98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB5460

 

Introduced , by Rep. Kenneth Dunkin

 

SYNOPSIS AS INTRODUCED:
 
720 ILCS 5/7-1  from Ch. 38, par. 7-1
725 ILCS 5/116-2.2 new
725 ILCS 120/4.5
730 ILCS 5/5-5-3.1  from Ch. 38, par. 1005-5-3.1

    Amends the Criminal Code of 2012. Provides that a person is also justified in the use of deadly force if he or she is or has been the victim of domestic violence and the effects of the domestic violence cause him or her to have a reasonable belief that the force is necessary to prevent the perpetrator of the domestic violence from causing death or great bodily harm to himself or herself or another. Defines "domestic violence". Amends the Code of Criminal Procedure of 1963. Permits a motion for sentence modification for domestic violence victims. Amends the Rights of Crime Victims and Witnesses Act to provide for notification by the office of the State's Attorney upon request of the crime victim of any request for resentencing filed by the defendant and of the date, time, and place of any hearing concerning the motion. Amends the Unified Code of Corrections. Provides that it is a mitigating factor in sentencing if at the time of the offense, the defendant was or had been the victim of domestic violence and the effect of the domestic violence tended to excuse or justify the defendant's criminal conduct.


LRB098 17596 RLC 52707 b

 

 

A BILL FOR

 

HB5460LRB098 17596 RLC 52707 b

1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Criminal Code of 2012 is amended by changing
5Section 7-1 as follows:
 
6    (720 ILCS 5/7-1)  (from Ch. 38, par. 7-1)
7    Sec. 7-1. Use of force in defense of person.
8    (a) A person is justified in the use of force against
9another when and to the extent that he or she reasonably
10believes that such conduct is necessary to defend himself or
11herself or another against such other's imminent use of
12unlawful force. However, he or she is justified in the use of
13force which is intended or likely to cause death or great
14bodily harm only if (i) he or she reasonably believes that such
15force is necessary to prevent imminent death or great bodily
16harm to himself or herself or another, or the commission of a
17forcible felony, or if (ii) he or she is or has been the victim
18of domestic violence and the effects of the domestic violence
19cause him or her to have a reasonable belief that the force is
20necessary to prevent the perpetrator of the domestic violence
21from causing death or great bodily harm to himself or herself
22or another. A "reasonable belief" under clause (ii) of this
23subsection (a) means a belief that would be held by an

 

 

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1individual in that person's situation. For the purposes of
2clause (ii), "domestic violence" means "abuse" as defined in
3Section 103 of the Illinois Domestic Violence Act of 1986.
4    (b) In no case shall any act involving the use of force
5justified under this Section give rise to any claim or
6liability brought by or on behalf of any person acting within
7the definition of "aggressor" set forth in Section 7-4 of this
8Article, or the estate, spouse, or other family member of such
9a person, against the person or estate of the person using such
10justified force, unless the use of force involves willful or
11wanton misconduct.
12(Source: P.A. 93-832, eff. 7-28-04.)
 
13    Section 10. The Code of Criminal Procedure of 1963 is
14amended by adding Section 116-2.2 as follows:
 
15    (725 ILCS 5/116-2.2 new)
16    Sec. 116-2.2. Motion for sentence modification for
17domestic violence victims.
18    (a) As used in this Section:
19        "Domestic violence" means "abuse" as defined in
20    Section 103 of the Illinois Domestic Violence Act of 1986.
21        "Forcible felony" has the meaning ascribed to the term
22    in Section 2-8 of the Criminal Code of 2012.
23    (b) A defendant may make a motion for resentencing in the
24circuit court of the county in which he or she was originally

 

 

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1sentenced, when the conviction was for a forcible felony or for
2solicitation, attempt, or conspiracy to commit a forcible
3felony; provided that:
4        (1) at the time of the offense the defendant was or had
5    been the victim of domestic violence;
6        (2) the effects of the domestic violence tended to
7    excuse or justify the defendant's criminal conduct; and
8        (3) the motion shall state why the facts giving rise to
9    this motion were not presented at sentencing, and shall be
10    made with due diligence, after the defendant has ceased to
11    be a victim of domestic violence or has sought services for
12    victims of domestic violence, subject to reasonable
13    concerns for the safety of the defendant, family members of
14    the defendant, or other victims of the domestic violence
15    that may be jeopardized by the bringing of the motion, or
16    for other reasons consistent with the purpose of this
17    Section.
18    (c) The burden of proof is on the defendant to establish,
19by a preponderance of the evidence, that at the time of the
20offense the defendant was or had been the victim of domestic
21violence, and that the effects of the domestic violence tended
22to excuse or justify the defendant's criminal conduct. Evidence
23of the domestic violence may include, but is not limited to:
24        (1) civil or criminal court records, proceedings,
25    pre-sentence reports, social services records, hospital
26    records, sworn statements from a witness, law enforcement

 

 

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1    records, domestic incident reports, police reports,
2    witness statements prepared or elicited by law enforcement
3    officers, or orders of protection;
4        (2) local and Department of Corrections records; or
5        (3) verification of consultation with a licensed
6    medical or mental health care provider, employee of a court
7    acting within the scope of his or her employment, clergy,
8    attorney, social worker, or rape crisis counselor,
9    advocate from an agency assisting victims of domestic
10    violence, or other professional from whom the defendant has
11    sought assistance in addressing the trauma associated with
12    domestic violence.
13Alternatively, the court may consider any other evidence it
14deems of sufficient credibility and probative value in
15determining whether the defendant was or had been the victim of
16domestic violence at the time of the offense, and whether the
17effects of the domestic violence tended to excuse or justify
18the defendant's criminal conduct. This other evidence may
19include but is not limited to the court file of the proceeding
20in which the defendant was convicted, any action taken by an
21appellate court in the proceeding, and any transcripts of the
22proceeding. In its discretion the court may order the defendant
23brought before the court for the hearing.
24    (d) Within 90 days after the filing and docketing of a
25motion, the court shall examine the motion and enter an order
26on the motion under this Section.

 

 

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1        (1) If the defendant is without counsel and alleges
2    that he or she is without means to procure counsel, he or
3    she shall state whether or not he or she wishes counsel to
4    be appointed to represent the defendant. If appointment of
5    counsel is requested, the court shall appoint counsel if
6    satisfied that the defendant has no means to procure
7    counsel.
8        (2) If the court determines the motion is frivolous or
9    is patently without merit, it shall dismiss the motion in a
10    written order, specifying the findings of fact and
11    conclusions of law it made in reaching its decision. The
12    order of dismissal is a final judgment and shall be served
13    upon the defendant by certified mail within 10 days of its
14    entry.
15        (3) If the motion is not dismissed under this Section,
16    the court shall order the motion to be docketed for further
17    consideration and hearing within 180 days of the filing of
18    the motion. Continuances may be granted as the court deems
19    appropriate.
20    (e) Within 30 days after the making of an order under
21paragraph (3) of subsection (d) or within any further time as
22the court may set, the State shall answer or move to dismiss.
23In the event that a motion to dismiss is filed and denied, the
24State must file an answer within 20 days after the denial. No
25other or further pleadings shall be filed except as the court
26may order on its own motion or on that of either party. The

 

 

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1court may in its discretion grant leave, at any stage of the
2proceeding prior to entry of judgment, to withdraw the
3defendant's motion. The court may in its discretion make the
4order as to amendment of the motion or any other pleading, or
5as to pleading over, or filing further pleadings, or extending
6the time of filing any pleading other than the original motion,
7as shall be appropriate, just, and reasonable and as generally
8provided in civil cases.
9    (f) The court may grant the motion if it determines that at
10the time of the offense the defendant was or had been the
11victim of domestic violence, and the effects of the domestic
12violence tended to excuse or justify the defendant's criminal
13conduct.
14    (g) If the court finds in favor of the defendant, it may
15reduce the sentence in accordance with the current factors in
16mitigation in sentencing under Section 5-5-3.1 of the Unified
17Code of Corrections, as may be necessary and proper.
 
18    Section 15. The Rights of Crime Victims and Witnesses Act
19is amended by changing Section 4.5 as follows:
 
20    (725 ILCS 120/4.5)
21    Sec. 4.5. Procedures to implement the rights of crime
22victims. To afford crime victims their rights, law enforcement,
23prosecutors, judges and corrections will provide information,
24as appropriate of the following procedures:

 

 

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1    (a) At the request of the crime victim, law enforcement
2authorities investigating the case shall provide notice of the
3status of the investigation, except where the State's Attorney
4determines that disclosure of such information would
5unreasonably interfere with the investigation, until such time
6as the alleged assailant is apprehended or the investigation is
7closed.
8    (a-5) When law enforcement authorities re-open a closed
9case to resume investigating, they shall provide notice of the
10re-opening of the case, except where the State's Attorney
11determines that disclosure of such information would
12unreasonably interfere with the investigation.
13    (b) The office of the State's Attorney:
14        (1) shall provide notice of the filing of information,
15    the return of an indictment by which a prosecution for any
16    violent crime is commenced, or the filing of a petition to
17    adjudicate a minor as a delinquent for a violent crime;
18        (2) shall provide notice of the date, time, and place
19    of trial;
20        (3) or victim advocate personnel shall provide
21    information of social services and financial assistance
22    available for victims of crime, including information of
23    how to apply for these services and assistance;
24        (3.5) or victim advocate personnel shall provide
25    information about available victim services, including
26    referrals to programs, counselors, and agencies that

 

 

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1    assist a victim to deal with trauma, loss, and grief;
2        (4) shall assist in having any stolen or other personal
3    property held by law enforcement authorities for
4    evidentiary or other purposes returned as expeditiously as
5    possible, pursuant to the procedures set out in Section
6    115-9 of the Code of Criminal Procedure of 1963;
7        (5) or victim advocate personnel shall provide
8    appropriate employer intercession services to ensure that
9    employers of victims will cooperate with the criminal
10    justice system in order to minimize an employee's loss of
11    pay and other benefits resulting from court appearances;
12        (6) shall provide information whenever possible, of a
13    secure waiting area during court proceedings that does not
14    require victims to be in close proximity to defendant or
15    juveniles accused of a violent crime, and their families
16    and friends;
17        (7) shall provide notice to the crime victim of the
18    right to have a translator present at all court proceedings
19    and, in compliance with the federal Americans with
20    Disabilities Act of 1990, the right to communications
21    access through a sign language interpreter or by other
22    means;
23        (8) in the case of the death of a person, which death
24    occurred in the same transaction or occurrence in which
25    acts occurred for which a defendant is charged with an
26    offense, shall notify the spouse, parent, child or sibling

 

 

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1    of the decedent of the date of the trial of the person or
2    persons allegedly responsible for the death;
3        (9) shall inform the victim of the right to have
4    present at all court proceedings, subject to the rules of
5    evidence, an advocate or other support person of the
6    victim's choice, and the right to retain an attorney, at
7    the victim's own expense, who, upon written notice filed
8    with the clerk of the court and State's Attorney, is to
9    receive copies of all notices, motions and court orders
10    filed thereafter in the case, in the same manner as if the
11    victim were a named party in the case;
12        (9.5) shall inform the victim of (A) the victim's right
13    under Section 6 of this Act to make a victim impact
14    statement at the sentencing hearing; (B) the right of the
15    victim's spouse, guardian, parent, grandparent and other
16    immediate family and household members under Section 6 of
17    this Act to present an impact statement at sentencing; and
18    (C) if a presentence report is to be prepared, the right of
19    the victim's spouse, guardian, parent, grandparent and
20    other immediate family and household members to submit
21    information to the preparer of the presentence report about
22    the effect the offense has had on the victim and the
23    person;
24        (10) at the sentencing hearing shall make a good faith
25    attempt to explain the minimum amount of time during which
26    the defendant may actually be physically imprisoned. The

 

 

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1    Office of the State's Attorney shall further notify the
2    crime victim of the right to request from the Prisoner
3    Review Board information concerning the release of the
4    defendant under subparagraph (d)(1) of this Section;
5        (11) shall request restitution at sentencing and shall
6    consider restitution in any plea negotiation, as provided
7    by law; and
8        (12) shall, upon the court entering a verdict of not
9    guilty by reason of insanity, inform the victim of the
10    notification services available from the Department of
11    Human Services, including the statewide telephone number,
12    under subparagraph (d)(2) of this Section.
13    (c) At the written request of the crime victim, the office
14of the State's Attorney shall:
15        (1) provide notice a reasonable time in advance of the
16    following court proceedings: preliminary hearing, any
17    hearing the effect of which may be the release of defendant
18    from custody, or to alter the conditions of bond and the
19    sentencing hearing. The crime victim shall also be notified
20    of the cancellation of the court proceeding in sufficient
21    time, wherever possible, to prevent an unnecessary
22    appearance in court;
23        (2) provide notice within a reasonable time after
24    receipt of notice from the custodian, of the release of the
25    defendant on bail or personal recognizance or the release
26    from detention of a minor who has been detained for a

 

 

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1    violent crime;
2        (3) explain in nontechnical language the details of any
3    plea or verdict of a defendant, or any adjudication of a
4    juvenile as a delinquent for a violent crime;
5        (4) where practical, consult with the crime victim
6    before the Office of the State's Attorney makes an offer of
7    a plea bargain to the defendant or enters into negotiations
8    with the defendant concerning a possible plea agreement,
9    and shall consider the written victim impact statement, if
10    prepared prior to entering into a plea agreement;
11        (5) provide notice of the ultimate disposition of the
12    cases arising from an indictment or an information, or a
13    petition to have a juvenile adjudicated as a delinquent for
14    a violent crime;
15        (6) provide notice of any appeal taken by the defendant
16    and information on how to contact the appropriate agency
17    handling the appeal;
18        (7) provide notice of any request for post-conviction
19    review filed by the defendant under Article 122 of the Code
20    of Criminal Procedure of 1963, and of the date, time and
21    place of any hearing concerning the petition. Whenever
22    possible, notice of the hearing shall be given in advance;
23        (7.5) provide notice of any request for resentencing
24    filed by the defendant under Section 116-2.2 of the Code of
25    Criminal Procedure of 1963, and of the date, time, and
26    place of any hearing concerning the motion;

 

 

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1        (8) forward a copy of any statement presented under
2    Section 6 to the Prisoner Review Board to be considered by
3    the Board in making its determination under subsection (b)
4    of Section 3-3-8 of the Unified Code of Corrections.
5    (d)(1) The Prisoner Review Board shall inform a victim or
6any other concerned citizen, upon written request, of the
7prisoner's release on parole, aftercare release, mandatory
8supervised release, electronic detention, work release,
9international transfer or exchange, or by the custodian of the
10discharge of any individual who was adjudicated a delinquent
11for a violent crime from State custody and by the sheriff of
12the appropriate county of any such person's final discharge
13from county custody. The Prisoner Review Board, upon written
14request, shall provide to a victim or any other concerned
15citizen a recent photograph of any person convicted of a
16felony, upon his or her release from custody. The Prisoner
17Review Board, upon written request, shall inform a victim or
18any other concerned citizen when feasible at least 7 days prior
19to the prisoner's release on furlough of the times and dates of
20such furlough. Upon written request by the victim or any other
21concerned citizen, the State's Attorney shall notify the person
22once of the times and dates of release of a prisoner sentenced
23to periodic imprisonment. Notification shall be based on the
24most recent information as to victim's or other concerned
25citizen's residence or other location available to the
26notifying authority.

 

 

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1    (2) When the defendant has been committed to the Department
2of Human Services pursuant to Section 5-2-4 or any other
3provision of the Unified Code of Corrections, the victim may
4request to be notified by the releasing authority of the
5approval by the court of an on-grounds pass, a supervised
6off-grounds pass, an unsupervised off-grounds pass, or
7conditional release; the release on an off-grounds pass; the
8return from an off-grounds pass; transfer to another facility;
9conditional release; escape; death; or final discharge from
10State custody. The Department of Human Services shall establish
11and maintain a statewide telephone number to be used by victims
12to make notification requests under these provisions and shall
13publicize this telephone number on its website and to the
14State's Attorney of each county.
15    (3) In the event of an escape from State custody, the
16Department of Corrections or the Department of Juvenile Justice
17immediately shall notify the Prisoner Review Board of the
18escape and the Prisoner Review Board shall notify the victim.
19The notification shall be based upon the most recent
20information as to the victim's residence or other location
21available to the Board. When no such information is available,
22the Board shall make all reasonable efforts to obtain the
23information and make the notification. When the escapee is
24apprehended, the Department of Corrections or the Department of
25Juvenile Justice immediately shall notify the Prisoner Review
26Board and the Board shall notify the victim.

 

 

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1    (4) The victim of the crime for which the prisoner has been
2sentenced shall receive reasonable written notice not less than
330 days prior to the parole or aftercare release hearing and
4may submit, in writing, on film, videotape or other electronic
5means or in the form of a recording or in person at the parole
6or aftercare release hearing or if a victim of a violent crime,
7by calling the toll-free number established in subsection (f)
8of this Section, information for consideration by the Prisoner
9Review Board. The victim shall be notified within 7 days after
10the prisoner has been granted parole or aftercare release and
11shall be informed of the right to inspect the registry of
12parole or aftercare release decisions, established under
13subsection (g) of Section 3-3-5 of the Unified Code of
14Corrections. The provisions of this paragraph (4) are subject
15to the Open Parole Hearings Act.
16    (5) If a statement is presented under Section 6, the
17Prisoner Review Board shall inform the victim of any order of
18discharge entered by the Board pursuant to Section 3-3-8 of the
19Unified Code of Corrections.
20    (6) At the written request of the victim of the crime for
21which the prisoner was sentenced or the State's Attorney of the
22county where the person seeking parole or aftercare release was
23prosecuted, the Prisoner Review Board shall notify the victim
24and the State's Attorney of the county where the person seeking
25parole or aftercare release was prosecuted of the death of the
26prisoner if the prisoner died while on parole or aftercare

 

 

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1release or mandatory supervised release.
2    (7) When a defendant who has been committed to the
3Department of Corrections, the Department of Juvenile Justice,
4or the Department of Human Services is released or discharged
5and subsequently committed to the Department of Human Services
6as a sexually violent person and the victim had requested to be
7notified by the releasing authority of the defendant's
8discharge, conditional release, death, or escape from State
9custody, the releasing authority shall provide to the
10Department of Human Services such information that would allow
11the Department of Human Services to contact the victim.
12    (8) When a defendant has been convicted of a sex offense as
13defined in Section 2 of the Sex Offender Registration Act and
14has been sentenced to the Department of Corrections or the
15Department of Juvenile Justice, the Prisoner Review Board shall
16notify the victim of the sex offense of the prisoner's
17eligibility for release on parole, aftercare release,
18mandatory supervised release, electronic detention, work
19release, international transfer or exchange, or by the
20custodian of the discharge of any individual who was
21adjudicated a delinquent for a sex offense from State custody
22and by the sheriff of the appropriate county of any such
23person's final discharge from county custody. The notification
24shall be made to the victim at least 30 days, whenever
25possible, before release of the sex offender.
26    (e) The officials named in this Section may satisfy some or

 

 

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1all of their obligations to provide notices and other
2information through participation in a statewide victim and
3witness notification system established by the Attorney
4General under Section 8.5 of this Act.
5    (f) To permit a victim of a violent crime to provide
6information to the Prisoner Review Board for consideration by
7the Board at a parole or aftercare release hearing of a person
8who committed the crime against the victim in accordance with
9clause (d)(4) of this Section or at a proceeding to determine
10the conditions of mandatory supervised release of a person
11sentenced to a determinate sentence or at a hearing on
12revocation of mandatory supervised release of a person
13sentenced to a determinate sentence, the Board shall establish
14a toll-free number that may be accessed by the victim of a
15violent crime to present that information to the Board.
16(Source: P.A. 97-457, eff. 1-1-12; 97-572, eff. 1-1-12; 97-813,
17eff. 7-13-12; 97-815, eff. 1-1-13; 98-372, eff. 1-1-14; 98-558,
18eff. 1-1-14; revised 9-24-13.)
 
19    Section 20. The Unified Code of Corrections is amended by
20changing Section 5-5-3.1 as follows:
 
21    (730 ILCS 5/5-5-3.1)  (from Ch. 38, par. 1005-5-3.1)
22    Sec. 5-5-3.1. Factors in Mitigation.
23    (a) The following grounds shall be accorded weight in favor
24of withholding or minimizing a sentence of imprisonment:

 

 

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1        (1) The defendant's criminal conduct neither caused
2    nor threatened serious physical harm to another.
3        (2) The defendant did not contemplate that his criminal
4    conduct would cause or threaten serious physical harm to
5    another.
6        (3) The defendant acted under a strong provocation.
7        (4) There were substantial grounds tending to excuse or
8    justify the defendant's criminal conduct, though failing
9    to establish a defense.
10        (5) The defendant's criminal conduct was induced or
11    facilitated by someone other than the defendant.
12        (6) The defendant has compensated or will compensate
13    the victim of his criminal conduct for the damage or injury
14    that he sustained.
15        (7) The defendant has no history of prior delinquency
16    or criminal activity or has led a law-abiding life for a
17    substantial period of time before the commission of the
18    present crime.
19        (8) The defendant's criminal conduct was the result of
20    circumstances unlikely to recur.
21        (9) The character and attitudes of the defendant
22    indicate that he is unlikely to commit another crime.
23        (10) The defendant is particularly likely to comply
24    with the terms of a period of probation.
25        (11) The imprisonment of the defendant would entail
26    excessive hardship to his dependents.

 

 

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1        (12) The imprisonment of the defendant would endanger
2    his or her medical condition.
3        (13) The defendant was intellectually disabled as
4    defined in Section 5-1-13 of this Code.
5        (14) The defendant sought or obtained emergency
6    medical assistance for an overdose and was convicted of a
7    Class 3 felony or higher possession, manufacture, or
8    delivery of a controlled, counterfeit, or look-alike
9    substance or a controlled substance analog under the
10    Illinois Controlled Substances Act or a Class 2 felony or
11    higher possession, manufacture or delivery of
12    methamphetamine under the Methamphetamine Control and
13    Community Protection Act.
14        (15) At the time of the offense, the defendant was or
15    had been the victim of domestic violence and the effects of
16    the domestic violence tended to excuse or justify the
17    defendant's criminal conduct. As used in this paragraph
18    (15), "domestic violence" means "abuse" as defined in
19    Section 103 of the Illinois Domestic Violence Act of 1986.
20    (b) If the court, having due regard for the character of
21the offender, the nature and circumstances of the offense and
22the public interest finds that a sentence of imprisonment is
23the most appropriate disposition of the offender, or where
24other provisions of this Code mandate the imprisonment of the
25offender, the grounds listed in paragraph (a) of this
26subsection shall be considered as factors in mitigation of the

 

 

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1term imposed.
2(Source: P.A. 97-227, eff. 1-1-12; 97-678, eff. 6-1-12; 98-463,
3eff. 8-16-13.)