Period 1: Leading Up to UST Finding

For any index offense, there is a maximum duration of treatment time depending on the severity of the index offense and the resulting charge. The durations below reflect the timeframe for the standard (initial) period of treatment:

Felony → max 365 days

Class A misdemeanor → max 364 days, less good-conduct credit

Class B misdemeanor → max 6 months, less good-conduct credit

Class C misdemeanor → max 30 days, less good-conduct credit

After the standard (initial) period of treatment, if an individual continues to be in need of extended “Not Not Guilty (NNG)” or post-extended “(g)(2)” treatment, the length of treatment time cannot exceed the maximum sentence duration of the initial offense.

Back to top

The court, defense, or prosecution may raise concerns about an individual’s mental fitness at any time. If there is a bona fide (“in good faith”) doubt about fitness, the court shall order a determination of the issue before proceeding further. When a bona fide doubt of the individual’s fitness has been raised, the burden of proving that the individual is fit by a preponderance of the evidence and the burden of going forward with the evidence are on the State.

Back to top

After bona fide doubt is raised, a fitness evaluation is conducted by a qualified examiner such as a psychiatrist, clinical psychologist, or licensed physician. Each county funds its own qualified examiner.

Back to top

The qualified examiner then submits an official evaluation report to the court. It is important to note that the written report must be filed with the court within 30 days of the court’s order for an examination. The qualified examiner may be called to testify at the hearing regarding fitness.

The report shall include pursuant to 725 ILCS 5/104-15:

• A diagnosis and an explanation as to how it was reached and the facts upon which it is based.
• A description of the individual’s mental or physical disability, if any; its severity; and an opinion as to whether and to what extent it impairs the individual’s ability to understand the nature and purpose of the proceedings against him or her or to assist in his or defense, or both.

If the report indicates that the individual is not fit to stand trial or to plead because of a disability, the report shall include:

• An opinion as to the likelihood of the individual attaining fitness within the statutory period of time from the date of the finding of unfitness if provided with a course of treatment. If the person or persons preparing the initial fitness report are unable to form such an opinion, the report shall state such and provide reasons.
• General description of the type of treatment needed and of the least physically restrictive form of treatment therapeutically appropriate. If inpatient treatment is recommended, the report must articulate the evaluator’s assessment of risk, protective factors, and treatment needs as related to the individual’s mental disorder. Risk shall not be determined solely by the nature of the individual’s criminal charges.
  

See statute for additional requirements for how information from reports may or may not be used and disclosed.

Back to top

If the individual is found unfit, the trier of fact shall determine whether there is substantial probability that the individual, if provided with a course of treatment, will attain fitness within one year.

If an individual is found unfit, and if such probability is found or if the court or the jury is unable to determine whether a substantial probability exists, the court shall order the individual to undergo treatment for the purpose of rendering him or her fit.

The goal for individuals who are Unfit to Stand Trial (UST) is not punishment or long-term care, but to restore their ability to participate meaningfully in court and in their defense to resolve their legal case.

If an individual is found unfit and not likely to obtain fitness in the statutory time period, the court shall proceed as provided in 725 ILCS 5/104-23.

Pursuant to 725 ILCS 5/104-23 the State shall request the court:

• To set the matter for hearing pursuant to Section pursuant to section 104-25 unless a hearing has already been held pursuant to paragraph (a) of this section.
• To release the individual from custody and dismiss with prejudice the charges against him.
• To remand the individual to the custody of IDHS and order a hearing to be conducted pursuant to the provisions of the Mental Health and Developmental Disabilities Code.

Back to top

After the fitness hearing, if treatment is deemed the correct approach for an individual, the court shall select the least physically restrictive form of treatment therapeutically appropriate and consistent with the recommended treatment plan. 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 725 ILCS 5/104-17(a)(1)
2. Treatment that will restore the defendant to fitness within a reasonable period of time is not available on an outpatient basis 725 ILCS 5/104-17(a)(2)
   

The following criteria may help determine whether an individual is appropriate for outpatient fitness restoration and able to safely and consistently participate in treatment while living in the community:

• Stability and support
  • Has identified, stable housing
  • Has reliable contact information
  • Has a supportive family environment
  • Has community connection (i.e., engagement with behavioral health agencies and case managers)
• Treatment readiness
  • Is open to psychiatric medication
  • Is willing to engage in treatment and restoration processes
• Access and logistics
  • Has stable transportation
  • Has technology access for virtual sessions (if applicable)
  • Is able to attend weekly or bi-weekly sessions
• Engagement and consistency
  • Demonstrates motivation, follow-through, and responsiveness to interventions
  • Has a history of compliance with outpatient services if applicable

After the judge orders treatment, the clerk of the circuit court shall send the following documentation to the IDHS regional email:

1. A certified copy of the order to undergo treatment with a complete copy of any report prepared under 725 ILCS 5/104-15 or other report prepared by a forensic examiner for the court
2. The county and municipality in which the offense was committed
3. The county and municipality in which the arrest took place
4. A copy of the arrest report, criminal charges, arrest record
5. All additional matters which the Court directs the clerk to transmit
   

Back to top

Once IDHS receives an order for placement, a Pre-Placement Evaluator is assigned.

The Pre-Placement Evaluator functions as the clinical and forensic link between the court, the jail, treatment systems, and IDHS. The work they perform supports statutory compliance, court processes, patient rights, and the safety of treatment staff, custodial staff, and the broader community.

A pre-placement evaluation (PPE) is usually completed for individuals remanded to inpatient treatment, and it is completed before admission. Its purpose is to help determine the most appropriate facility for their treatment needs, security risk, and other clinical or operational considerations before the individual is admitted. For individuals ordered directly to outpatient treatment, IDHS Forensic Outpatient Manager and Community Administrators do a clinical placement review to determine the appropriate community provider assignment.

Tips for Evaluation of In-Custody Individuals:

• Coordinate with the jail. Each county jail maintains its own procedures for evaluator access and scheduling. Evaluators must follow the county-specific contact protocols maintained by IDHS.
• Ensure privacy and security.
• Clarify legal status before starting.
• Focus on current functioning, not just history.
• Evaluations may be conducted in person or remotely, subject to clinical appropriateness, jail policy, and supervisory approval. All contact attempts and scheduling actions must be documented.

Tips for Evaluation of Out-of-Custody Individuals:

• Coordinate through attorneys.
• Use secure locations when possible.
• Document all contact attempts.
• Notify the court after three failed good-faith attempts.