Right to counsel

No hearing can be conducted on a petition for commitment of a person on the ground that such person is sexually violent unless such a person is represented by counsel.  See 725 Ill. Comp. Stat. Ann. 207/25(c)(1).  If such a person is indigent, then the court must appoint counsel.  Id. (“[T]he person who is the subject of the petition has the right: (1) To be present and to be represented by counsel.  If the person is indigent, the court shall appoint counsel.”).

In People v. Rainey, the Appellate Court of Illinois held that the right to counsel includes the right to the effective assistance of counsel.  758 N.E.2d 492, 501-03 (Ill. App. Ct. 2001).  In so holding, the Rainey court relied, at least in-part, on then-existing statutory language that stated “‘[a]ll constitutional rights available to a defendant in a criminal proceeding are available’ to defendants on trial under the Act. 725 ILCS 207/35(b).” Id.  Although this specific language has since been removed, courts continue to find that the right includes the right to effective assistance. See In re Commitment of Moore, 221 N.E.3d 1113 (Ill. App. Ct. 2023) [relying on Rainey and Strickland v. Washington, 466 U.S. 668 (1984)].

Finally, in In re Det. of Harold Powell, the appellate court held that the right to counsel does not extend to an “initial psychological evaluation” since the statute states that the right to counsel applies “at any hearing conducted under this Act”, and the evaluation is not a hearing. 2016 IL App (1st) 130795-U, ¶ 29 (Ill. App. Ct. 2016) (unpublished).  Please note that pursuant to Ill. Sup. Ct. Rule 23, In re Det. of Harold Powell may not be cited as precedent.  It is included merely for illustrative purposes.