HB 5308

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Full Text of HB5308
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	HB5308 - 104th General Assembly
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104TH GENERAL ASSEMBLY
State of Illinois
2025 and 2026
HB5308
Introduced 2/10/2026, by Rep. Maura Hirschauer
SYNOPSIS AS INTRODUCED:
725 ILCS 5/104-15	  from Ch. 38, par. 104-15
725 ILCS 5/104-17	  from Ch. 38, par. 104-17
Amends the Code of Criminal Procedure of 1963. Provides that if the court orders an unfit defendant to be placed in the custody of the Department of Human Services, during the period of time required to determine bed and placement availability at the designated facility, the defendant may (rather than shall) remain in jail. Makes technical changes in a provision concerning credit for good behavior.
LRB104 18058 RLC 31497 b
A BILL FOR
		HB5308		LRB104 18058 RLC 31497 b
1    AN ACT concerning criminal law.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 5. The Code of Criminal Procedure of 1963 is
5amended by changing Sections 104-15 and 104-17 as follows:
6    (725 ILCS 5/104-15)  (from Ch. 38, par. 104-15)
7    Sec. 104-15. Report.
8    (a) The person or persons conducting an examination of the
9defendant, pursuant to paragraph (a) or (b) of Section 104-13
10shall submit a written report to the court, the State, and the
11defense within 30 days of the date of the order. The report
12shall include:
13        (1) A diagnosis and an explanation as to how it was
14    reached and the facts upon which it is based;
15        (2) A description of the defendant's mental or
16    physical disability, if any; its severity; and an opinion
17    as to whether and to what extent it impairs the
18    defendant's ability to understand the nature and purpose
19    of the proceedings against him or to assist in his
20    defense, or both.
21    (b) If the report indicates that the defendant is not fit
22to stand trial or to plead because of a disability, the report
23shall include an opinion as to the likelihood of the defendant
		HB5308	- 2 -	LRB104 18058 RLC 31497 b
1attaining fitness within the statutory period of time from the
2date of the finding of unfitness if provided with a course of
3treatment. For a defendant charged with a felony, the period
4of time shall be one year. For a defendant charged with a
5misdemeanor, the period of time shall be no longer than the
6maximum term of imprisonment for the most serious offense. The
7period of commitment shall not exceed the maximum length of
8time that the defendant would have been required to serve,
9less credit for good behavior as provided in [Section 5-4-1 of]
10the Unified Code of Corrections and Section 3 of the County 
11Jail Good Behavior Allowance Act. Defendants charged with
12petty offenses or infraction of a municipal ordinance are not
13eligible for fitness restoration services. If the person or
14persons preparing the initial fitness report are unable to
15form such an opinion, the report shall state the reasons
16therefor. The report shall include a general description of
17the type of treatment needed and of the least physically
18restrictive form of treatment therapeutically appropriate. If
19inpatient treatment is recommended, the report must articulate
20the evaluator's assessment of risk, protective factors, and
21treatment needs as related to the defendant's mental disorder.
22Risk shall not be determined solely by the nature of the
23defendant's criminal charges.
24    (c) The report shall indicate what information, if any,
25contained therein may be harmful to the mental condition of
26the defendant if made known to him.
		HB5308	- 3 -	LRB104 18058 RLC 31497 b
1    (d) In addition to the report, a person retained or
2appointed by the State or the defense to conduct an
3examination shall, upon written request, make his or her
4notes, other evaluations reviewed or relied upon by the
5testifying witness, and any videotaped interviews available to
6another examiner of the defendant. All forensic interviews
7conducted by a person retained or appointed by the State or the
8defense shall be videotaped unless doing so would be
9impractical. In the event that the interview is not
10videotaped, the examiner may still testify as to the person's
11fitness and the court may only consider the lack of compliance
12in according the weight and not the admissibility of the
13expert testimony. An examiner may use these materials as part
14of his or her diagnosis and explanation but shall not
15otherwise disclose the contents, including at a hearing before
16the court, except as otherwise provided in Section 104-14 of
17this Code.
18(Source: P.A. 104-318, eff. 1-1-26.)
19    (725 ILCS 5/104-17)  (from Ch. 38, par. 104-17)
20    Sec. 104-17. Commitment for treatment; treatment plan.
21    (a) If the defendant is eligible to be or has been released
22on pretrial release, the court shall select the least
23physically restrictive form of treatment therapeutically
24appropriate and consistent with the treatment plan. The
25placement may be ordered either on an inpatient or an
		HB5308	- 4 -	LRB104 18058 RLC 31497 b
1outpatient basis. Placement shall be on an outpatient basis
2unless the court determines that:
3        (1) treatment on an outpatient basis is reasonably
4    expected to inflict serious physical harm upon the
5    defendant or another. No defendant may be ordered to
6    inpatient restoration unless at least one licensed
7    physician, clinical psychologist, or psychiatrist who has
8    examined the defendant testifies in person at the hearing.
9    The defendant may waive the requirement of the testimony
10    subject to the approval of the court; or
11        (2) treatment that will restore the defendant to
12    fitness within a reasonable period of time is not
13    available on an outpatient basis.
14    (b) If the defendant's disability is mental, the court may
15order him placed for secure treatment in the custody of the
16Department of Human Services, or the court may order him
17placed in the custody of any other appropriate public or
18private mental health facility or treatment program which has
19agreed to provide treatment to the defendant. If the most
20serious charge faced by the defendant is a misdemeanor, the
21court shall order outpatient treatment, unless the court finds
22on the record that the defendant is reasonably expected to
23inflict serious physical harm on the defendant or another due
24to mental illness. No defendant may be ordered to inpatient
25restoration unless at least one licensed physician, clinical
26psychologist, or psychiatrist who has examined the defendant
		HB5308	- 5 -	LRB104 18058 RLC 31497 b
1testifies in person at the hearing. The defendant may waive
2the requirement of the testimony subject to the approval of
3the court. If the court orders the defendant to inpatient
4treatment in the custody of the Department of Human Services,
5the Department shall evaluate the defendant to determine the
6most appropriate secure facility to receive the defendant and,
7within 20 days of the transmittal by the clerk of the circuit
8court of the court's placement order, notify the court of the
9designated facility to receive the defendant. The Department
10shall admit the defendant to a secure facility within 60 days
11of the transmittal of the court's placement order, unless the
12Department can demonstrate good faith efforts at placement and
13a lack of bed and placement availability. If placement cannot
14be made within 60 days of the transmittal of the court's
15placement order and the Department has demonstrated good faith
16efforts at placement and a lack of bed and placement
17availability, the Department shall provide an update to the
18ordering court every 30 days until the defendant is placed.
19Once bed and placement availability is determined, the
20Department shall notify the sheriff who shall promptly
21transport the defendant to the designated facility. If the
22defendant is placed in the custody of the Department of Human
23Services, the defendant shall be placed in a secure setting.
24During the period of time required to determine bed and
25placement availability at the designated facility, the
26defendant may [shall] remain in jail. If during the course of
		HB5308	- 6 -	LRB104 18058 RLC 31497 b
1evaluating the defendant for placement, the Department of
2Human Services determines that the defendant is currently fit
3to stand trial, it shall immediately notify the court and
4shall submit a written report within 7 days. In that
5circumstance the placement shall be held pending a court
6hearing on the Department's report. Otherwise, upon completion
7of the placement process, including identifying bed and
8placement availability, the sheriff shall be notified and
9shall transport the defendant to the designated facility. If,
10within 60 days of the transmittal by the clerk of the circuit
11court of the court's placement order, the Department fails to
12provide the sheriff with notice of bed and placement
13availability at the designated facility, the sheriff shall
14contact the Department to inquire about when a placement will
15become available at the designated facility as well as bed and
16placement availability at other secure facilities. The
17Department shall respond to the sheriff within 2 business days
18of the notice and inquiry by the sheriff seeking the transfer
19and the Department shall provide the sheriff with the status
20of the evaluation, information on bed and placement
21availability, and an estimated date of admission for the
22defendant and any changes to that estimated date of admission.
23If the Department notifies the sheriff during the 2 business
24day period of a facility operated by the Department with
25placement availability, the sheriff shall promptly transport
26the defendant to that facility. The placement may be ordered
		HB5308	- 7 -	LRB104 18058 RLC 31497 b
1either on an inpatient or an outpatient basis.
2    (c) If the defendant's disability is physical, the court
3may order him placed under the supervision of the Department
4of Human Services which shall place and maintain the defendant
5in a suitable treatment facility or program, or the court may
6order him placed in an appropriate public or private facility
7or treatment program which has agreed to provide treatment to
8the defendant. The placement may be ordered either on an
9inpatient or an outpatient basis.
10    (d) The clerk of the circuit court shall within 5 days of
11the entry of the order transmit to the Department, agency or
12institution, if any, to which the defendant is remanded for
13treatment, the following:
14        (1) a certified copy of the order to undergo
15    treatment. Accompanying the certified copy of the order to
16    undergo treatment shall be the complete copy of any report
17    prepared under Section 104-15 of this Code or other report
18    prepared by a forensic examiner for the court;
19        (2) the county and municipality in which the offense
20    was committed;
21        (3) the county and municipality in which the arrest
22    took place;
23        (4) a copy of the arrest report, criminal charges,
24    arrest record; and
25        (5) all additional matters which the Court directs the
26    clerk to transmit.
		HB5308	- 8 -	LRB104 18058 RLC 31497 b
1    (e) Within 30 days of admission to the designated
2facility, the person supervising the defendant's treatment
3shall file with the court, the State, and the defense a report
4assessing the facility's or program's capacity to provide
5appropriate treatment for the defendant and indicating his
6opinion as to the probability of the defendant's attaining
7fitness within a period of time from the date of the finding of
8unfitness. For a defendant charged with a felony, the period
9of time shall be one year. For a defendant charged with a
10misdemeanor, the period of time shall be no longer than the
11sentence if convicted of the most serious offense, less credit
12for good behavior as provided in Section 5-4-1 of the Unified
13Code of Corrections. If the report indicates that there is a
14substantial probability that the defendant will attain fitness
15within the time period, the treatment supervisor shall also
16file a treatment plan which shall include:
17        (1) A diagnosis of the defendant's disability;
18        (2) A description of treatment goals with respect to
19    rendering the defendant fit, a specification of the
20    proposed treatment modalities, and an estimated timetable
21    for attainment of the goals;
22        (3) An identification of the person in charge of
23    supervising the defendant's treatment.
24(Source: P.A. 104-318, eff. 1-1-26.)