The opinion of the court was delivered by: Justice McMORROW
Docket No. 89731-Agenda 8-May 2001.
Defendant, Thomas Jurisec, is an insanity acquittee who had been granted a conditional release from the custody of the Department of Human Services (the Department), as provided in section 5-2-4 of the Unified Code of Corrections (the Code) (730 ILCS 5/5-2-4 (West 1998)). On November 4, 1998, the circuit court of Will County found that defendant was not fulfilling a condition of his release and returned defendant to the custody of the Department. The appellate court affirmed the circuit court in an unpublished order. No. 3-98-1032 (unpublished order under Supreme Court Rule 23). We granted defendant's petition for leave to appeal. 177 Ill. 2d R. 315. For reasons that follow, we reverse the judgment of the appellate court and remand for further proceedings.
In April 1983, a complaint was filed in the circuit court of Will County charging defendant with aggravated indecent liberties with a child, a Class X felony. After a bench trial in 1985, defendant was found not guilty by reason of insanity. See 725 ILCS 5/115-3 (West 2000). Following his acquittal, defendant was evaluated by the Department and, after a hearing pursuant to section 5-2-4(a) of the Code (Ill. Rev. Stat. 1983, ch. 38, par. 1005-2-4(a), now 730 ILCS 5/5-2-4(a) (West 2000)), was found to be subject to involuntary admission and in need of in-patient mental health services (see Ill. Rev. Stat. 1983, ch. 38, par. 1005-2-4(b), now 730 ILCS 5/5-2-4(b) (West 2000)). The court issued an order, dated April 26, 1985, committing defendant to the custody of the Department for a period not to exceed 30 years.
In February 1990, defendant was granted a conditional release from the Department. See 730 ILCS 5/5-2-4(a)(1)(D), (d) (West 1998). One of the conditions of the release was that defendant receive treatment with the drug Depo Provera, a female hormone that decreases sexual impulses and behavior in males. Upon his release, defendant began receiving weekly injections of Depo Provera. This continued until July 1991, when the shots were stopped at defendant's request due to his concern about the drug's side effects. *fn1 Three years later, in August 1994, the Department received information that defendant had reoffended by sexually abusing his niece while baby-sitting. Dr. Kelly, defendant's treating physician, filed a report with the court indicating that, due to a recurrence of defendant's pedophilic disorder, defendant was in need of long-term mental health services on an in-patient basis. The Will County State's Attorney's office filed a petition requesting the revocation of defendant's conditional release and his involuntary readmission to the Department. A hearing was held on September 19, 1994, at which time the petition was granted by agreement of the parties and defendant was returned to the custody of the Department.
In February 1996, the Department notified the court that defendant, once again, was no longer subject to involuntary admission or in need of in-patient treatment. See 730 ILCS 5/5-2-4(d) (West 1998). The court held a hearing on May 7, 1996, and, after evidence was presented, granted defendant a second conditional release. At the hearing, the court admonished defendant that "part of my conditional release order is that you continue to take your Depo Provera. *** Not quit because you don't want to take it anymore, not quit because you're worried about the health risk. That is part of the condition of my order allowing you to be released."
"If there is any change in the type of medication, I want to be notified. If the medication becomes life threatening the Court is going to be notified, because you will not stop taking your Depo Provera before the Court is notified."
The written order granting defendant's second conditional release listed the terms of the release as follows:
"[The defendant] is to be conditionally released from the custody of [the Department] upon condition that Defendant abides by treatment program through Isaac Ray Center, resides in Gateway Sober Living Environment and takes Depo Provera. Court shall be notified every 60 days that the Defendant is taking Depo Provera. *** Conditional release subject to revocation upon Defendant refusing/ceasing/or stops taking the Depo Provera."
The court also sent a letter to defendant's treating physician, Dr. Kelly, advising him that defendant's conditional release would be revoked if defendant refused to take Depo Provera.
Defendant was released on July 22, 1996. Three months later, on October 18, 1996, defendant was arrested and held in custody at the Cook County jail on charges related to the 1994 sex offense which precipitated the revocation of defendant's conditional release in September 1994.
The record reveals that the Department sent reports to the circuit court of Will County, advising the court that defendant had been incarcerated and was not receiving Depo Provera. However, no action was taken until September 24, 1998, almost two years after defendant's arrest, when the Will County State's Attorney filed a petition to revoke defendant's conditional release and return him to the custody of the Department. The grounds for revoking defendant's conditional release were listed in the petition as follows:
"7. That on October 18, 1996, the defendant was arrested in Cook County. He has remained in Cook County Jail since that date.
8. The defendant has not received his Depo Provera medication since September of 1996."
On November 4, 1998, the Will County circuit court held a hearing on the petition. At this hearing, it was stipulated by the parties that Dr. Jonathan Kelly, if called, would testify that defendant had been ordered to receive Depo Provera as a condition of his release, that defendant had been taking the medication and complying with his therapy sessions and AA meetings until his incarceration in Cook County, and that defendant had not received a Depo Provera shot since October 9, 1996. After this stipulation was entered, the State rested.
Defendant testified in opposition to the petition. He stated that he was residing at the Cook County correctional facility, where he had been held since October 1996 on "pending charges" regarding the 1994 criminal sexual assault. *fn2 Upon his arrival at the correctional facility, defendant informed the psychiatric supervisor that he was required to receive shots of Depo Provera. The psychiatric supervisor, however, refused to administer Depo Provera, citing as a reason the fact that Depo Provera is an experimental drug not approved by the Federal Drug Administration (FDA).
Defendant contacted his attorney, who then filed petitions in the circuit court of Cook County to obtain court orders to have Depo Provera administered to defendant at the correctional facility. The Cook County circuit court issued orders on December 6, 1996, February 19, 1997, and April 27, 1997, directing facility authorities to administer the medication to defendant. Copies of these orders were filed as exhibits at defendant's hearing. Defendant testified that, despite these court orders, the psychiatrists at the correctional facility continued to refuse to administer Depo Provera to him. According to defendant, the psychiatrists ignored the court orders due to concerns about the liability that might stem from administering a non-FDA approved drug. For this reason, defendant was given Anafril as a substitute for Depo Provera. Anafril, defendant testified, is an antidepressant medication which also helps control impulse disorders.
After hearing all of the evidence, the Will County circuit court judge ruled that defendant's failure to take Depo Provera was a violation of his conditional release and ordered that defendant's release be revoked. The hearing was continued until November 12, 1998, when the court, without receiving any additional evidence, entered a finding that defendant was subject to involuntary admission and in need of mental health services on an in-patient basis. The court ordered that a hold be placed on defendant's Cook County charges so that he could be remanded to the custody of the Department. ...