Key Information

Relevant Statutes and Rules

725 Ill. Comp. Stat. 5/104-10 to 5/104-31

Ill. Supreme Ct. Rule 604 (e) [allows for appeal of an unfitness order]

730 ILCS 5/5-2-5 [allows clinical psychologists to testify as experts re. unfitness]

What proceedings can occur while the defendant is incompetent

"Following a finding of unfitness, the court may hear and rule on any pretrial motion or motions if the defendant'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 defendant's unfitness, when the motion was first decided."  725 Ill. Comp. Stat. 5/104-11(d).

If defendant is found unfit and time runs out or D is found unrestorable, court may hold a hearing to determine the sufficiency of the evidence against the defendant. If evidence does not prove defendant guilty beyond a reasonable doubt, court shall enter judgment of acquittal. If defendant is found not guilty by reason of insanity, court shall enter judgment of acquittal and follow proceedings after insanity acquittal. 725 ILCS 5/104-23; 725 ILCS 5/104-25.
 

Number of examiners required

1 

725 Ill. Comp. Stat. 5/104-13(a), (b)
 

Qualifications of examiners

When issue involves defendant's mental condition: licensed physician, clinical psychologist, or psychiatrist chosen by the court. The court cannot order an employee of Department of Human Services to perform, in his official capacity, the evaluation.  725 Ill. Comp. Stat. 5/104-13(a). 

When issue involves the defendant's physical condition: physicians and such other experts as appropriate. 725 Ill. Comp. Stat. 5/104-13(b).

What must the evaluation report contain

"(1) A diagnosis and an explanation as to how it was reached and the facts upon which it is based;
(2) A description of the defendant's mental or physical disability, if any; its severity; and an opinion as to whether and to what extent it impairs the defendant's ability to understand the nature and purpose of the proceedings against him or to assist in his defense, or both."
(3) What information, if any, contained in the report would be harmful to the mental health of defendant if made known to him.  725 Ill. Comp. Stat. 5/104-15(a), (c).

If report indicates defendant is unfit because of a disability, it shall include an opinion as to the likelihood of the defendant attaining fitness within one year (for a felony) or within the maximum term of imprisonment (for a misdemeanor). 725 Ill. Comp. Stat. Ann. 5/104-15(b).

If the evaluator cannot give an opinion about restorability, the report must state why.  The report may also include  include "a general description of the type of treatment needed and of the least physically restrictive form of treatment therapeutically appropriate." 725 ILCS 5/104-15(b)

If inpatient treatment is recommended, the report must articulate the evaluator's assessment of risk, protective factors, and treatment needs as related to the defendant's mental disorder. Risk shall not be determined solely by the nature of the defendant's criminal charges. 725 ILCS 5/104-15(b)

Are low-level offenses excluded from restoration

Defendants charged with petty offenses or infraction of a municipal ordinance are not eligible for fitness restoration services.

725 Ill. Comp. Stat. Ann. 5/104-15(b)

Is there a pathway for diversion following a finding of incompetence to stand trial

A defendant charged with one or more misdemeanors and for whom a court has determined under Section 104–11 of this Code that a bona fide doubt of the defendant's fitness has been raised may be admitted into an unfit misdemeanant diversion program only upon the approval of the court.

725 Ill. Comp. Stat. Ann. 5/104A-1

What are the locations for restoration services

If defendant is eligible to be released or has been released pretrial, "the court shall select the least physically restrictive form of treatment therapeutically appropriate and consistent with the treatment plan. The placement may be ordered either on an inpatient or an outpatient basis. 
Placement shall be on an outpatient basis unless the court determines that:
(1) treatment on an outpatient basis is reasonably expected to inflict serious physical harm upon the defendant or another. No defendant may be ordered to inpatient restoration unless at least one licensed physician, clinical psychologist, or psychiatrist who has examined the defendant testifies in person at the hearing. The defendant may waive the requirement of the testimony subject to the approval of the court; or
(2) treatment that will restore the defendant to fitness within a reasonable period of time is not available on an outpatient basis."

725 Ill. Comp. Stat. Ann. 5/104-17(a)

Misdemeanor, if the cause of unfitness is mental: outpatient, unless court "finds good cause on the record that the defendant is reasonably expected to inflict serious physical harm on the defendant or another due to mental illness." 725 Ill. Comp. Stat. Ann. 5/104-17(b)

If the D's disability is mental, "the court may order him placed for secure treatment in the custody of the Department of Human Services" or another appropriate mental health facility or treatment program.  
725 ILCS 5/104-17(b).

If D's disability is physical, "the court may order him placed under the supervision of the Department of Human Services," which shall place D in a suitable treatment facility or program. The court may also place him with another appropriate treatment provider or program.  Tx may be inpatient or outpatient.  725 ILCS 5/104-17(c)

What is the test for restorability

"…substantial probability that the defendant, if provided with a course of treatment, will attain fitness within one year." 725 Ill. Comp. Stat. 5/104-16(d).

What is the procedure after restoration

The court shall immediately enter an order directing the sheriff to return the D to the county jail when it receives a report that D has been restored. It shall set the matter for trial unless the court finds that the D is still unfit despite the facility's recommendation that D is restored.  725 ILCS 5/104-20(e) 

What is the procedure if there is a finding of unrestorability

(1) hold discharge hearing (acquittal-only adjudication) within 60 days, or 
(2) release defendant from custody and dismiss with prejudice the charges against him, or
(3) remand defendant to the custody of the Department of Human Services and order a hearing to be conducted pursuant to the provisions of the Mental Health and Developmental Disabilities Code. 
725 Ill. Comp. Stat. 5/104-23(b)

For D's who were held for an extended treatment period following the discharge hearing, "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 public safety."  If not committed, court must release the D.  725 ILCS 5/104-25(g)

What are the time limits on initial transfer to restoration services

60 days (for mental disability).

If placement cannot be made within 60 days of the transmittal of the court's placement order and the Department has demonstrated good faith efforts at placement and a lack of bed and placement availability, the Department shall provide an update to the ordering court every 30 days until the defendant is placed." The D "shall remain in jail" until transferred.

725 ILCS 5/104-17(b)

What are the time limits for treatment

N/A

What is the process if time limit is reached without restoration

(1) hold discharge hearing (acquittal-only adjudication) within 60 days, or
(2) release defendant from custody and dismiss with prejudice the charges against him, or
(3) remand defendant to the custody of the Department of Human Services and order a hearing to be conducted pursuant to the provisions of the Mental Health and Developmental Disabilities Code. 725 Ill. Comp. Stat. 5/104-23(b).

For Ds who were held for an extended treatment period following the discharge hearing, "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 public safety." "If the defendant is not committed pursuant to this Section, he or she shall be released."  725 ILCS 5/104-25(g)(2), (3).

Are there prohibitions on revoking pretrial release or competency as a pre-trial release factor

"Release on pretrial release or on recognizance shall not be revoked and an application therefor shall not be denied on the grounds that an examination has been ordered."

725 Ill. Comp. Stat. Ann. 5/104-13(d)

Time limits on treatment

Felony: 1 yr.

Misdemeanor: Sentence if convicted of most serious offense, less credit for good behavior.
725 ILCS 5/104-17(e)

Defendants charged with felonies and murder can be held for longer if the court holds a discharge hearing (a hearing on the sufficienct of the evidence) and does not enter a judgment of acquittal.  For Class 1 or X = 2 years;
For Class 2, 3 , or 4 = 15 months;
For 1st degree murder = 5  years.

725 ILCS 5/104-25(d)