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Mental Health Matters
The newsletter of the ISBA’s Mental Health Law Section

May 2016, vol. 2, no. 4

Your client has just been found not guilty by reason of insanity—Your work is not over

Illinois, like most states, provides the defense of insanity to persons charged with a criminal offense.1 This defense is defined quite narrowly,2 so very few criminal defendants chose to plead insanity. Fewer still succeed. In 2015, only 80 people were admitted to a state mental hospital following an acquittal by reason of insanity.3 However, for those who do succeed with this defense, the lawyer’s job is not done. Specifically, counsel must ensure that: (1) the defendant is transferred promptly to a Department of Human Services facility for an evaluation; (2) the defendant receives a commitment hearing; and (3) if the defendant is committed, he is given a commitment which is no longer than authorized under 730 ILCS 5/5-2-4(b).4

Prompt Transfers to the Department of Human Services

Almost all those acquitted by reason of insanity (usually called “NGRIs”) are transferred from the jail to the custody of the Department of Human Services (“the Department”) for an evaluation pursuant to 730 ILCS 5/5-2-4(a).5 However, that transfer cannot occur until the Department evaluates the defendant to determine where he should be confined and notifies the sheriff to which Department facility the defendant should be transferred.6 Unfortunately, this notification is often delayed because the capacity of the Department to house NGRIs is limited.

This is problematic for NGRIs. Jails are rarely able to provide the appropriate environment and treatment for people with serious mental illnesses. Among other harms, keeping an NGRI for an extended period in a jail may cause him to deteriorate. This could in turn result in a negative evaluation of the client by the Department and result in the client’s commitment. Thus, lawyers may wish to ask the court for a specific order directing a prompt transfer in order to ensure that their clients receive adequate treatment and a prompt evaluation and may need to ask the court to use its contempt powers to enforce that order. Because the Department is required to complete its written evaluation within 30 days following the NGRI finding,7 the defendant must be transferred to the Department within that time period.

Commitment Hearings for NGRIs

It is important to note that, unlike many states, the commitment of NGRIs in Illinois is not automatic. Rather, following the evaluation by the Department, the defendant is entitled to a hearing in which the State must prove by clear and convincing evidence that the defendant meets one of the two commitment standards: inpatient or outpatient.8 To be committed on an inpatient basis, the defendant must be “due to mental illness reasonably expected to inflict serious physical harm on himself or another and benefit from inpatient care or in need of inpatient care.”9 If the State fails to prove that your client meets this standard, he must be released.

This statutory provision makes sense because the finding needed to acquit someone by reason of insanity is quite different from the finding needed to commit someone to a mental hospital. A finding of insanity in Illinois just determines that, at the time of the crime, the defendant “lack[ed] substantial capacity to appreciate the criminality of his conduct.”10 It requires no finding that the defendant is dangerous to himself or others or that he is likely to be so in the future.11

Serious mental illnesses, while often incurable, are highly treatable. Even the most serious mental illnesses usually respond to medication and other treatments in a few weeks. Given the usual delay between the commission of the offense and the NGRI finding, there is no reason to think that the defendant should need to be confined in a mental hospital following that finding. Indeed it is frequently the case that the defendant is first found, due to his mental illness, to be unfit to stand trial. If so, any criminal disposition (a guilty plea or a criminal trial) will not occur until treatment has succeeded in rendering the defendant fit.12

While the standard for fitness13 and the standard for commitment are not the same, restoration to fitness often coincides with a remission of the symptoms of mental illness. By the time the defendant is actually found not guilty by reason of insanity, his mental health is usually dramatically improved from what it was at the time of the offense. Thus, there is no reason to believe that the outcome of the hearing required under 730 ILCS 5/5-2-4 should be inpatient commitment and every reason to vigorously contest this result.

The hearing required by subsection (a) has substantial procedural requirements. That is because this law incorporates by reference all of the procedural protections in the Mental Health and Developmental Disabilities Code (“the Code”), 405 ILCS 5/1-100, et seq.14 Those protections are detailed in Chapter III, Article VIII of the Code.15 They include: (1) the right to a six-person jury;16 (2) the right to an independent examination by an expert chosen by the respondent and the right to an appointed expert if the respondent is indigent;17 (3) the right to counsel and to appointed counsel if indigent;18 (4) the right to be present at the hearing;19 (5) the requirement that at least one mental health expert testify at the hearing;20 (6) that the standard of proof is clear and convincing evidence;21 and, (7) that the court make findings of fact and conclusions of law on the record.22 The Code also provides that a respondent who is committed following the hearing is entitled to appeal and that, if indigent, entitled to a free transcript and appointed counsel.23 In short, a person found NGRI is entitled to a full commitment hearing, just like any other citizen, before being indefinitely confined in a mental health facility.

There is another reason why the commitment hearing provided for in subsection (a) of the NGRI law is very important. Unlike other civil commitments which last only 90 days,24 the commitment of an NGRI may last as long as the criminal sentence that the defendant could have received had he been convicted.25 During that extended period, which could be for “natural life”, the NGRI cannot be released unless he proves by clear and convincing evidence that he no longer meets the criteria for confinement.26

Due to the uncertainties of predicting future behavior, the assignment of the burden of proof often determines who will prevail in a commitment or release hearing.27 The only hearing an NGRI will ever have in which he does not bear the burden of proof by clear and convincing evidence is the initial commitment hearing to which he is entitled following the acquittal. This is the NGRI’s best opportunity to avoid what could be a very lengthy commitment.

Preventing Lengthy Commitments–Thiem dates28

As mentioned above, if an NGRI is committed, the maximum length of commitment is related to the sentence the NGRI would have received had he been convicted.29 The specific statutory language governing the length of commitments is:

the initial order for admission of a defendant acquitted of a felony by reason of insanity shall be for an indefinite period of time. Such period of commitment shall not exceed the maximum length of time that the defendant would have been required to serve, less credit for good behavior as provided in Section 5-4-1 of the Unified Code of Corrections, before becoming eligible for release had he been convicted of and received the maximum sentence for the most serious crime for which he has been acquitted by reason of insanity. The Court shall determine the maximum period of commitment by an appropriate order.30

Unfortunately, courts have frequently failed to determine the correct Thiem date. Following are some important issues regarding calculating the correct Thiem date:

1. Unlike a criminal sentencing order, the commitment order must state the actual date upon which the order will expire.31

2. Unlike a criminal sentencing order, the commitment order must calculate and deduct “credit for good behavior.”32 There is a split in authority about whether courts must award “compensatory” good time credits under 730 (LCS 5/3-6-3(a)(3).33

3. Because the commitment period must be based upon “the most serious crime [stated in the singular] for which [the defendant] has been acquitted,” the commitment period cannot be based upon consecutive sentences, even if that would be permissible if the NGRI had been convicted.34

4. There is a split in authority about whether a Thiem date of natural life can be imposed.35

5. A Thiem date based upon the “extended term” provisions in 730 ILCS 5/5-3.2 and 730 ILCS 5/5-8-1(a)(1)(b) can be imposed unless it requires a finding which is inconsistent with the insanity defense.36

6. A court cannot change an NGRI’s Thiem date based upon his conduct subsequent to commitment.37

It is important to note that the law governing the calculation of Thiem dates continues to evolve.


When someone has been found NGRI, his fate remains undetermined. There may or may not be a commitment, and the length of any commitment may turn on the careful attention of the lawyer. While an NGRI finding can be a substantial victory, it is not the end for the defendant. Nor should it be for his attorney.

Mark J. Heyrman, J.D., is a Clinical Professor at the University of Chicago Law School. See <>. He can be contacted at 773-702-9611 or by e-mail at


1. 720 ILCS 5/6-2.

2. “A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity to appreciate the criminality of his conduct.” 720 (ILCS 5/6-2(a).

3. Department of Human Services Statistical Report: “FY2015 Total Admissions TDF and Mental Hospitals.”

4. This article does not argue that all of this legal work must be performed by criminal defense counsel. Rather, counsel must make sure that someone has taken on this responsibility. If the defendant is indigent, he is entitled to appointed counsel pursuant to 730 ILCS 5/5-2-4(c).

5. This evaluation may take place on an outpatient basis. 730 ILCS 5/5-2-4(a). Counsel should consider whether the seriousness of the offense and the defendant’s clinical condition permit this, and if so, ask the court for an appropriate order.

6. 730 ILCS 5/5-2-4(a).

7. Id.

8. Id.

9. 730 ILCS 5/5-2-4(a-1)(B).

10. 720 ILCS 5/6-2(a).

11. But see Jones v. United States, 463 U.S. 354 (1982) (holding that an acquittal by reason of insanity may substitute for a commitment hearing).

12. There is an exception. Someone who has been found unfit to stand trial and not rendered fit within one year or unlikely to become fit will ordinarily be entitled to a “discharge hearing” under 725 ILCS 5/104-25. A discharge hearing may result in a finding of not guilty by reason of insanity. 725 ILCS 5/104-25(c). Such a finding will then trigger the commitment hearing under 730 ILCS 5/5-2-4. This result is relatively rare.

13. “A defendant is unfit if, because of his mental or physical condition, he is unable to understand the nature and purpose of the proceedings against him or to assist in his defense.” 725 ILCS 5/104-10.

14. 730 ILCS 5/5-2-4(b) provides: “the admission, detention, care, treatment or habilitation, treatment plans, review proceedings, including review of treatment and treatment plans, and discharge of the defendant after such order shall be under the Mental Health and Developmental Disabilities Code”

15. 405 ILCS 5/3-800, et seq.

16. Section 3-802.

17. Section 3-804.

18. Section 3-805.

19. Section 3-806.

20. Section 3-807.

21. Section 3-808.

22. Section 3-816(a).

23. Section 3-816(b).

24. 405 ILCS 5/3-813(a).

25. 730 ILCS 5/5-2-4(b).

26. 730 ILCS 5/5-2-4(g).

27. Fasulo v. Arefeh, 173 Conn 473, 378 A.2d 553 (1977).

28. Because the first case which considered whether and how to determine the maximum commitment period was People v. Thiem, 82 Ill. App. 3d 956, 403 N.E.2d 647 (1st Dist. 1980), the date on which an NGRI commitment expires is usually referred to as a Thiem date.

29. Many NGRIs are released prior to their Thiem date because a court has approved a request for release either from the facility director under 730 ILCS 5/5-2-4(d) or from the NGRI himself under 730 ILCS 5/5-2-4(e).

30. 730 ILCS 5/5-2-4(b).

31. Thiem, id.

32. People v. Cochran, 167 Ill. App. 3d 830, 833 (1988);

33. Compare People v. Kokkeneis, 259 Ill. App. 3d 404 (1st Dist. 1994) (court must award compensatory good time); with People v. Detert, 343 Ill. App. 607, 612 (2003) (the Department may award compensatory good time credit).

34. People v. Steele-Kumi, 21 N.E.3d 1267(1st Dist. 2014); People v. Hampton, 358 Ill. App. 3d 1029 (2005).

35. Compare People v. Larson, 132 Ill. App. 3d 594 (1988) (natural life not permitted), with People v. Cochran, 167 Ill. App. 3d 830 (1988), and People v. Palmer, 193 Ill. App. 3d 745 (1990) (natural life may be used).

36. Compare People v Palmer, 148 Ill. 2d 70, 92 (1992) (rejecting the use of the extended term provisions because the factor was based upon the defendant’s mens rea), with People v. Pastewski, 164 Ill. 2d 198 (1995) (permitting such use based upon an objective, historical factor).

37. In re Guy, 126 Ill. App. 3d 267 (1st Dist. 1984)