The opinion of the court was delivered by: Justice Geiger
IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT
Appeal from the Circuit Court of Winnebago County. No. 75--CF--3064
Honorable Robert G. Coplan, Judge, Presiding.
On February 21, 1996, the defendant, Morris McDougle, filed an application for recovery pursuant to section 9 of the Sexually Dangerous Persons Act (the Act) (725 ILCS 205/9 (West 1996)). Specifically, the defendant sought a transfer from the Illinois Department of Corrections (DOC) to the Illinois Department of Mental Health so that he could receive additional psychiatric treatment for his mental illness. On March 13, 1997, the trial court denied the application after determining that it lacked authority under the Act to order such a transfer. The defendant appeals, contending that the trial court improperly interpreted the language of the Act. The defendant alternatively contends that the Act violates his constitutional rights to due process and equal protection. We affirm.
In 1975, in the circuit court of Winnebago County, the defendant was adjudicated a sexually dangerous person and was committed into the custody of the DOC. The defendant's adjudication as a sexually dangerous person was predicated upon a charge that he had fondled the private parts of a minor child under the age of 16. Since the time of his adjudication, the defendant has been confined in the DOC, except for approximately three months in 1983 when he was conditionally released. The defendant is currently in confinement at the Big Muddy River Correctional Center in Ina.
In his application, the defendant alleged as follows: (1) that he has complied with the rules and regulations of confinement; (2) that he has displayed a willing and respectful attitude of cooperation in submitting to therapy; (3) that he has made significant progress in therapy and learned to control his sexually inappropriate behavior; and (4) that he has recovered and is fully capable of resuming his position in society. The application was accompanied by a motion for leave to file in forma pauperis. On February 29, 1996, the public defender was appointed to represent the defendant.
At the hearing on the application, the defendant did not request conditional release from his confinement; rather, the defendant requested a transfer from the DOC to the Department of Mental Health so that he could receive more effective psychiatric treatment designed to effect his recovery. The defendant's counsel argued that the DOC was not meeting its statutory obligation under section 8 of the Act to provide the defendant with treatment "designed to effect recovery." See 725 ILCS 205/8 (West 1996).
The State's only witness at the hearing was Dr. Mark Carich, a psychological administrator employed at Big Muddy River Correctional Center. Dr. Carich met with the defendant for about one hour on May 21, 1996, after which he prepared a report detailing his opinions. Dr. Carich diagnosed the defendant as having an undifferentiated schizophrenia-schizofactive disorder, organic mental disorder, paraphilia with features of exhibitionism, voyeurism, sexual sadism and pedophilia with both genders, mild mental retardation, and personality disorder. Dr. Carich testified that the defendant hallucinates, talks to himself, and hears voices which tell him to have sex and to masturbate.
Because of these behaviors, the defendant is incapable of participating in the sex offender group therapy program at Big Muddy River Correctional Center. Dr. Carich testified that this program was the only regular therapy available to the defendant for the treatment of his sexual behavioral disorder. He further testified that the defendant was occasionally able to participate in "socialization events," which are party-like gatherings at which offenders can interact socially. Dr. Carich testified that socializing could help the defendant develop motivation and commitment towards recovery. In addition to participating in the socialization events, the defendant also meets with a psychiatrist once a month for approximately 15 to 20 minutes.
Dr. Carich further testified that, because the defendant is incapable of participating in the other programs available at Big Muddy River Correctional Center, the defendant's primary treatment is limited to custodial care. Dr. Carich explained that the DOC attempts to maintain the defendant in a comfortable environment and makes sure that he does not hurt anyone. The defendant is also treated with two anti-psychotic drugs, Haldol and Artain. Dr. Carich explained that the defendant had "decompensated" during his years with the DOC and that his condition would not improve as long as he remained on "maintenance."
Dr. Carich also testified concerning an incident involving the defendant in January 1996. The defendant, who was staying in the health care unit at Big Muddy River Correctional Center, apparently grabbed a nurse by the arm and tried to force her into a closet. During this incident, the defendant was holding his penis in his hand. Dr. Carich acknowledged that the incident did not involve physical injury, nor did the nurse have to summon help. Dr. Carich opined that the defendant continues to require a structured environment and that he should not be released because he would likely victimize someone sexually.
When questioned about transferring the defendant to the Department of Mental Health, Dr. Carich stated his belief that the treatment the defendant would receive in a mental health facility would perhaps be the same treatment he received from the DOC. Dr. Carich explained that the defendant can handle only custodial care and that he remains sexually dangerous and needs a structured environment. Dr. Carich acknowledged that the Alton Mental Health Center has a forensic unit which treats people who suffer from both psychosis and mental retardation. He testified that he had no opinion as to whether the defendant would be better off in the DOC or the Department of Mental Health and would not have a problem with treatment from either agency.
Dr. Carich gave the following additional testimony on cross-examination concerning the subject of transfer:
"Q: "Can you tell the specific reason why the next level, whoever makes the decision about taking him from where he is now to the Department of Mental Health, why that has not been done, why was that turned down specifically?"
A: "It has not been turned down by the director, and in fact I would suggest that you guys write a memoranda or letter requesting that."
Q: "You did that before this hearing 3 weeks ago you said you were going to ask them?"
A: "I consulted with the project chairperson."
Q: "What was the project chairperson's response?"
A: "That at this time that she advised not to bring it to the director at this time."
A: "She did not give me an exact specific reason. She had indicated that a variety of different laws are in the process [sic] and that apparently the departments are trying to figure out which one is going to handle the various sex offenders."
The defendant's mother, Chula McDougle, was the only witness called to testify on the defendant's behalf. Chula McDougle testified that the defendant was living in her home in 1975 when he originally was adjudicated a sexually dangerous person. She testified that, at that time, the defendant was able to converse with her, was able to hold a job, and did not have problems with personal hygiene. She testified that since 1981 the DOC has "destroyed" her son.
During closing argument, defense counsel argued that the defendant was not receiving treatment designed to effect his recovery as required by section 8 of the Act. Defense counsel argued that the defendant had been "warehoused" and that his treatment plan was designed to make sure that he never left the DOC or got any better. Defense counsel requested the trial court to "mandate" the DOC to exercise its ...