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Docket No. 89731-Agenda 8-May 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 
THOMAS JURISEC, Appellant.

Opinion filed February 22, 2002.

JUSTICE McMORROW delivered the opinion of the court:

Defendant, Thomas Jurisec, is an insanity acquittee who hadbeen granted a conditional release from the custody of theDepartment of Human Services (the Department), as provided insection 5-2-4 of the Unified Code of Corrections (the Code) (730ILCS 5/5-2-4 (West 1998)). On November 4, 1998, the circuitcourt of Will County found that defendant was not fulfilling acondition of his release and returned defendant to the custody ofthe Department. The appellate court affirmed the circuit court inan unpublished order. No. 3-98-1032 (unpublished order underSupreme Court Rule 23). We granted defendant's petition forleave to appeal. 177 Ill. 2d R. 315. For reasons that follow, wereverse the judgment of the appellate court and remand for furtherproceedings.

BACKGROUND

In April 1983, a complaint was filed in the circuit court ofWill County charging defendant with aggravated indecent libertieswith a child, a Class X felony. After a bench trial in 1985,defendant was found not guilty by reason of insanity. See 725ILCS 5/115-3 (West 2000). Following his acquittal, defendantwas evaluated by the Department and, after a hearing pursuant tosection 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 foundto be subject to involuntary admission and in need of in-patientmental 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 courtissued an order, dated April 26, 1985, committing defendant to thecustody of the Department for a period not to exceed 30 years.

In February 1990, defendant was granted a conditional releasefrom the Department. See 730 ILCS 5/5-2-4(a)(1)(D), (d) (West1998). One of the conditions of the release was that defendantreceive treatment with the drug Depo Provera, a female hormonethat decreases sexual impulses and behavior in males. Upon hisrelease, defendant began receiving weekly injections of DepoProvera. This continued until July 1991, when the shots werestopped at defendant's request due to his concern about the drug'sside effects.⁽¹⁾ Three years later, in August 1994, the Departmentreceived information that defendant had reoffended by sexuallyabusing his niece while baby-sitting. Dr. Kelly, defendant'streating physician, filed a report with the court indicating that, dueto a recurrence of defendant's pedophilic disorder, defendant wasin need of long-term mental health services on an in-patient basis.The Will County State's Attorney's office filed a petitionrequesting the revocation of defendant's conditional release andhis involuntary readmission to the Department. A hearing was heldon September 19, 1994, at which time the petition was granted byagreement of the parties and defendant was returned to the custodyof the Department.

In February 1996, the Department notified the court thatdefendant, once again, was no longer subject to involuntaryadmission or in need of in-patient treatment. See 730 ILCS5/5-2-4(d) (West 1998). The court held a hearing on May 7, 1996,and, after evidence was presented, granted defendant a secondconditional release. At the hearing, the court admonisheddefendant that "part of my conditional release order is that youcontinue to take your Depo Provera. *** Not quit because youdon't want to take it anymore, not quit because you're worriedabout the health risk. That is part of the condition of my orderallowing you to be released."

The court also stated:

"If there is any change in the type of medication, I want tobe notified. If the medication becomes life threatening theCourt is going to be notified, because you will not stoptaking your Depo Provera before the Court is notified."

The written order granting defendant's second conditionalrelease listed the terms of the release as follows:

"[The defendant] is to be conditionally released from thecustody of [the Department] upon condition thatDefendant abides by treatment program through Isaac RayCenter, resides in Gateway Sober Living Environment andtakes Depo Provera. Court shall be notified every 60 daysthat the Defendant is taking Depo Provera. ***Conditional release subject to revocation upon Defendantrefusing/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 wouldbe 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 custodyat the Cook County jail on charges related to the 1994 sex offensewhich precipitated the revocation of defendant's conditionalrelease in September 1994.

The record reveals that the Department sent reports to thecircuit court of Will County, advising the court that defendant hadbeen incarcerated and was not receiving Depo Provera. However,no action was taken until September 24, 1998, almost two yearsafter defendant's arrest, when the Will County State's Attorneyfiled a petition to revoke defendant's conditional release and returnhim to the custody of the Department. The grounds for revokingdefendant's conditional release were listed in the petition asfollows:

"7. That on October 18, 1996, the defendant wasarrested in Cook County. He has remained in CookCounty Jail since that date.

8. The defendant has not received his Depo Proveramedication since September of 1996."

On November 4, 1998, the Will County circuit court held ahearing on the petition. At this hearing, it was stipulated by theparties that Dr. Jonathan Kelly, if called, would testify thatdefendant had been ordered to receive Depo Provera as a conditionof his release, that defendant had been taking the medication andcomplying with his therapy sessions and AA meetings until hisincarceration in Cook County, and that defendant had not receiveda Depo Provera shot since October 9, 1996. After this stipulationwas entered, the State rested.

Defendant testified in opposition to the petition. He stated thathe was residing at the Cook County correctional facility, where hehad been held since October 1996 on "pending charges" regardingthe 1994 criminal sexual assault.⁽²⁾ Upon his arrival at thecorrectional facility, defendant informed the psychiatric supervisorthat he was required to receive shots of Depo Provera. Thepsychiatric supervisor, however, refused to administer DepoProvera, citing as a reason the fact that Depo Provera is anexperimental drug not approved by the Federal DrugAdministration (FDA).

Defendant contacted his attorney, who then filed petitions inthe circuit court of Cook County to obtain court orders to haveDepo Provera administered to defendant at the correctionalfacility. The Cook County circuit court issued orders on December6, 1996, February 19, 1997, and April 27, 1997, directing facilityauthorities to administer the medication to defendant. Copies ofthese orders were filed as exhibits at defendant's hearing.Defendant testified that, despite these court orders, thepsychiatrists at the correctional facility continued to refuse toadminister Depo Provera to him. According to defendant, thepsychiatrists ignored the court orders due to concerns about theliability that might stem from administering a non-FDA approveddrug. For this reason, defendant was given Anafril as a substitutefor Depo Provera. Anafril, defendant testified, is an antidepressantmedication which also helps control impulse disorders.

After hearing all of the evidence, the Will County circuit courtjudge ruled that defendant's failure to take Depo Provera was aviolation of his conditional release and ordered that defendant'srelease 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 involuntaryadmission and in need of mental health services on an in-patientbasis. The court ordered that a hold be placed on defendant's CookCounty charges so that he could be remanded to the custody of theDepartment. The court directed the Department to prepare atreatment plan for defendant within 30 days of the date ofdefendant's return to the Department's custody.

On December 17, 1998, defendant was still in the custody ofthe Cook County jail when the Will County circuit court held ahearing on defendant's motion to reconsider. Defendant arguedthat his conditional release should not have been revoked becausehe had not voluntarily violated the terms of his conditional release.The court rejected the argument, stating that its decision to revokedefendant's conditional release was based on a concern for thepublic's safety because "what the experts told me is if he's not onmedication, he's a danger."

Defendant appealed. Again, he claimed that he did not fail tofulfill the conditions of his release because he did not voluntarilycease taking Depo Provera. On April 6, 2000, the appellate courtissued an unpublished order in which it found that the circuit courtdid not err in finding that defendant's failure to take Depo Provera,though involuntary, was a violation of the terms of his release.Looking to probation revocation cases for guidance, the appellatecourt ruled that a conditional release could be revoked eventhough the defendant was not culpable for the violation. Theappellate court affirmed the circuit court's order returningdefendant to the custody of the Department. We granteddefendant's petition for leave to appeal. 177 Ill. 2d R. 315.

ANALYSIS

On appeal to this court, defendant contends that the circuitcourt erred when it revoked his conditional release because he didnot fail to fulfill its terms. In making this claim, defendant initiallyargues that his release was based on the condition that he notvoluntarily stop taking Depo Provera. In the alternative, he arguesthat nonculpable behavior cannot form the basis for a violation ofa conditional release. In either case, he contends that, becausecessation of the medication was beyond his control, the circuitcourt erred when it found that he failed to fulfill the terms of therelease and revoked it. Defendant also presents a general claimthat the court, by revoking his release, violated his due processrights.

After reviewing the record, we find that the circuit court didnot err in finding that defendant failed to fulfill the conditions ofhis release. Nevertheless, we reverse the circuit court's orderrevoking defendant's release because we find that the circuit courtdid not adhere to the mandates of section 5-2-4 of the Code (730ILCS 5/5-2-4 (West 1998)).

When an individual has been acquitted of a crime by reasonof insanity, the acquittee's subsequent treatment is governed bysection 5-2-4 of the Code. This statutory provision authorizes theinvoluntary commitment of an insanity acquittee to theDepartment " 'to treat the individual's mental illness, and at thesame time protect him and society from his potentialdangerousness.' " People v. Pastewski, 164 Ill. 2d 189, 197(1995), quoting People v. Williams, 140 Ill. App. 3d 216, 228(1986). Our legislature, recognizing that " 'commitment for anypurpose constitutes a significant deprivation of liberty that requiresdue process protection' " (Foucha v. Louisiana, 504 U.S. 71, 80,118 L. Ed. 2d 437, 448, 112 S. Ct. 1780, 1785 (1992), quotingJones v. United States, 463 U.S. 354, 361, 77 L. Ed. 2d 694, 703,103 S. Ct. 3043, 3048 (1983)), and that grounds for confinementmust be established according to constitutionally adequateprocedures (Foucha v. Louisiana, 504 U.S. 71, 79, 118 L. Ed. 2d437, 447-48, 112 S. Ct. 1780, 1785 (1992), citing Jackson v.Indiana, 406 U.S. 715, 738, 32 L. Ed. 2d 435, 450-51, 92 S. Ct.1845, 1853 (1972)), instituted the procedures set forth in section5-2-4 to ensure that an insanity acquittee's liberty interests areprotected.

Section 5-2-4 of the Code promulgates standards forinvoluntarily committing insanity acquittees, for computing thelength of commitment, and for granting a conditional release ordischarge. 730 ILCS 5/5-2-4 (West 1998). According to theprovisions of section 5-2-4, an insanity acquittee may becommitted to the custody of the department only if it is shown, byclear and convincing evidence, that the acquittee is "subject toinvoluntary commitment" and "in need of mental health serviceson an inpatient basis." 730 ILCS 5/5-2-4(a)(1)(A), (a)(1)(B)(West 1998). "Subject to involuntary commitment" and "in needof mental health services on an inpatient basis" are terms of artdefined in the statute. See 730 ILCS 5/5-2-4(a)(1)(A), (a)(1)(B)(West 1998).

Once an insanity acquittee has been committed to the custodyof the Department, he may be detained only as long as hecontinues to be "subject to involuntary admission" and "in need of[inpatient] mental health services." 730 ILCS 5/5-2-4(b) (West1998). If, subsequent to initial admission, the court determines byclear and convincing evidence that the insanity acquittee no longermeets this criteria, but is still in need of mental health services, thecourt shall grant the insanity acquittee a conditional release. 730ILCS 5/5-2-4(g), (h) (West 1998). " 'Conditional Release' " isdefined by the Code as "the release from either the custody of theDepartment of Human Services or the custody of the Court of aperson who has been found not guilty by reason of insanity undersuch conditions as the Court may impose which reasonably assurethe defendant's satisfactory progress in treatment or habilitationand the safety of the defendant and others." 730 ILCS5/5-2-4(a)(1)(D) (West 1998). A conditional release "shall be fora period of five years, unless the defendant, the person or facilityrendering the treatment, therapy, program or outpatient care, or theState's Attorney petitions the Court for an extension of theconditional release period for an additional three years. Uponreceipt of such a petition, the Court shall hold a hearing consistentwith the provisions of this paragraph (a) and paragraph (f) of thisSection, shall determine whether the defendant should continue tobe subject to the terms of conditional release, and shall enter anorder either extending the defendant's period of conditionalrelease for a single additional three year period or discharging thedefendant. In no event shall the defendant's period of conditionalrelease exceed eight years." 730 ILCS 5/5-2-4(a)(1)(D) (West1998).

Although the statute does not speak in terms of "revocation"of a conditional release, the statute, in paragraph (i), provides:

"(i) If within the period of the defendant's conditionalrelease, the Court determines, after hearing evidence, thatthe defendant has not fulfilled the conditions of release,the Court shall order a hearing to be held consistent withthe provisions of paragraph (f) and (g) of this Section. Atsuch hearing, if the Court finds that the defendant issubject to involuntary admission or in need of mentalhealth services on an inpatient basis, it shall enter an orderremanding him or her to the Department of HumanServices or other facility. If the defendant is remanded tothe Department of Human Services, he or she shall beplaced in a secure setting unless the Court determines thatthere are compelling reasons that such placement is notnecessary. If the Court finds that the defendant continuesto be in need of mental health services but not on aninpatient basis, it may modify the conditions of theoriginal release in order to reasonably assure thedefendant's satisfactory progress in treatment and his orher safety and the safety of others. In no event shall suchconditional release be longer than eight years. Nothing inthis Section shall limit a Court's contempt powers or anyother powers of a Court." 730 ILCS 5/5-2-4(i) (West1998).

As noted, this provision makes reference to paragraph (f) andparagraph (g). Paragraph (f) provides that "the defendant, thefacility director, the State's Attorney, and the defendant'sattorney" shall be given notice of the time and place of the hearingand that "an impartial examination of the defendant by apsychiatrist or clinical psychologist *** who is not in the employof the Department" may be ordered upon the request of defensecounsel or the State or "if the Court feels it is appropriate." 730ILCS 5/5-2-4(f) (West 1998). Paragraph (g) requires that thecourt's findings "be established by clear and convincingevidence," places on the State the burden of proof and the burdenof going forward with the evidence if the hearing is being held "toreview the determination of the facility director that the defendantshould be transferred to a non-secure setting, discharged orconditionally released," and requires that "[t]he evidence shall bepresented in open Court with the right of confrontation andcross-examination." 730 ILCS 5/5-2-4(g) (West 1998).

Paragraph (i) of section 5-2-4 of the Code has not previouslybeen interpreted by this court. When interpreting any statute, theprimary objective is to ascertain and give effect to the legislature'sintent. People v. Lowe, 153 Ill. 2d 195, 201 (1992). The mostreliable indicator of legislative intent is the language of the statute.People v. Bole, 155 Ill. 2d 188, 195 (1993). When legislativeintent can be ascertained from the language of the statute, it willbe given effect without resorting to other aids for construction.People v. Lemons, 191 Ill. 2d 155 (2000). Statutory constructionis a question of law. Branson v. Department of Revenue, 168 Ill.2d 247, 254 (1995); People v. Savory, 309 Ill. App. 3d 408, 413(1999).

According to the plain language of section 5-2-4(i), aninsanity acquittee's conditional release is subject to review andrevocation if, in the first instance, the circuit court determines,after hearing evidence, that the defendant "has not fulfilled theconditions of release." Once this threshold determination has beenmade, the court must take further steps to determine whether theconditional release should be terminated and the defendantrecommitted.

In his appeal, defendant contends that the circuit court erredwhen it found that he failed to fulfill the conditions of his release.He further contends that, even if the circuit court was correct whenit found that he failed to fulfill the conditions of his release, hisconditional release should not have been revoked. We shallconsider these arguments separately.

Failure to Fulfill the Conditions of Release

In the case at bar, the circuit court found that defendant failedto fulfill a condition of his release because defendant was nottaking the medication Depo Provera. Initially, defendant takes theposition that this finding was error because "the actual conditionof [his] release was that he not voluntarily stop taking DepoProvera." Defendant contends he could have violated thiscondition of his release only if he unilaterally refused, ceased, orstopped taking Depo Provera. In this case, however, the evidencepresented at the hearing showed that he did not voluntarily ceasetaking Depo Provera. Thus, defendant contends, the trial courterred when it found that he violated this condition. We disagree.

Defendant's interpretation of the court's conditional releaseis too narrow. After examining the record and the written ordergranting the conditional release, we are convinced that defendant'svoluntary compliance with the medication order was never acondition of his release. The court's written release order plainlystates, "[The defendant] is to be conditionally released from thecustody of [the Department] upon condition that Defendant ***takes Depo Provera." Although the court admonished defendantthat he could not refuse to take Depo Provera, we do not interpretthe court's comments as evidence that the court intended to makedefendant's voluntary compliance a condition of the release.Rather, the record before us indicates that the admonishmentswere made because the circuit court was aware that defendant hadpreviously been granted a conditional release and, due to healthconcerns, had chosen to stop taking Depo Provera. Thereafter,defendant had a recurrence of pedophilic behavior. Thus, contraryto defendant's assertion, we find that the court, by advisingdefendant that he could not refuse to take Depo Provera, wasplacing defendant on notice that his continued use of DepoProvera was a condition of his release which he could notunilaterally choose to ignore.

In an alternative argument, defendant contends that, even ifhis continued use of Depo Provera was a condition of his release,his lack of culpability for the failure to take Depo Provera shouldhave precluded a finding that he failed to fulfill the conditions ofhis release. He argues that the appellate court erred when it appliedthe rationale employed in probation revocation cases to determinethat nonculpable conduct can form the basis for a finding that aninsanity acquittee failed to fulfill the conditions of a release.

We, however, agree with the appellate court below that acourt may find that an insanity acquittee has failed to fulfill theconditions of a release even if the insanity acquittee bears nopersonal responsibility for the violation. In reaching thisdetermination, we, like the appellate court, find it appropriate tolook to probation revocation cases for guidance.

It has been determined that "[p]ersonal culpability is notrequired for a court to revoke a sentence of probation" (People v.Allegri, 109 Ill. 2d 309, 314-15 (1985) (insanity defense notcognizable at a probation revocation proceeding); People v.Cooper, 146 Ill. App. 3d 596 (1986) (intoxication defenseunavailable at probation revocation proceedings)), because asentence of probation has as its core purposes the rehabilitation ofthe offender and the protection of the public and, "[w]hen thevaried purposes of probation are fully considered, it becomesreadily apparent that nonculpable conduct on the part of theprobationer may frustrate the goals of a probationary sentence"(People v. Davis, 123 Ill. App. 3d 349, 353 (1984) (unavailabilityof a drug- and alcohol-treatment program that would acceptdefendant was a violation of the probation order which justifiedrevocation)).

Similarly, when an insanity acquittee is granted a conditionalrelease, the court imposes terms which it deems necessary to"reasonably assure the defendant's satisfactory progress intreatment or habilitation and the safety of the defendant andothers." 730 ILCS 5/5-2-4(a)(1)(D) (West 1998). The goals of aconditional release, like the goals of probation, may be frustratedwhen the conditions are not being fulfilled, even if the insanityacquittee bears no personal culpability for the failure.

In the present case, the trial court granted defendant a releasefrom the custody of the Department and made his continued use ofDepo Provera a condition of his release. The record shows that thiscondition was included because medical testimony linkeddefendant's treatment with Depo Provera to his continued progressand the safety of the public. Thus, discontinuing use of themedication could have a deleterious effect on the goals ofdefendant's release. We conclude, therefore, that the unequivocalevidence that defendant was not taking Depo Provera, despite thelack of willful or volitional misconduct on defendant's part, wasproof that the conditions of defendant's release were not beingfulfilled. Accordingly, we affirm the circuit court's finding thatdefendant's use of Depo Provera was a condition of his releasewhich was not being fulfilled at the time of the court hearing onthe State's petition. By affirming the circuit court's finding thatdefendant was not fulfilling the conditions of his release, however,our inquiry does not come to a close. We must further considerwhether the circuit court's decision to revoke defendant's releasewas made in accord with statutory procedures.

Revocation of the Conditional Release

Paragraph (i) of section 5-2-4 states in pertinent part:

"(i) If within the period of the defendant's conditionalrelease, the Court determines, after hearing evidence, thatthe defendant has not fulfilled the conditions of release,the Court shall order a hearing to be held consistent withthe provisions of paragraph (f) and (g) of this Section. Atsuch hearing, if the Court finds that the defendant issubject to involuntary admission or in need of mentalhealth services on an inpatient basis, it shall enter an orderremanding him or her to the Department of HumanServices or other facility." 730 ILCS 5/5-2-4(i) (West1998).

The plain language of section 5-2-4(i) instructs that a findingthat an insanity acquittee has not fulfilled the conditions of releaseis simply the first step in the inquiry to determine whether aconditional release should be terminated. Pursuant to the languageof the statute, revocation of a conditional release does not followautomatically upon a finding that there has been a failure to fulfilla condition of the release. 730 ILCS 5/5-2-4(i) (West 1998). Thatis to say, failure to fulfill a condition of release is not, by itself,sufficient grounds for a finding that defendant is subject toinvoluntary recommitment. People v. Hager, 253 Ill. App. 3d 37,42 (1993). Rather, once a threshold finding that a condition hasnot been fulfilled is made, a hearing must be held, "consistent withthe provisions of paragraphs (f) and (g)" of section 5-2-4, atwhich time the court must determine whether the insanityacquittee is "subject to involuntary admission" or "in need ofmental health services on an inpatient basis." 730 ILCS 5/5-2-4(i)(West 1998). This standard, then, is the touchstone for anycommitment of an insanity acquittee, whether initial or otherwise.

When deciding whether an insanity acquittee is "subject toinvoluntary admission" and "in need of mental health services onan inpatient basis," courts have long held that the determinationmust be based upon explicit medical opinion regarding thedefendant's future conduct and cannot be based upon a merefinding of mental illness. People v. Robin, 312 Ill. App. 3d 710(2000); People v. Grant, 295 Ill. App. 3d 750 (1998); People v.Washington, 167 Ill. App. 3d 73 (1988); People v. Smith, 126 Ill.App. 3d 5, 9 (1984). See also In re Stephenson, 67 Ill. 2d 544(1977) (civil commitment must be based on clear and convincingevidence, including medical testimony). Indeed, it has beenrecognized that decisions which place a restraint on an insanityacquittee's liberty may violate substantive due process unless theyare grounded on professional judgment, "guided and informed by'normal professional standards.' " Lucas v. Peters, 318 Ill. App. 3d1, 14 (2000), citing Youngberg v. Romeo, 457 U.S. 307, 73 L. Ed.2d 28, 102 S. Ct. 2452 (1982). It has been held that an order ofinvoluntary commitment meets statutory requirements only whenthe evidence, based on a current evaluation of defendant's conductand state of mind, clearly establishes the need for inpatient care.Hager, 253 Ill. App. 3d at 41; see also Washington, 167 Ill. App.3d at 79, quoting People v. Bradley, 22 Ill. App. 3d 1076, 1084(1974) (order of involuntary commitment requires " 'freshevaluation' " of individual's conduct and state of mind).

Under section 5-2-4(i) of the Code, then, once it is shownthat the insanity acquittee has failed to fulfill the terms of aconditional release, the court must conduct a hearing to reconsiderthe grant of conditional release and determine whether, in light ofexpert testimony on defendant's current mental status, there isclear and convincing evidence that defendant's involuntaryreadmission to the Department is required or whether theconditional release should be continued, with or withoutmodification of the conditions of the original release. 730 ILCS5/5-2-4(i) (West 1998). These procedures are not precatory. Asthis court noted in Radazewski v. Cawley, 159 Ill. 2d 372, 378(1994):

"It is well settled that detention of an individual at amental health care facility implicates a substantial libertyinterest. (See Foucha v. Louisiana (1992), 504 U.S. 71,118 L. Ed. 2d 437, 112 S. Ct. 1780; Jones v. United States(1983), 463 U. S. 354, 77 L. Ed. 2d 694, 103 S. Ct. 3043;In re Robinson (1992), 151 Ill. 2d 126; In re Splett (1991),143 Ill. 2d 225; People v. Lang (1986), 113 Ill. 2d 407; Inre Stephenson (1977), 67 Ill. 2d 544.) Statutes involvinginvoluntary admission procedures are therefore construednarrowly unless such a construction would require 'theperformance of an empty formality.' (In re Splett, 143 Ill.2d at 232; see also Estate of Johnson v. Condell MemorialHospital (1988), 119 Ill. 2d 496, 507.) *** A hearing tovindicate the liberty interest of insanity acquittees is notan empty formality."

Examining the record in the case at bar, it is clear that thecircuit court's decision to revoke defendant's conditional releasewas not made in conformity with the statutory proceduresmandated by section 5-2-4 of the Code. There was only onehearing at which the State presented any evidence. The evidencethat was entered established that defendant was not taking DepoProvera as required by the court's conditional release order. Basedon that evidence alone, the circuit court revoked defendant'sconditional release and held that defendant was "subject toinvoluntary admission" and "in need of inpatient care." Thus, thecourt presumed, without any evidence, that without Depo Proveradefendant was subject to being involuntarily committed to thecustody of the Department. This was error.

The court's decision to revoke the release and recommitdefendant was not grounded on clear and convincing evidence thatdefendant was "subject to involuntary admission" and "in need ofmental health services on an inpatient basis." There was no clearand convincing evidence that, under the circumstances at the timeof the hearing, defendant was mentally ill and, because of hismental illness, reasonably expected to inflict serious physical harmupon himself or another in the near future, or unable to provide forhis basic physical needs so as to guard himself from serious harm(730 ILCS 5/5-2-4(a)(1)(A) (West 1998)) or, though not subjectto involuntary admission, reasonably expected to inflict seriousphysical harm upon himself or another and, as a result, wouldbenefit from inpatient care or is in need of inpatient care (730ILCS 5/5-2-4(a)(1)(B) (West 1998)). These are determinationsthat cannot be made without the benefit of a current medicalevaluation of defendant's mental status. Because the circuit courthad before it no evidence regarding defendant's mental conditionat the time of the hearing, the decision does not meet the clear andconvincing standard and cannot be sustained.

We recognize that the court was aware that in 1996, whendefendant's conditional release was granted, defendant'scontinuation on Depo Provera was instrumental to his treatmentand release. However, the court's reliance on that evidence tosupport defendant's involuntary recommitment is misplaced. Thehearing in this matter took place in 1998, two years after defendantwas granted the release conditioned on his use of Depo Provera.There was no evidence presented to the court that, at the time ofthis hearing, defendant's mental condition could not besuccessfully treated on an outpatient basis without Depo Provera.Nor was there any way that the court could assess whetherdefendant's treatment with a substitute medication was adequateto protect him and others from possible dangers stemming fromdefendant's mental condition. In short, without medical testimonyregarding defendant's mental status at the time of the hearing, thecircuit court could not accurately determine defendant's presentneed for recommitment and inpatient care or his eligibility forcontinued conditional release. For this reason, the court's findingsthat, without Depo Provera, defendant presented a danger to thepublic and was "subject to involuntary admission" and "in need ofin patient care" were unsupported by clear and convincingevidence.

There is an additional reason why the circuit court's decisionto revoke defendant's conditional release was not made inconformity with the statutory procedures mandated by section5-2-4(i) of the Code. According to this provision, after a courtfinds that an insanity acquittee has not fulfilled the conditions ofa release, the court may revoke the release and recommit thedefendant to the custody of the Department if defendant meets thecriteria for involuntary admission, or it may continue theconditional release and, if necessary, "modify the conditions of theoriginal release in order to reasonably assure the defendant'ssatisfactory progress in treatment and his *** safety and the safetyof others." 730 ILCS 5/5-2-4(i) (West 1998).

This procedure is similar to the scheme used in decidingwhether to grant a probation revocation petition. Paragraph (e) ofsection 5-6-4 of the Unified Code of Corrections states:

"If the court finds that the offender has violated acondition at any time prior to the expiration ortermination of the period, it may continue him on theexisting sentence, with or without modifying or enlargingthe conditions, or may impose any other sentence that wasavailable under Section 5-5-3 at the time of initialsentencing." 730 ILCS 5/5-6-4(e) (West 1998).

Due to this similarity, we, once again, consult probationrevocation cases for guidance in interpreting section 5-2-4(i) anddetermining whether the circuit court's decision to revokedefendant's conditional release was proper.

In People v. Davis, 123 Ill. App. 3d 349 (1984), the circuitcourt had revoked a defendant's sentence of probation, which wasconditioned on his securing inpatient treatment for drug- andalcohol-dependency problems, when evidence presented at therevocation hearing established that there were no treatmentfacilities in the state willing to accept the defendant for inpatienttreatment. On review, it was found that the court did not abuse itsdiscretion in revoking defendant's probation because "defendanthad not achieved and could not achieve the principal objective ofhis probation." (Emphasis added.) Davis, 123 Ill. App. 3d at 354.

Similarly, in People v. Welch, 78 Ill. App. 3d 184 (1979), thedefendant's probation was conditioned on his "treatment at theIllinois Psychiatric Institute" and it was unequivocally establishedat the revocation hearing that defendant was not receivingtreatment. Nevertheless, the reviewing court reversed the orderrevoking defendant's release because the evidence did notestablish that the goal of the probation order could not beachieved. This is because defendant testified that he had beenturned away by the receptionist at the Psychiatric Institute and,after informing his probation officer of the situation, received noassistance in making treatment arrangements he required. Onreview, the court said, "[W]ithout attempting to fix blame, itappears to us that the sole objective at this time should be toattempt to remedy the situation and to obtain the needed treatmentfor defendant." Welch, 78 Ill. App. 3d at 187.

Applying the rationale of Davis and Welch to the present case,we find that the circuit court's decision to revoke defendant'sconditional release did not meet the clear and convincing standardbecause the evidence relied on by the circuit court failed toestablish that terms of defendant's conditional release could not beachieved.

Defendant testified that he was willing to take Depo Provera,but that he had been prevented from doing so by prison authorities.Defendant further testified that he had gone as far as obtainingcourt orders which demanded that prison authorities administerDepo Provera to him. These court orders were ignored, apparentlybecause of liability concerns stemming from the fact that DepoProvera was not FDA approved.

The circuit court made no factual determination regarding thelegitimacy of the prison authorities' liability concerns, nor did itattempt to remedy the situation. In sum, the court neverdetermined, by clear and convincing evidence, that the conditionof defendant's release, i.e., treatment with Depo Provera, could notbe achieved.

We conclude, then, that the statutory clear and convincingstandard was not met in the case at bar for two reasons. First, thecourt failed to determine, based on expert medical testimony, thatdefendant's use of Depo Provera, to the exclusion of othermedications, was necessary to reasonably assure his satisfactoryprogress in treatment on an outpatient basis and his safety and thesafety of others. For that reason, the circuit court's determinationthat defendant was subject to involuntary admission and in needof inpatient care was not supported by clear and convincingevidence. Second, in light of defendant's testimony that he wasbeing prevented from fulfilling the condition of his release, thecircuit court had an obligation to determine whether the conditioncould be achieved, that is, it had to determine whether DepoProvera could be made available to defendant. Because the courtdid not address this matter, its decision to revoke defendant'sconditional release did not satisfy the clear and convincingstandard.

" 'The primary objective of section 5-2-4 is to insure thatinsanity acquittees are not indeterminately institutionalized' "(Turner v. Campagna, 281 Ill. App. 3d 1090, 1094 (1996), quotingPeople v. Winston, 191 Ill. App. 3d 948, 959 (1989)), and that theintrusion on liberty interests is kept at a minimum. We concludethat, in the present case, the circuit court failed to comply with theprocedures and standards required by section 5-2-4 of the Code.Under the circumstances of this case, the defendant's failure tofulfill the conditions of his release-his failure to take DepoProvera-did not provide the circuit court with clear andconvincing evidence that defendant was subject to involuntaryadmission and in need of inpatient care. Nor was there clear andconvincing evidence that defendant could not be maintained on anoutpatient basis. Because the statutory procedures mandated bysection 5-2-4 were not followed, the circuit court erred when itrevoked defendant's conditional release.

Defendant makes the additional argument that his due processrights were violated because the circuit court revoked hisconditional release without taking into consideration the State'sculpability for his failure to fulfill the conditions of his release. Weacknowledge that there is a substantive component to the notionof due process which bars arbitrary, wrongful governmentalaction. Foucha v. Louisiana, 504 U.S. 71, 80, 118 L. Ed. 2d 437,448, 112 S. Ct. 1780, 1785 (1992). However, because we find thatthe circuit court's decision to revoke defendant's conditionalrelease was not based on clear and convincing evidence and,therefore, did not meet the standard of proof required by statute,we need not consider whether the court's decision to revoke alsoviolated due process.

CONCLUSION

We agree with the circuit court's finding that defendant failedto fulfill the conditions of his release because he was no longertaking Depo Provera. However, for the reasons stated, we reversethe order revoking defendant's conditional release and remand tothe circuit court for further proceedings consistent with thisopinion. The judgment of the appellate court, affirming the circuitcourt's order, is reversed.

Appellate court judgment reversed;

circuit court order reversed;

cause remanded.

1. ¹The record indicates that Depo Provera can cause liver problems,increased sugar levels, and diabetes.

2. ²At the time the revocation hearing was held, two years had elapsedsince defendant's arrest and defendant had not yet been tried on theCook County charges. The record provides no explanation for the delay.