Bill Text: IL SB3368 | 2023-2024 | 103rd General Assembly | Introduced

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Bill Title: Amends the Delinquent Minors Article of the Juvenile Court Act of 1987. Adds a Part concerning fitness to stand trial. Specifies the unfitness standard for a child. Sets forth procedures to raise the issue of the unfitness of a child. Provides for the legal disposition of a child if fitness cannot be attained. Provides that no facility of the Department of Human Services shall be utilized for performing a fitness evaluation. Provides that the child's counsel must be allowed to be present at the evaluation conducted, if requested by the child's counsel. Provides that when the court orders services to attain fitness, the court shall determine if the child will receive services on an inpatient or outpatient basis. If inpatient, the child shall be placed at a facility approved by the Department of Human Services to provide residential, restoration care and treatment. Provides that if the court orders the child to receive services on an outpatient basis, such services shall be rendered in the community at a program approved by the Department of Human Services. Provides that for a child charged with a misdemeanor, the maximum total period shall be no longer than the length of the sentence that could be imposed if the child were adjudicated delinquent of the misdemeanor offense for which the child was charged, or one year whichever is shorter. Contains a severability provision. Effective July 1, 2024.

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Introduced) 2024-03-07 - Added as Chief Co-Sponsor Sen. Ann Gillespie [SB3368 Detail]

Download: Illinois-2023-SB3368-Introduced.html

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103RD GENERAL ASSEMBLY State of Illinois 2023 and 2024 SB3368 Introduced 2/7/2024, by Sen. Lakesia Collins SYNOPSIS AS INTRODUCED:
See Index
Amends the Delinquent Minors Article of the Juvenile Court Act of 1987. Adds a Part concerning fitness to stand trial. Specifies the unfitness standard for a child. Sets forth procedures to raise the issue of the unfitness of a child. Provides for the legal disposition of a child if fitness cannot be attained. Provides that no facility of the Department of Human Services shall be utilized for performing a fitness evaluation. Provides that the child's counsel must be allowed to be present at the evaluation conducted, if requested by the child's counsel. Provides that when the court orders services to attain fitness, the court shall determine if the child will receive services on an inpatient or outpatient basis. If inpatient, the child shall be placed at a facility approved by the Department of Human Services to provide residential, restoration care and treatment. Provides that if the court orders the child to receive services on an outpatient basis, such services shall be rendered in the community at a program approved by the Department of Human Services. Provides that for a child charged with a misdemeanor, the maximum total period shall be no longer than the length of the sentence that could be imposed if the child were adjudicated delinquent of the misdemeanor offense for which the child was charged, or one year whichever is shorter. Contains a severability provision. Effective July 1, 2024.
LRB103 38627 RLC 68764 b
A BILL FOR
SB3368 LRB103 38627 RLC 68764 b
AN ACT concerning courts.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Juvenile Court Act of 1987 is amended by
adding Part 5A to Article V as follows:
(705 ILCS 405/Art. V Pt. 5A heading new)
PART 5A. FITNESS TO STAND TRIAL
(705 ILCS 405/5-5A-101 new)
Sec. 5-5A-101. Purpose. This Part recognizes that children
are substantially different from adults and therefore creates
procedures to establish fitness to stand trial that
accommodate these differences. This Part is intended to
support children through practices that are trauma-informed
and that protect children's rights and dignity; questions of
interpretation shall be resolved in line with these practices.
This Part recognizes that the ability to understand charges
and to participate meaningfully in one's own defense evolve
gradually throughout childhood and early adulthood and that
each child deserves developmentally appropriate responses that
reflect the best understanding of the child's current
abilities.

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(705 ILCS 405/5-5A-105 new)
Sec. 5-5A-105. Definitions. As used in this Part:
"Child" means a person under the age of 21, regardless of
whether the person is subject to this Act or prosecuted under
the criminal laws of this State.
"Child traumatic stress" means exposure to one or more
traumatic events over the course of a child's life that result
in that child developing reactions that persist and that
interfere with the child's functional, social, adaptive, or
intellectual ability.
"Chronological immaturity" means a lack of functional,
social, adaptive, or intellectual ability due to chronological
age.
"Developmental disability" means a disability that is
attributable to an intellectual disability, cerebral palsy,
epilepsy, autism, a learning disability, or any other
condition that results in impaired functional, social,
adaptive, or intellectual ability.
"Mental illness" means a mental or emotional disorder that
substantially impairs a person's thought, perception of
reality, emotional process, judgment, behavior, or ability to
cope with the ordinary demands of life.
"Relative immaturity" means a lack of functional, social,
adaptive, or intellectual ability when a child is compared to
other children of the same chronological age.
"Substance use disorder" has the meaning given to that

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term in Section 1-10 of the Substance Use Disorder Act.
(705 ILCS 405/5-5A-110 new)
Sec. 5-5A-110. Unfitness standard. Unfitness may result
from the presence of any condition or confluence of
conditions, including, but not limited to, mental illness,
substance use disorder, developmental disability,
chronological immaturity, relative immaturity, or child
traumatic stress. Other than chronological immaturity, any of
these conditions could look differently in similarly aged
children. A diagnosis is not required for a finding of
unfitness. A child is unfit when the child either:
(1) lacks sufficient present ability to consult with the
child's attorney with a reasonable degree of rational
understanding, as evidenced by lacking the ability to disclose
to the attorney facts pertinent to the proceedings at issue
and to assist in the child's defense; or
(2) lacks a rational or a factual understanding of the
proceedings against the child, as evidenced by any one or more
of the following:
(A) a lack of ability to identify who the participants
are, including the judge, child's attorney, State's
Attorney, or qualified expert;
(B) a lack of ability to differentiate the multiple
roles a single participant could serve in different
proceedings the child is involved in;

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(C) a lack of understanding of the allegations in the
petition for adjudication of delinquency;
(D) a lack of understanding of the range of possible
dispositions that may be imposed in the proceedings;
(E) a lack of ability to use the factual
understandings and factors in (A) through (D) of this
paragraph to make rational decisions; or
(F) a lack of any other factors that a qualified
expert deems relevant.
(705 ILCS 405/5-5A-115 new)
Sec. 5-5A-115. Raising the issue of unfitness.
(a) The issue of the child's fitness to stand trial, to
plead, or to be sentenced may be raised by the child's
attorney, the State, or the court at any time before a plea is
entered or before, during, or after trial.
(b) When the issue of the child's fitness is raised, the
court must determine whether there is a bona fide doubt that
the child is fit. The court shall find a bona fide doubt when
evidence is presented or proffered that suggests that the
child could be unfit. If the court finds that there is a bona
fide doubt, the court shall order a fitness evaluation under
Section 5-5A-125 before proceeding further. Nothing in this
Section shall operate to extinguish any rights of a child
established by attorney-client privilege.
(c) When a child is being prosecuted under the criminal

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laws of this State under Section 5-130 or 5-805, the criminal
court shall apply the fitness standards in this Part. If the
issue of the child's fitness is raised prior to the resolution
of a transfer proceeding under Section 5-805, the juvenile
court shall apply the fitness standards as set forth in this
Part.
(705 ILCS 405/5-5A-120 new)
Sec. 5-5A-120. Burdens and presumptions. In making
determinations concerning a child's fitness, the following
burdens of proof and presumptions shall apply:
(1) when the court finds a bona fide doubt as to the
fitness of a child under Section 5-5A-115, the State bears
the burden of proving that the child is fit by clear and
convincing evidence; and
(2) a child who is receiving medication shall not be
presumed to be fit or unfit to stand trial solely by virtue
of the receipt of that medication.
(705 ILCS 405/5-5A-125 new)
Sec. 5-5A-125. Fitness evaluation. When the court orders a
fitness evaluation under subsection (b) of Section 5-5A-115,
the court must appoint one or more qualified experts under
Section 5-5A-135. Each expert must evaluate whether the child
is fit and must submit a report of the expert's findings to the
court under Section 5-5A-160. No expert employed or contracted

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by the Department of Human Services shall be ordered to
perform, in the expert's official capacity, an initial fitness
examination under this Section.
(705 ILCS 405/5-5A-130 new)
Sec. 5-5A-130. Location of evaluation. A fitness
evaluation ordered under subsection (b) of Section 5-5A-115
must be conducted in the least restrictive environment for the
child. The evaluation must be conducted in person whenever
possible. Video technology for a remote evaluation may be used
only as a last resort. If video technology is used, it must be
a secure platform. No facility of the Department of Human
Services shall be utilized for this purpose.
(705 ILCS 405/5-5A-135 new)
Sec. 5-5A-135. Qualification of experts. An expert
evaluating the child under Section 5-5A-125 must either be a
licensed clinical psychologist or psychiatrist with training
and experience in forensics, child development, and child
trauma.
(705 ILCS 405/5-5A-140 new)
Sec. 5-5A-140. Timeline for evaluation. The fitness
evaluation ordered under subsection (b) of Section 5-5A-115
and report written under Section 5-5A-160 must be completed
within 30 days of a court order entered pursuant to subsection

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(b) of Section 5-5A-115. The time for completion of the
fitness evaluation may be extended an additional 30 days for
good cause if the child is not in custody.
(705 ILCS 405/5-5A-145 new)
Sec. 5-5A-145. Counsel at evaluation. The child's counsel
must be allowed to be present at the evaluation conducted, if
requested by the child's counsel, under Section 5-5A-125.
(705 ILCS 405/5-5A-150 new)
Sec. 5-5A-150. Statements made during evaluation. No
statement made by the child during the evaluation conducted
under Section 5-5A-125 shall be used against the child in the
current court proceedings or in any future proceedings. No
statement made by the child relating to the alleged offense or
other offenses shall be included in the report required under
Section 5-5A-160. The court must advise the child before the
evaluation takes place that no statement made during the
evaluation shall be used against the child.
(705 ILCS 405/5-5A-155 new)
Sec. 5-5A-155. Recordings of evaluations and privacy.
(a) An evaluation of the child conducted under Section
5-5A-125 shall be video recorded.
(b) The video recording of a fitness evaluation is
confidential and may be viewed only by the court, the expert

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conducting the evaluation defined in Section 5-5A-125, the
child's attorney, the State, and any other expert in the
proceedings deemed necessary by the court and under Section
5-910.
(705 ILCS 405/5-5A-160 new)
Sec. 5-5A-160. Contents of evaluation report.
(a) When an evaluation is conducted under Section
5-5A-125, the appointed expert must submit a written report of
the findings to the court. The evaluation report must detail
the methods and tools used during the evaluation and be made in
writing.
(b) The evaluation report must contain:
(1) An assessment of any mental illness, substance use
disorder, or developmental disability of the child,
including:
(A) the results of a mental status exam;
(B) a description of the history and current
status of any symptoms of any mental illness or
developmental disability, or both (a diagnosis is not
required);
(2) an assessment of the child's chronological and
relative immaturity;
(3) an assessment of any child traumatic stress,
including a description of the child's history of exposure
to traumatic events;

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(4) an assessment of any other condition of the child
that could impact the child's functional abilities related
to fitness to stand trial;
(5) an assessment of the child's rational and factual
understandings related to fitness to stand trial, the
unfitness standard in Section 5-5A-110, and the
relationship of these abilities to any conditions of the
child as assessed in paragraphs (1) through (4);
(6) whether the expert, based on the evaluation and in
the expert's professional judgment, believes the child is
fit;
(7) if the expert believes that the child is unfit,
whether the expert believes there is a substantial
probability that the child will attain fitness within the
statutory period to attain fitness;
(8) recommendations, if the expert believes the child
is unfit, including:
(A) services that would help the child attain
fitness;
(B) placement for services to attain fitness; and
(C) risk assessments needed prior to placement;
and
(9) opinions on:
(A) the likelihood of the success of the services
recommended; and
(B) the length of time anticipated to attain

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fitness.
(705 ILCS 405/5-5A-165 new)
Sec. 5-5A-165. Hearing to determine fitness.
(a) When a bona fide doubt of fitness has been raised, the
court shall conduct a hearing to determine the issue of the
child's fitness within 30 days of receipt of the evaluation
report described in Section 5-5A-160, unless the timeline is
waived by the child's counsel.
(b) The child has the right to be present at every hearing
on the issue of the child's fitness.
(c) On the basis of the evidence before it, the court must
determine whether the child is unfit to stand trial pursuant
to Section 5-5A-110. If the court finds that the child is
unfit, the court shall determine:
(1) whether in-court assistance under Section 5-5A-190
would render the child fit; and
(2) whether there is a substantial probability that
the child, if provided with services to attain fitness
under Section 5-5A-170, will attain fitness within the
period to attain fitness set forth in Section 5-5A-175.
(d) If the court finds that the child is unfit and there is
not a substantial probability the child will attain fitness
within the statutory period as set forth in Section 5-5A-175,
the court shall proceed under Section 5-5A-210.
(e) If the court finds the child is unfit but that there is

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a substantial probability that the child will become fit
within the period to attain fitness set forth in Section
5-5A-175, or if the court is unable to determine whether a
substantial probability exists, the court shall order the
child to receive services to attain fitness at a placement
under Section 5-5A-170. If the court is unable to determine
whether a substantial probability exists and orders the child
to receive services to attain fitness, the court shall conduct
a hearing as soon as possible following the receipt of the
report filed under Section 5-5A-180 to determine whether there
is a substantial probability that the child will attain
fitness within the statutory period.
(f) If the court finds that the child is unfit to stand
trial, it shall proceed under this Act. If the court finds that
the child could be rendered fit with in-court assistance, the
court shall order in-court assistance pursuant to Section
5-5A-190.
(g) An order finding the child unfit to stand trial is a
final order for purposes of appeal by the State or the child.
(705 ILCS 405/5-5A-170 new)
Sec. 5-5A-170. Services to attain fitness.
(a) When the court orders services to attain fitness under
Section 5-5A-165, the court shall determine if the child will
receive services on an inpatient or outpatient basis. If
inpatient, the child shall be placed at a facility approved by

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the Department of Human Services to provide residential,
restoration care and treatment. If the court orders the child
to receive services on an outpatient basis, such services
shall be rendered in the community at a program approved by the
Department of Human Services. Court-ordered services and
placements shall be consistent with the recommendations in the
evaluation report. All services shall be trauma-informed,
developmentally appropriate, and provided in the least
restrictive environment considering the needs and best
interests of the child. A placement may be ordered on an
inpatient basis only when the child exhibits needs warranting
a hospital level of care.
(b) Within 5 days of a court order for services to attain
fitness entered under Section 5-5A-165, the clerk of the
circuit court shall transmit, to the Department of Human
Services, and any other agency or institution providing
services to attain fitness to the child, the following:
(1) a certified copy of the order to receive services
and the complete copy of any report on the child's fitness
prepared under this Part;
(2) the county and municipality in which the alleged
offense occurred;
(3) the county and municipality in which the arrest
took place;
(4) a copy of the arrest report, charges, and arrest
record; and

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(5) all additional matters that the court directs the
clerk to transmit.
(705 ILCS 405/5-5A-175 new)
Sec. 5-5A-175. Period to attain fitness. For a child
charged with a felony, the maximum total time a court may order
a child to receive services to attain fitness shall be one
year. For a child charged with a misdemeanor, the maximum
total period shall be no longer than the length of the sentence
that could be imposed if the child were adjudicated delinquent
of the misdemeanor offense for which the child was charged, or
one year whichever is shorter. The period to attain fitness
shall begin with the court's first finding of unfitness during
a fitness hearing under Section 5-5A-165.
(705 ILCS 405/5-5A-180 new)
Sec. 5-5A-180. Initial and subsequent progress reports.
(a) Within 30 days of entry of an order to receive services
to attain fitness under Sections 5-5A-170 and 5-5A-175, the
person in charge of supervising the child's services shall
file with the court an initial report assessing the program's
capacity to provide appropriate services for the child and
indicating the person's opinion as to the probability of the
child attaining fitness within the period to attain fitness
provided in Section 5-5A-175. If the initial report indicates
that there is a substantial probability that the child will

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attain fitness within the allowed statutory period, the
supervisor shall also file a services plan which shall
include:
(1) a description of the goals of services to attain
fitness with respect to rendering the child fit, a
specification of the proposed modalities of services, and
an estimated timetable for attainment of the goals; and
(2) an identification of the person in charge of
supervising the child's services.
(b) The supervisor shall submit a subsequent written
progress report to the court at least 7 days prior to the date
of any hearing on the issue of the child's fitness.
(c) If the supervisor determines that any of the following
circumstances are met, the supervisor shall notify the court
in writing as soon as possible but no later than 7 days after
the determination is made:
(1) if the supervisor believes that the child has
attained fitness;
(2) if the supervisor believes that there is not a
substantial probability that the child will attain
fitness, with services, within the period to attain
fitness under Section 5-5A-175; or
(3) if the supervisor believes a change in services or
placement is necessary.
(d) The initial and subsequent progress reports shall
contain:

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(1) the clinical findings of the supervisor and the
facts upon which the findings are based;
(2) the opinion of the supervisor as to whether the
child has attained fitness and as to whether the child is
making progress, with services, toward attaining fitness
within the period set in Section 5-5A-175;
(3) whether the current services to attain fitness and
placement continue to be in the least restrictive
environment necessary, whether a different level of care
is needed, and the basis for that recommendation; and
(4) any other changes in recommendations of services
to attain fitness.
(e) If the supervisor of the child's services determines,
under paragraph (3) of subsection (d) of this Section, that
the child is not in the least restrictive environment
necessary to attain fitness, upon receipt of the progress
report, the court shall ensure that the child is immediately
moved to the least restrictive environment necessary.
(705 ILCS 405/5-5A-185 new)
Sec. 5-5A-185. Periodic hearings. Upon entry or
continuation of any order to receive services to attain
fitness, the court shall set a date for hearing to reexamine
the issue of the child's fitness not more than 90 days
thereafter. In addition, whenever the court receives a report
from the supervisor of the child's services under subsection

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(c) of Section 5-5A-180, the court shall set the matter for a
hearing within 14 days unless good cause is demonstrated why
the hearing cannot be held. On the date set, the court shall
conduct a hearing to redetermine the child's fitness under
Section 5-5A-165.
(705 ILCS 405/5-5A-190 new)
Sec. 5-5A-190. In-court assistance to render a child fit.
(a) If the court determines that the child could be
rendered fit with in-court assistance under Section 5-5A-165,
the court shall order in-court assistance under subsection
(b). A child found unfit because of chronological immaturity
cannot be rendered fit with in-court assistance. A child found
unfit because of relative immaturity or child traumatic stress
cannot be rendered fit solely with in-court assistance.
(b) In-court assistance may include, but is not limited
to:
(1) appointment of a qualified translator who shall
simultaneously translate all court proceedings into a
language understood by the child; and
(2) appointment of an expert qualified to assist a
child who, because of a disability, is unable to
communicate with the child's attorney.
(c) If in-court assistance is provided, the case may
proceed to trial only if the court determines that in-court
assistance renders the child fit. In such cases, the court

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shall state for the record the following:
(1) the qualifications and experience of the experts
or other persons appointed to provide in-court assistance
to the child;
(2) the court's reasons for selecting or appointing
the particular experts or other persons to provide the
in-court assistance to the child;
(3) how the appointment of the particular expert or
other persons will serve the goal of rendering the child
fit, based on the appointee's qualifications and
experience, and the lack of functional, social, adaptive,
or intellectual abilities of the child; and
(4) any other factors considered by the court in
appointing the experts or other persons.
(d) A child adjudicated delinquent following a trial
conducted with in-court assistance provided under this Section
shall not be sentenced before a written report of social
investigation is presented to and considered by the court. The
written report of social investigation shall be prepared under
Section 5-701 and shall include a physical and mental
examination unless the court finds that the reports of prior
physical and mental examinations conducted under this Part are
adequate and recent enough to render additional examinations
unnecessary.
(705 ILCS 405/5-5A-195 new)

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Sec. 5-5A-195. Time credit. A sentence imposed on the
child in the pending case or in any other case arising out of
the same conduct shall be reduced by time spent:
(1) in custody under orders issued under Section
5-5A-170 or under a commitment to the Department of Human
Services following a finding of unfitness under this Part;
(2) in any court-ordered out-of-home placement;
including, but not limited to, a detention facility,
rehabilitation center, or inpatient hospital; or
(3) home detention or electronic monitoring pursuant
to Section 5-7A-110.
(705 ILCS 405/5-5A-200 new)
Sec. 5-5A-200. Court organization of records. Any report
filed with the court concerning diagnosis, evaluation,
progress, or services made under this Part shall not be placed
in the child's 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 child, the child's
attorney, the child's parent or guardian, or a facility or
program that provides services to the child under an order of
the court. These records of the child shall be privileged and
shall not be disclosed except under the conditions set forth
in Section 5-910. Nothing in this Section shall operate to
extinguish any rights of a child established by law,
including, but not limited to: attorney-client,

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physician-patient, psychologist-client, or social
worker-client privileges, except as otherwise provided by law.
(705 ILCS 405/5-5A-205 new)
Sec. 5-5A-205. Sentencing guidelines for a child who
attains fitness. The court shall not impose a commitment to
the Department of Juvenile Justice upon the child if the court
believes that because of the child's condition, such a
sentence would not be in the interests of society and the
child, or would subject the child to excessive hardship. In
addition to any other conditions of a sentence of conditional
discharge or probation, the court may require that the child
receive additional services for the child's condition.
(705 ILCS 405/5-5A-210 new)
Sec. 5-5A-210. Legal disposition if fitness cannot be
attained. The court shall dismiss the charges against the
child with prejudice if the court finds the child is unfit
under Section 5-5A-165 and that the child:
(1) cannot attain fitness within the period to attain
fitness defined in Section 5-5A-175 or that there is not a
substantial probability that the child will attain fitness
within the period to attain fitness defined under Section
5-5A-175; and
(2) cannot attain fitness with in-court assistance
under Section 5-5A-190.

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(705 ILCS 405/5-5A-215 new)
Sec. 5-5A-215. Follow-up study and recommendations. The
Illinois Juvenile Justice Commission shall develop and
recommend mechanisms to collect and analyze data,
disaggregated by race, ethnicity, gender, geography, age, and
socioeconomic status, resulting from the implementation of
this Part. The report and recommendations shall be submitted
to the General Assembly by January 1, 2024.
Section 97. Severability. The provisions of this Act are
severable under Section 1.31 of the Statute on Statutes.
Section 99. Effective date. This Act takes effect July 1,
2024.
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INDEX
Statutes amended in order of appearance
705 ILCS 405/Art. V Pt. 5A
heading new
705 ILCS 405/5-5A-101 new
705 ILCS 405/5-5A-105 new
705 ILCS 405/5-5A-110 new
705 ILCS 405/5-5A-115 new
705 ILCS 405/5-5A-120 new
705 ILCS 405/5-5A-125 new
705 ILCS 405/5-5A-130 new
705 ILCS 405/5-5A-135 new
705 ILCS 405/5-5A-140 new
705 ILCS 405/5-5A-145 new
705 ILCS 405/5-5A-150 new
705 ILCS 405/5-5A-155 new
705 ILCS 405/5-5A-160 new
705 ILCS 405/5-5A-165 new
705 ILCS 405/5-5A-170 new
705 ILCS 405/5-5A-175 new
705 ILCS 405/5-5A-180 new
705 ILCS 405/5-5A-185 new
705 ILCS 405/5-5A-190 new
705 ILCS 405/5-5A-195 new
705 ILCS 405/5-5A-200 new
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