsequent trial of the minor,
subject to the rules of evidence, if the witness who gave the
testimony is legally unavailable at the time of the subsequent
trial.
(f) If the court fails to enter an order of acquittal the
minor may appeal from the judgment in the same manner provided

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for an appeal from a conviction in a criminal case.
(g) At the expiration of an extended period of treatment
ordered under this Section:
(1) Upon a finding that the minor is fit or can be
rendered fit consistent with Section 5-5.5-160, the court
may proceed with trial.
(2) If the minor continues to be unfit to stand 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 minor 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 minor shall be
required to approve any conditional release or discharge of
the minor, for the period of commitment equal to the
maximum sentence to which the minor 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 minor shall hold hearings under
subparagraph (A) of this paragraph (2). However, if the
minor is remanded to the Department of Human Services, the
minor shall be placed in a secure setting unless the court
determines that there are compelling reasons why the
placement is not necessary. If the minor does not have a

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current treatment plan, then within 3 days of admission
under this paragraph (2), a treatment plan shall be
prepared for the minor and entered into his or her record.
The plan shall include (i) an assessment of the minor'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. Every 90 days after the initial admission under this
paragraph (2), the facility director shall file a typed
treatment plan report with the original court having
jurisdiction over the minor. The report shall include an
opinion as to whether the minor is fit to stand trial and
whether the minor 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 minor's attorney if the minor is
represented by counsel.
The court on its own motion may order a hearing to review

09800HB0787ham001 - 24 - LRB098 03615 RLC 43778 a
the treatment plan. The minor 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 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 the an examination. Under no
circumstances shall the court be required to order an
independent examination under 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. If, during the
period within which the minor is confined in a secure setting,
the court enters an order that requires the minor 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 minor resides authorizing the
transportation of the minor to the court for the purpose of the
hearing.
(A) 180 days after a minor is remanded to the
Department of Human Services, under paragraph (2), and
every 180 days thereafter for so long as the minor is
confined under the order entered thereunder, the court

09800HB0787ham001 - 25 - LRB098 03615 RLC 43778 a
shall set a hearing and shall direct that notice of the
time and place of the hearing be served upon the minor, the
facility director, the State's Attorney, and the minor'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 minor 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 minor is not currently represented by
counsel the court shall appoint counsel to represent the
minor at the hearing. The court shall make a finding as to
whether the minor is:
(i) subject to involuntary admission;
(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 involuntary admission nor inpatient care.
The findings of the court shall be established by 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.
(B) The terms "subject to involuntary admission", "in need

09800HB0787ham001 - 26 - LRB098 03615 RLC 43778 a
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 paragraph (3) of subsection (d) of
Section 5-2-4 of the Unified Code of Corrections.
(3) If the minor is not committed under this Section,
he or she shall be released.
(4) In no event may the treatment period be extended to
exceed the maximum sentence to which a minor 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 (730 ILCS
5/5-8-1) or Article 4.5 of Chapter V of the Unified Code of
Corrections, excluding any sentence of natural life. The
treatment period cannot extend beyond the jurisdiction of
this Act.
(705 ILCS 405/5-5.5-180 new)
Sec. 5-5.5-180. Disposition of minors suffering
disabilities.
(a) A minor convicted following a trial conducted under the
provisions of Section 5-5.5-160 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 under Sections 5-3-2, 5-3-3, and 5-3-4 of the Unified
Code of Corrections and shall include a physical and mental

09800HB0787ham001 - 27 - LRB098 03615 RLC 43778 a
examination unless the court finds that the reports of prior
physical and mental examinations conducted under this Article
are adequate and recent enough so that additional examinations
would be unnecessary.
(b) A minor convicted following a trial under Section
5-5.5-160 shall not be subject to the death penalty.
(c) A minor convicted following a trial under Section
5-5.5-160 shall be sentenced according to the procedures and
dispositions authorized under the Unified Code of Corrections
subject to the following provisions:
(1) The court shall not impose a sentence of
imprisonment upon the minor if the court believes that
because of his or her disability a sentence of imprisonment
would not serve the ends of justice and the interests of
society and the minor or that because of his or her
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 minor undergo
treatment appropriate to his or her mental or physical
condition.
(2) After imposing a sentence of imprisonment upon a
minor who has a mental disability, the court may remand him
or her to the custody of the Department of Human Services
and order a hearing to be conducted under the provisions of
the Mental Health and Developmental Disabilities Code. If

09800HB0787ham001 - 28 - LRB098 03615 RLC 43778 a
the minor is committed following the hearing, he or she
shall be treated in the same manner as any other civilly
committed patient for all purposes except as provided in
this Section. If the minor is not committed under the
hearing, he or she shall be remanded to the sentencing
court for disposition according to the sentence imposed.
(3) If the court imposes a sentence of imprisonment
upon a minor who has a mental disability but does not
proceed under paragraph (2) of subsection (c) of this
Section, it shall order the Department of Corrections to
proceed under Section 3-8-5 of the Unified Code of
Corrections.
(4) If the court imposes a sentence of imprisonment
upon a minor who has a physical disability, it may
authorize the Department of Corrections to place the minor
in a public or private facility which is able to provide
care or treatment for the minor's disability and which
agrees to do so.
(5) When a minor is placed with the Department of Human
Services or another facility under paragraph (2) or (4) of
this subsection (c), the Department or private facility
shall not discharge or allow the minor to be at large in
the community without prior approval of the court. If the
minor is placed in the custody of the Department of Human
Services, the minor shall be placed in a secure setting
unless the court determines that there are compelling

09800HB0787ham001 - 29 - LRB098 03615 RLC 43778 a
reasons why the placement is not necessary. The minor shall
accrue good time and shall be eligible for parole in the
same manner as if he or she were serving his or her
sentence within the Department of Corrections. When the
minor no longer requires hospitalization, care, or
treatment, the Department of Human Services or the facility
shall transfer him or her, if his or her sentence has not
expired, to the Department of Corrections. If a minor 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 minor was held.
(6) The Department of Corrections shall notify the
Department of Human Services or a facility in which a minor
has been placed under paragraph (2) or (4) of subsection
(c) of this Section of the expiration of his or her
sentence. Thereafter, a minor in the Department of Human
Services shall continue to be treated under his commitment
order and shall be considered a civilly committed patient
for all purposes including discharge. A minor who is in a
facility under paragraph (4) of subsection (c) of this
Section shall be informed by the facility of the expiration
of his or her sentence, and shall either consent to the
continuation of his or her care or treatment by the
facility or shall be discharged.

09800HB0787ham001 - 30 - LRB098 03615 RLC 43778 a
(705 ILCS 405/5-5.5-185 new)
Sec. 5-5.5-185. Minors found unfit prior to the effective
date of this Article; reports; appointment of counsel.
(a) Within 180 days after the effective date of this
Article, the Department of Human Services shall compile a
report on each minor under its custody who was found unfit or
incompetent to stand trial or to be sentenced prior to the
effective date of this Article. Each report shall include the
minor's name, indictment and warrant numbers, the county of his
or her commitment, the length of time he or she has been
hospitalized, the date of his or her last fitness hearing, and
a report on his or her present status as provided in Section
5-5.5-140.
(b) The reports shall be forwarded to the Supreme Court
which shall distribute copies thereof to the chief judge of the
court in which the criminal charges were originally filed, to
the State's Attorney and the public defender of the same
county, and to the minor's attorney of record, if any. Notice
that the report has been delivered shall be given to the minor.
(c) Upon receipt of the report, the chief judge shall
appoint the public defender or other counsel for each minor who
is not represented by counsel and who is indigent under Section
113-3 of the Code of Criminal Procedure of 1963. The court
shall provide the minor's counsel with a copy of the report.

09800HB0787ham001 - 31 - LRB098 03615 RLC 43778 a
(705 ILCS 405/5-5.5-190 new)
Sec. 5-5.5-190. Disposition of minors found unfit prior to
the effective date of this Article.
(a) Upon reviewing the report, the court shall determine
whether the minor has been in the custody of the Department of
Human Services for a period of time equal to the length of time
that the minor would have been required to serve, less good
time, before becoming eligible for parole or mandatory
supervised release had he or she been convicted of the most
serious offense charged and had he or she received the maximum
sentence therefor. If the court so finds, it shall dismiss the
charges against the minor, with leave to reinstate. If the
minor has not been committed under the Mental Health and
Developmental Disabilities Code, the court shall order him or
her discharged or shall order a hearing to be conducted
immediately under the provisions of the Code. If the minor was
committed under the Code, he or she shall continue to be
treated under his or her commitment order and shall be
considered a civilly committed patient for all purposes
including discharge.
(b) If the court finds that a minor has been in the custody
of the Department of Human Services for a period less than that
specified in paragraph (a) of this Section, the court shall
conduct a hearing under Section 5-5.5-150 immediately to
redetermine the issue of the minor's fitness to stand trial or
to plead. If the minor is fit, the matter shall be set for

09800HB0787ham001 - 32 - LRB098 03615 RLC 43778 a
trial. If the court finds that the minor is unfit, it shall
proceed under Section 5-5.5-150 or 5-5.5-165; however, a minor
who is still unfit and who has been in the custody of the
Department of Human Services for a period of more than one year
from the date of the finding of unfitness shall be immediately
subject to the provisions of Section 5-5.5-165.
(705 ILCS 405/5-5.5-195 new)
Sec. 5-5.5-195. Conflict. In the event of any conflict
between this Article and the Mental Health and Developmental
Disabilities Code, the provisions of this Article shall govern.
(705 ILCS 405/5-5.5-200 new)
Sec. 5-5.5-200. Notice to law enforcement agencies
regarding release of minors.
(a) Prior to the release by the Department of Human
Services of any person admitted under any provision of this
Article, the Department of Human Services shall give written
notice to the sheriff of the county where the minor was
admitted. In cases where the arrest of the minor or the
commission of the offense took place in any municipality with a
population of more than 25,000, the Department of Human
Services shall also give written notice to the proper law
enforcement agency for the municipality, provided the
municipality has requested the notice in writing.
(b) Where a minor in the custody of the Department of Human

09800HB0787ham001 - 33 - LRB098 03615 RLC 43778 a
Services under any provision of this Article is released under
an order of court, the clerk of the circuit court shall, after
the entry of the order, transmit a certified copy of the order
of release to the Department of Human Services and the Sheriff
of the county where the minor was admitted. In cases where the
arrest of the minor or the commission of the offense took place
in any municipality with a population of more than 25,000, the
clerk of the circuit court shall also send a certified copy of
the order of release to the proper law enforcement agency for
the municipality provided the municipality has requested the
notice in writing.
(705 ILCS 405/5-5.5-205 new)
Sec. 5-5.5-205. Security and transportation. No minor
placed in a setting of the Department of Human Services under
the provisions of Sections 5-5.5-135, 5-5.5-175, or 5-5.5-180
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 minor placed in a
secure setting under 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 minor and the
safety of Department of Human Services personnel and others.
These security measures shall not constitute restraint as

09800HB0787ham001 - 34 - LRB098 03615 RLC 43778 a
defined in the Mental Health and Developmental Disabilities
Code. Nor shall any minor be permitted any off-grounds
privileges, either with or without escort by personnel of the
Department of Human Services, any unsupervised on-ground
privileges, or placement in a non-secure setting unless the
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 the conditions on
the minor as the court may deem appropriate and necessary to
reasonably assure the minor's satisfactory progress in
treatment and the safety of the minor or others. Whenever the
court receives a report from the supervisor of the minor's
treatment recommending the minor 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 shown why the
hearing cannot be held. The changes made to this Section by
this amendatory Act of the 98th General Assembly are
declarative of existing law and shall not be construed as a new
enactment.".