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June 21, 1996


Appeal from the Circuit Court of Cook County. Honorable James P. Flannery, Judge Presiding.

Presiding Justice McNULTY delivered the opinion of the court: Gordon and Hourihane, JJ. concur.

The opinion of the court was delivered by: Mcnulty

PRESIDING JUSTICE McNULTY delivered the opinion of the court:

In this case we must determine the consequences of an admitted violation of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1001-1-1 et seq.). Clifton Turner shot and killed his mother and his stepfather on June 3, 1987. After finding Turner not guilty by reason of insanity in December 1988, the trial court committed Turner to the custody of the Department of Mental Health and Developmental Disabilities (the Department) without holding a hearing concerning his mental condition at the time of commitment.

In June 1994, while he was housed in the Elgin Mental Health Center, Turner petitioned for a writ of habeas corpus ordering Angelo Campagna, director of the Elgin Mental Health Center, and Lynn Handy, Acting Director of the Department, to release him from custody. The trial court denied the petition for habeas corpus by order dated September 14, 1994. Turner appeals from denial of his petition in docket No. 1-94-3563.

The criminal court held the commitment hearing on January 25, 1995, more than six years after the acquittal. The court committed Turner to the custody of the Department for 40 years, with credit for the years already spent in custody. Turner appeals from that order in docket No. 1-95-0820. We consolidated the appeals.

Section 5-2-4(a) of the Unified Code of Corrections requires the Department to report its evaluation of each insanity acquittee within 30 days of the acquittee's initial commitment to the Department. Ill. Rev. Stat. 1987, ch. 38, par. 1005-2-4(a). The Department admits that it never submitted the evaluation of Turner. The trial court never held the commitment hearing required by section 5-2-4(a) until Turner filed his habeas corpus petition.

By denying the petition and holding the criminal commitment hearing six years after the acquittal, the trial court effectively found Turner entitled to no relief due to the delay. The Department suggests that Turner could sue for damages resulting from the procedural violation. To recover any compensatory damages for a violation of due process, "the plaintiff must show that the underlying deprivation would not have occurred if due process had been accorded." Superdawg Drive-In, Inc. v. City of Chicago, 162 Ill. App. 3d 860, 864, 516 N.E.2d 272, 114 Ill. Dec. 117 (1987). Thus, to recover more than nominal damages, Turner would have the burden of proving that he would not have been committed if the court had held the commitment hearing within the statutory time limits. Superdawg, 162 Ill. App. 3d at 864-65; see Katris v. City of Waukegan, 498 F. Supp. 48, 54 (N.D. Ill. 1980). Since Turner lacked the wisdom and foresight to preserve evidence concerning his condition in January 1989, the relief is illusory. Only Turner, and not the criminal court or the Department, would suffer adverse consequences from the unexcused failure of the Department and the court to comply with the Unified Code of Corrections.

The Code makes no express provision for the consequences of the Department's failure to submit the evaluation or the court's failure to hold the hearing in a timely manner. The parties have not directed our attention to any case addressing the issues presented here. This case appears to be one of first impression in Illinois.

The Department invites us to determine the consequence of the statutory violation here by balancing the harm from granting the writ of habeas corpus against the harm from denying the writ. See Mathews v. Eldridge, 424 U.S. 319, 334-35, 47 L. Ed. 2d 18, 33, 96 S. Ct. 893, 902-03 (1976). Section 5-2-4 authorizes commitment following an insanity acquittal "'to treat the individual's mental illness, and at the same time protect him and society from his potential dangerousness.'" People v. Pastewski, 164 Ill. 2d 189, 197, 647 N.E.2d 278, 207 Ill. Dec. 316 (1995), quoting People v. Williams, 140 Ill. App. 3d 216, 228, 488 N.E.2d 649, 94 Ill. Dec. 650 (1986).

"The primary objective of section 5-2-4 is to insure that insanity acquittees are not indeterminately institutionalized while at the same time protecting society from the premature release of mentally ill persons who have been proved capable of dangerous acts." People v. Winston, 191 Ill. App. 3d 948, 959, 548 N.E.2d 406, 139 Ill. Dec. 21 (1989).

This purpose is consistent with the overall purpose of the Code, which is designed to protect society from future criminal conduct by past offenders (730 ILCS 5/1-1-2(b) (West 1994)), prevent arbitrary or oppressive deprivations of the liberties of offenders (730 ILCS 5/1-1-2(c) (West 1994)), and restore offenders to useful citizenship (730 ILCS 5/1-1-2(d) (West 1994)).

Persons found not guilty of crimes by reason of insanity retain substantial liberty interests protected by the procedures mandated by section 5-2-4. Radazewski v. Cawley, 159 Ill. 2d 372, 378, 639 N.E.2d 141, 203 Ill. Dec. 102 (1994). "Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action." Foucha v. Louisiana, 504 U.S. 71, 79, 118 L. Ed. 2d 437, 448, 112 S. Ct. 1780, 1785 (1992). Even for persons mentally ill and dangerous, "commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection." Jones v. United States, 463 U.S. 354, 361, 77 L. Ed. 2d 694, 703, 103 S. Ct. 3043, 3048 (1983). The due process clauses of both the federal and state Constitutions require compliance with the procedures mandated by statute. Department of Transportation ex rel. People v. Parr, 259 Ill. App. 3d 602, 607, 633 N.E.2d 19, 198 Ill. Dec. 557 (1994); People v. Cowherd, 114 Ill. App. 3d 894, 900, 449 N.E.2d 589, 70 Ill. Dec. 460 (1983).

If egregious, unexcused violations of the procedural protections in section 5-2-4 incur no redress, the Department and the criminal courts will have no impetus for holding the mandatory hearings within any reasonable time. The lack of consequences would severely undercut the statutory objectives of preventing indeterminate institutionalizations and arbitrary deprivations of liberty. If the statute provides no protection for the right to a timely hearing, the constitutionality of the statutory scheme becomes questionable, because the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. People v. P.H., 145 Ill. 2d 209, 235, 582 N.E.2d 700, 164 Ill. Dec. 137 (1991). Courts must, if possible, avoid interpreting statutes in a manner that raises substantial questions ...

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