Legal Memorandum: Defining what a sexually violent person is and discharging them

Issue: Under Illinois law, what is an individual who has been committed as a sexually violent person (SVP) and seeks to be discharged establish in order to be successful?

A committed individual has three mechanisms under which he may seek a discharge: (1) the Secretary of Human Services (Secretary) determines that the individual is no longer an SVP and authorizes the committed individual to petition the court for discharge ([statref] 725 ILCS 207/65(a)(1) (West 2008)[/statref]); (2) the committed individual undergoes one of the periodic examinations and does not affirmatively waive the right to petition the court for discharge ([statref]725 ILCS 207/65(b)(1) (West 2008)[/statref]); and (3) the committed individual petitions for discharge at a time other than the periodic examination and without approval of the Secretary ([statref]725 ILCS 207/70 (West 2008)[/statref]).

Under the second mechanism, a court is required to "set a probable cause hearing to determine whether facts exist that warrant a hearing on whether the person is still a sexually violent person." Id. Section 65(b)(1) of the Act provides that "[i]f a person does not file a petition for discharge, yet fails to waive the right to petition under this Section, then the probable cause hearing consists only of a review of the reexamination reports and arguments on behalf of the parties." Id.

In In re Detention of Stanbridge, 2012 IL 112337, the supreme court noted that a probable cause hearing on a petition for discharge is " ‘intended to be preliminary in nature, a "summary proceeding to determine essential or basic facts as to probability" remaining cognizant of the respondent’s liberty rights.’ " Stanbridge, 2012 IL 112337, ¶ 59 (quoting Hardin, […]