Incompetency/ Insanity 


A defendant is presumed to be fit to stand trial or to plead, and be sentenced. 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.

Defendant has the right to have the issue of fitness to stand trial decided by a jury. 725 ILCS 5/104-12.

Procedure for competency evaluation and hearing; determination of “fitness” to be tried; commitment if found incompetent.  725 ILCS 5/104 generally. 


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. The burden of proof is on the defendant to prove by clear and convincing evidence that the defendant is not guilty by reason of insanity. However, the burden of proof remains on the State to prove beyond a reasonable doubt each of the elements of each of the offenses charged, and, in a jury trial where the insanity defense has been presented, the jury must be instructed that it may not consider whether the defendant has met his burden of proving that he is not guilty by reason of insanity until and unless it has first determined that the State has proven the defendant guilty beyond a reasonable doubt of the offense with which he is charged.  720 ILCS 5/6-2

Special Rules

Special courtroom accommodations: Appointment of experts qualified to assist a defendant who because of a disability is unable to understand the proceedings or communicate with his or her attorney. The case may proceed to trial only if the court determines that such provisions or assistance compensate for a defendant's disabilities so as to render the defendant fit. 725 ILCS 5/104-22

In sex crime cases, the judge may order that a witness/ victim with I/DD testify outside of the courtroom and then show it in the courtroom via closed circuit TV. Only the prosecutor, defense attorney, judge, operator of the equipment, and any person that the judge believes will benefit the wellbeing of the witness. 725 ILCS 5/106B-5

Hearsay: An out of court statement may be admissible as evidence if the witness is testifying about abuse, neglect, etc. and has a disability; the court must find the out of court statement reliable (if the witness is unavailable to be in court to authenticate the statement, there must be some corroborating evidence).  725 ILCS 5/115-10.3


The court shall not impose a sentence of imprisonment upon the offender if it believes that because of his disability a sentence of imprisonment would not serve the ends of justice and the interests of society and the offender or that because of his disability a sentence of imprisonment would subject the offender to excessive hardship. If an offender with a disability is sentenced to prison, they may be sent to an alternative facility with the ability to treat them and the Department of Corrections will be informed of specific requirements. 725 ILCS 5/104-26

Sentencing for a defendant found guilty but mentally ill – there  must be an evaluation and a hearing, but the court may impose any sentence that is equal or less than what a non-mentally ill person would have received.  730 ILCS 5/5-2-6

A higher sentence may be given if the defendant’s crime was against someone with a physical or mental disability or their property. 730 ILCS 5/5-5-3.2

Death Penalty

Death penalty competency: In determining whether the defendant is a person with an intellectual disability, the intellectual disability must have manifested itself by the age of 18. IQ tests and psychometric tests administered to the defendant must be the kind and type recognized by experts in the field of intellectual disabilities. In order for the defendant to be considered a person with an intellectual disability, a low IQ must be accompanied by significant deficits in adaptive behavior in at least 2 of the following skill areas: communication, self-care, social or interpersonal skills, home living, self-direction, academics, health and safety, use of community resources, and work. An intelligence quotient (IQ) of 75 or below is presumptive evidence of an intellectual disability.  725 ILCS 5/114-15


Inmates with I/DD: Inmates must have access to treatment as determined by a qualified mental health professional. 730 ILCS 5/3-7-7

The Department of Corrections must adopt standards and procedures for the provision of mental health and developmental disability services. Those standards and procedures must address screening and classification, the use of psychotropic medications, suicide prevention, qualifications of staff, staffing levels, staff training, discharge, linkage and aftercare, the confidentiality of mental health records, and such other issues as are necessary to ensure that inmates with mental illness receive adequate and humane care and services.  730 ILCS 5/3-15-3