HB5330 97TH GENERAL ASSEMBLY

  
  

 


 
97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB5330

 

Introduced 2/8/2012, by Rep. Brandon W. Phelps

 

SYNOPSIS AS INTRODUCED:
 
725 ILCS 207/21 new
725 ILCS 207/55
725 ILCS 207/60
725 ILCS 207/65
725 ILCS 207/70 rep.
730 ILCS 5/3-3-4  from Ch. 38, par. 1003-3-4
730 ILCS 5/3-3-5  from Ch. 38, par. 1003-3-5

    Amends the Sexually Violent Persons Commitment Act. Establishes procedures for serving a petition upon a person who is alleged to be sexually violent. Provides that if a person has been committed as a sexually violent person and has not been discharged, the Department of Human Services shall submit a written report to the court on his or her mental condition at least once every 12 months after his or her initial commitment for the purpose of determining (1) whether the person has made sufficient progress in treatment to be conditionally released, and (2) whether the person's condition has so changed since the most recent periodic reexamination (or initial commitment, if there has not yet been a periodic reexamination) that he or she is no longer a sexually violent person. Provides that at a discharge hearing the State has the right to have the person evaluated by experts chosen by the State. Incorporates into the discharge Section provisions relating to additional discharge hearings. Amends the Unified Code of Corrections. Provides that in making its determination of parole, the Prisoner Review Board shall consider the person's eligibility for commitment under the Sexually Violent Persons Commitment Act. Provides that if the Board paroles a person who is eligible for commitment as a sexually violent person, the effective date of the Board's order shall be stayed for 90 days for the purpose of evaluation and proceedings under the Sexually Violent Persons Commitment Act.


LRB097 18170 RLC 65641 b

 

 

A BILL FOR

 

HB5330LRB097 18170 RLC 65641 b

1    AN ACT concerning sexually violent persons.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Sexually Violent Persons Commitment Act is
5amended by changing Sections 55, 60, and 65 and adding Section
621 as follows:
 
7    (725 ILCS 207/21 new)
8    Sec. 21. Service of petitions. If a person alleged to be a
9sexually violent person is in the custody of or is being
10supervised by the Department of Corrections or Department of
11Juvenile Justice, a petition filed under this Act shall be
12served on the person by personnel of the Department of
13Corrections or Department of Juvenile Justice or their
14designee.
 
15    (725 ILCS 207/55)
16    Sec. 55. Periodic reexamination; report.
17    (a) If a person has been committed under Section 40 of this
18Act and has not been discharged under Section 65 of this Act,
19the Department shall submit a written report to the court on
20his or her mental condition within 6 months after an initial
21commitment under Section 40 and then at least once every 12
22months after an initial commitment under Section 40 thereafter

 

 

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1for the purpose of determining whether: (1) the person has made
2sufficient progress in treatment to be conditionally released
3and (2) whether the person's condition has so changed since the
4most recent periodic reexamination (or initial commitment, if
5there has not yet been a periodic reexamination) that he or she
6is no longer a sexually violent person or discharged. At the
7time of a reexamination under this Section, the person who has
8been committed may retain or, if he or she is indigent and so
9requests, the court may appoint a qualified expert or a
10professional person to examine him or her.
11    (b) Any examiner conducting an examination under this
12Section shall prepare a written report of the examination no
13later than 30 days after the date of the examination. The
14examiner shall place a copy of the report in the person's
15health care records and shall provide a copy of the report to
16the court that committed the person under Section 40. The
17examination shall be conducted in conformance with the
18standards developed under the Sex Offender Management Board Act
19and by an evaluator approved by the Board.
20    (c) Notwithstanding subsection (a) of this Section, the
21court that committed a person under Section 40 may order a
22reexamination of the person at any time during the period in
23which the person is subject to the commitment order. Any
24examiner conducting an examination under this Section shall
25prepare a written report of the examination no later than 30
26days after the date of the examination.

 

 

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1    (d) Petitions for discharge after reexamination must
2follow the procedure outlined in Section 65 of this Act.
3(Source: P.A. 93-616, eff. 1-1-04; 93-885, eff. 8-6-04.)
 
4    (725 ILCS 207/60)
5    Sec. 60. Petition for conditional release.
6    (a) Any person who is committed for institutional care in a
7secure facility or other facility under Section 40 of this Act
8may petition the committing court to modify its order by
9authorizing conditional release if at least 12 6 months have
10elapsed since the initial commitment order was entered, an
11order continuing commitment was entered pursuant to Section 65,
12the most recent release petition was denied or the most recent
13order for conditional release was revoked. The director of the
14facility at which the person is placed may file a petition
15under this Section on the person's behalf at any time. If the
16evaluator on behalf of the Department recommends that the
17committed person is appropriate for conditional release, then
18the director or designee shall, within 30 days of receipt of
19the evaluator's report, file with the committing court notice
20of his or her intention whether or not to petition for
21conditional release on the committed person's behalf.
22    (b) If the person files a timely petition without counsel,
23the court shall serve a copy of the petition on the Attorney
24General or State's Attorney, whichever is applicable and,
25subject to paragraph (c)(1) of Section 25 of this Act, appoint

 

 

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1counsel. If the person petitions through counsel, his or her
2attorney shall serve the Attorney General or State's Attorney,
3whichever is applicable.
4    (c) Within 20 days after receipt of the petition, upon the
5request of the committed person or on the court's own motion,
6the court may appoint an examiner having the specialized
7knowledge determined by the court to be appropriate, who shall
8examine the mental condition of the person and furnish a
9written report of the examination to the court within 30 days
10after appointment. The examiners shall have reasonable access
11to the person for purposes of examination and to the person's
12past and present treatment records and patient health care
13records. If any such examiner believes that the person is
14appropriate for conditional release, the examiner shall report
15on the type of treatment and services that the person may need
16while in the community on conditional release. The State has
17the right to have the person evaluated by experts chosen by the
18State. Any examination or evaluation conducted under this
19Section shall be in conformance with the standards developed
20under the Sex Offender Management Board Act and conducted by an
21evaluator approved by the Board. The court shall set a probable
22cause hearing as soon as practical after the examiners' reports
23are filed. The probable cause hearing shall consist of a review
24of the examining evaluators' reports and arguments on behalf of
25the parties. If the court finds probable cause to believe the
26person has made sufficient progress in treatment to the point

 

 

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1where he or she is no longer substantially probable to engage
2in acts of sexual violence if on conditional release If the
3court determines at the probable cause hearing that cause
4exists to believe that it is not substantially probable that
5the person will engage in acts of sexual violence if on release
6or conditional release, the court shall set a hearing on the
7issue.
8    (d) The court, without a jury, shall hear the petition as
9soon as practical after the reports of all examiners are filed
10with the court. The court shall grant the petition unless the
11State proves by clear and convincing evidence that the person
12has not made sufficient progress in treatment to the point
13where he or she is no longer substantially probable to engage
14in acts of sexual violence if on conditional release to be
15conditionally released. In making a decision under this
16subsection, the court must consider the nature and
17circumstances of the behavior that was the basis of the
18allegation in the petition under paragraph (b)(1) of Section 15
19of this Act, the person's mental history and present mental
20condition, and what arrangements are available to ensure that
21the person has access to and will participate in necessary
22treatment.
23    (e) Before the court may enter an order directing
24conditional release to a less restrictive alternative it must
25find the following: (1) the person will be treated by a
26Department approved treatment provider, (2) the treatment

 

 

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1provider has presented a specific course of treatment and has
2agreed to assume responsibility for the treatment and will
3report progress to the Department on a regular basis, and will
4report violations immediately to the Department, consistent
5with treatment and supervision needs of the respondent, (3)
6housing exists that is sufficiently secure to protect the
7community, and the person or agency providing housing to the
8conditionally released person has agreed in writing to accept
9the person, to provide the level of security required by the
10court, and immediately to report to the Department if the
11person leaves the housing to which he or she has been assigned
12without authorization, (4) the person is willing to or has
13agreed to comply with the treatment provider, the Department,
14and the court, and (5) the person has agreed or is willing to
15agree to comply with the behavioral monitoring requirements
16imposed by the court and the Department.
17    (f) If the court finds that the person is appropriate for
18conditional release, the court shall notify the Department. The
19Department shall prepare a plan that identifies the treatment
20and services, if any, that the person will receive in the
21community. The plan shall address the person's need, if any,
22for supervision, counseling, medication, community support
23services, residential services, vocational services, and
24alcohol or other drug abuse treatment. The Department may
25contract with a county health department, with another public
26agency or with a private agency to provide the treatment and

 

 

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1services identified in the plan. The plan shall specify who
2will be responsible for providing the treatment and services
3identified in the plan. The plan shall be presented to the
4court for its approval within 60 days after the court finding
5that the person is appropriate for conditional release, unless
6the Department and the person to be released request additional
7time to develop the plan.
8    (g) The provisions of paragraphs (b)(4), (b)(5), and (b)(6)
9of Section 40 of this Act apply to an order for conditional
10release issued under this Section.
11(Source: P.A. 96-1128, eff. 1-1-11.)
 
12    (725 ILCS 207/65)
13    Sec. 65. Petition for discharge; procedure.
14    (a)(1) If the Secretary determines at any time that a
15person committed under this Act is no longer a sexually violent
16person, the Secretary shall authorize the person to petition
17the committing court for discharge. If the evaluator on behalf
18of the Department recommends that the committed person is no
19longer a sexually violent person, then the Secretary or
20designee shall, within 30 days of receipt of the evaluator's
21report, file with the committing court notice of his or her
22determination whether or not to authorize the committed person
23to petition the committing court for discharge. The person
24shall file the petition with the court and serve a copy upon
25the Attorney General or the State's Attorney's office that

 

 

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1filed the petition under subsection (a) of Section 15 of this
2Act, whichever is applicable. The court, upon receipt of the
3petition for discharge, shall order a hearing to be held as
4soon as practical after the date of receipt of the petition.
5    (2) At a hearing under this subsection, the Attorney
6General or State's Attorney, whichever filed the original
7petition, shall represent the State. The State has the right to
8have the person evaluated by experts chosen by the State and
9shall have the right to have the petitioner examined by an
10expert or professional person of his or her choice. The
11examination shall be conducted in conformance with the
12standards developed under the Sex Offender Management Board Act
13and by an evaluator approved by the Board. The committed person
14or the State may elect to have the hearing before a jury. The
15State has the burden of proving by clear and convincing
16evidence that the petitioner is still a sexually violent
17person.
18    (3) If the court or jury is satisfied that the State has
19not met its burden of proof under paragraph (a)(2) of this
20Section, the petitioner shall be discharged from the custody or
21supervision of the Department. If the court is satisfied that
22the State has met its burden of proof under paragraph (a)(2),
23the court may proceed under Section 40 of this Act to determine
24whether to modify the petitioner's existing commitment order.
25    (b)(1) A person may petition the committing court for
26discharge from custody or supervision without the Secretary's

 

 

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1approval. At the time of an examination under subsection (a) of
2Section 55 of this Act, the Secretary shall provide the
3committed person with a written notice of the person's right to
4petition the court for discharge over the Secretary's
5objection. The notice shall contain a waiver of rights. The
6Secretary shall forward the notice and waiver form to the court
7with the report of the Department's examination under Section
855 of this Act. If the person does not affirmatively waive the
9right to petition, the court shall set a probable cause hearing
10to determine whether facts exist to believe that since the most
11recent periodic reexamination (or initial commitment, if there
12has not yet been a periodic reexamination), the condition of
13the committed person has so changed that he or she is no longer
14a sexually violent person. However, if a person has previously
15filed a petition for discharge without the Secretary's approval
16and the court determined, either upon review of the petition or
17following a hearing, that the person's petition was frivolous
18or that the person was still a sexually violent person, then
19the court shall deny any subsequent petition under this Section
20without a hearing unless the petition contains facts upon which
21a court could reasonably find that the condition of the person
22had so changed that a hearing was warranted that warrant a
23hearing on whether the person is still a sexually violent
24person. If a person does not file a petition for discharge, yet
25fails to waive the right to petition under this Section, then
26the probable cause hearing consists only of a review of the

 

 

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1reexamination reports and arguments on behalf of the parties.
2The committed person has a right to have an attorney represent
3him or her at the probable cause hearing, but the person is not
4entitled to be present at the probable cause hearing. The
5probable cause hearing under this Section must be held as soon
6as practical after the filing of the reexamination report under
7Section 55 of this Act.
8    (2) If the court determines at the probable cause hearing
9under paragraph (b)(1) of this Section that probable cause
10exists to believe that since the most recent periodic
11reexamination (or initial commitment, if there has not yet been
12a periodic reexamination), the condition of the committed
13person has so changed that he or she is no longer a sexually
14violent person, then the court shall set a hearing on the
15issue. At a hearing under this Section, the committed person is
16entitled to be present and to the benefit of the protections
17afforded to the person under Section 25 of this Act. The
18committed person or the State may elect to have a hearing under
19this Section before a jury. A verdict of a jury under this
20Section is not valid unless it is unanimous. The Attorney
21General or State's Attorney, whichever filed the original
22petition, shall represent the State at a hearing under this
23Section. The State has the right to have the committed person
24evaluated by experts chosen by the State. The examination shall
25be conducted in conformance with the standards developed under
26the Sex Offender Management Board Act and by an evaluator

 

 

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1approved by the Board. At the hearing, the State has the burden
2of proving by clear and convincing evidence that the committed
3person is still a sexually violent person.
4    (3) If the court or jury is satisfied that the State has
5not met its burden of proof under paragraph (b)(2) of this
6Section, the person shall be discharged from the custody or
7supervision of the Department. If the court or jury is
8satisfied that the State has met its burden of proof under
9paragraph (b)(2) of this Section, the court may proceed under
10Section 40 of this Act to determine whether to modify the
11person's existing commitment order.
12    (c) This Section applies to petitions pending on the
13effective date of this amendatory Act of the 97th General
14Assembly and to petitions filed on or after that date. This
15provision is severable from the other provisions of this
16Section under Section 1.31 of the Statute on Statutes.
17(Source: P.A. 96-1128, eff. 1-1-11.)
 
18    (725 ILCS 207/70 rep.)
19    Section 10. The Sexually Violent Persons Commitment Act is
20amended by repealing Section 70.
 
21    Section 15. The Unified Code of Corrections is amended by
22changing Sections 3-3-4 and 3-3-5 as follows:
 
23    (730 ILCS 5/3-3-4)  (from Ch. 38, par. 1003-3-4)

 

 

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1    Sec. 3-3-4. Preparation for Parole Hearing.
2    (a) The Prisoner Review Board shall consider the parole of
3each eligible person committed to the Adult Division at least
430 days prior to the date he shall first become eligible for
5parole, and shall consider the parole of each person committed
6to the Department of Juvenile Justice as a delinquent at least
730 days prior to the expiration of the first year of
8confinement.
9    (b) A person eligible for parole shall, no less than 15
10days in advance of his parole interview, prepare a parole plan
11in accordance with the rules of the Prisoner Review Board. The
12person shall be assisted in preparing his parole plan by
13personnel of the Department of Corrections, or the Department
14of Juvenile Justice in the case of a person committed to that
15Department, and may, for this purpose, be released on furlough
16under Article 11 or on authorized absence under Section 3-9-4.
17The appropriate Department shall also provide assistance in
18obtaining information and records helpful to the individual for
19his parole hearing. If the person eligible for parole has a
20petition or any written submissions prepared on his or her
21behalf by an attorney or other representative, the attorney or
22representative for the person eligible for parole must serve by
23certified mail the State's Attorney of the county where he or
24she was prosecuted with the petition or any written submissions
2515 days after his or her parole interview. The State's Attorney
26shall provide the attorney for the person eligible for parole

 

 

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1with a copy of his or her letter in opposition to parole via
2certified mail within 5 business days of the en banc hearing.
3    (c) Any member of the Board shall have access at all
4reasonable times to any committed person and to his master
5record file within the Department, and the Department shall
6furnish such a report to the Board concerning the conduct and
7character of any such person prior to his or her parole
8interview.
9    (d) In making its determination of parole, the Board shall
10consider:
11        (1) material transmitted to the Department of Juvenile
12    Justice by the clerk of the committing court under Section
13    5-4-1 or Section 5-10 of the Juvenile Court Act or Section
14    5-750 of the Juvenile Court Act of 1987;
15        (2) the report under Section 3-8-2 or 3-10-2;
16        (3) a report by the Department and any report by the
17    chief administrative officer of the institution or
18    facility;
19        (4) a parole progress report;
20        (5) a medical and psychological report, if requested by
21    the Board;
22        (6) material in writing, or on film, video tape or
23    other electronic means in the form of a recording submitted
24    by the person whose parole is being considered; and
25        (7) material in writing, or on film, video tape or
26    other electronic means in the form of a recording or

 

 

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1    testimony submitted by the State's Attorney and the victim
2    or a concerned citizen pursuant to the Rights of Crime
3    Victims and Witnesses Act; and .
4        (8) the person's eligibility for commitment under the
5    Sexually Violent Persons Commitment Act.
6    (e) The prosecuting State's Attorney's office shall
7receive from the Board reasonable written notice not less than
830 days prior to the parole interview and may submit relevant
9information by oral argument or testimony of victims and
10concerned citizens, or both, in writing, or on film, video tape
11or other electronic means or in the form of a recording to the
12Board for its consideration. Upon written request of the
13State's Attorney's office, the Prisoner Review Board shall hear
14protests to parole, except in counties of 1,500,000 or more
15inhabitants where there shall be standing objections to all
16such petitions. If a State's Attorney who represents a county
17of less than 1,500,000 inhabitants requests a protest hearing,
18the inmate's counsel or other representative shall also receive
19notice of such request. This hearing shall take place the month
20following the inmate's parole interview. If the inmate's parole
21interview is rescheduled then the Prisoner Review Board shall
22promptly notify the State's Attorney of the new date. The
23person eligible for parole shall be heard at the next scheduled
24en banc hearing date. If the case is to be continued, the
25State's Attorney's office and the attorney or representative
26for the person eligible for parole will be notified of any

 

 

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1continuance within 5 business days. The State's Attorney may
2waive the written notice.
3    (f) The victim of the violent crime for which the prisoner
4has been sentenced shall receive notice of a parole hearing as
5provided in paragraph (4) of subsection (d) of Section 4.5 of
6the Rights of Crime Victims and Witnesses Act.
7    (g) Any recording considered under the provisions of
8subsection (d)(6), (d)(7) or (e) of this Section shall be in
9the form designated by the Board. Such recording shall be both
10visual and aural. Every voice on the recording and person
11present shall be identified and the recording shall contain
12either a visual or aural statement of the person submitting
13such recording, the date of the recording and the name of the
14person whose parole eligibility is being considered. Such
15recordings shall be retained by the Board and shall be deemed
16to be submitted at any subsequent parole hearing if the victim
17or State's Attorney submits in writing a declaration clearly
18identifying such recording as representing the present
19position of the victim or State's Attorney regarding the issues
20to be considered at the parole hearing.
21    (h) The Board shall not release any material to the inmate,
22the inmate's attorney, any third party, or any other person
23containing any information from the victim or from a person
24related to the victim by blood, adoption, or marriage who has
25written objections, testified at any hearing, or submitted
26audio or visual objections to the inmate's parole, unless

 

 

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1provided with a waiver from that objecting party.
2(Source: P.A. 96-875, eff. 1-22-10; 97-523, eff. 1-1-12.)
 
3    (730 ILCS 5/3-3-5)  (from Ch. 38, par. 1003-3-5)
4    Sec. 3-3-5. Hearing and Determination.
5    (a) The Prisoner Review Board shall meet as often as need
6requires to consider the cases of persons eligible for parole.
7Except as otherwise provided in paragraph (2) of subsection (a)
8of Section 3-3-2 of this Act, the Prisoner Review Board may
9meet and order its actions in panels of 3 or more members. The
10action of a majority of the panel shall be the action of the
11Board. In consideration of persons committed to the Department
12of Juvenile Justice, the panel shall have at least a majority
13of members experienced in juvenile matters.
14    (b) If the person under consideration for parole is in the
15custody of the Department, at least one member of the Board
16shall interview him, and a report of that interview shall be
17available for the Board's consideration. However, in the
18discretion of the Board, the interview need not be conducted if
19a psychiatric examination determines that the person could not
20meaningfully contribute to the Board's consideration. The
21Board may in its discretion parole a person who is then outside
22the jurisdiction on his record without an interview. The Board
23need not hold a hearing or interview a person who is paroled
24under paragraphs (d) or (e) of this Section or released on
25Mandatory release under Section 3-3-10.

 

 

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1    (c) The Board shall not parole a person eligible for parole
2if it determines that:
3        (1) there is a substantial risk that he will not
4    conform to reasonable conditions of parole; or
5        (2) his release at that time would deprecate the
6    seriousness of his offense or promote disrespect for the
7    law; or
8        (3) his release would have a substantially adverse
9    effect on institutional discipline.
10    (d) A person committed under the Juvenile Court Act or the
11Juvenile Court Act of 1987 who has not been sooner released
12shall be paroled on or before his 20th birthday to begin
13serving a period of parole under Section 3-3-8.
14    (e) A person who has served the maximum term of
15imprisonment imposed at the time of sentencing less time credit
16for good behavior shall be released on parole to serve a period
17of parole under Section 5-8-1.
18    (f) The Board shall render its decision within a reasonable
19time after hearing and shall state the basis therefor both in
20the records of the Board and in written notice to the person on
21whose application it has acted. In its decision, the Board
22shall set the person's time for parole, or if it denies parole
23it shall provide for a rehearing not less frequently than once
24every year, except that the Board may, after denying parole,
25schedule a rehearing no later than 5 years from the date of the
26parole denial, if the Board finds that it is not reasonable to

 

 

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1expect that parole would be granted at a hearing prior to the
2scheduled rehearing date. If the Board shall parole a person,
3and, if he is not released within 90 days from the effective
4date of the order granting parole, the matter shall be returned
5to the Board for review.
6    (f-1) If the Board paroles a person who is eligible for
7commitment as a sexually violent person, the effective date of
8the Board's order shall be stayed for 90 days for the purpose
9of evaluation and proceedings under the Sexually Violent
10Persons Commitment Act.
11    (g) The Board shall maintain a registry of decisions in
12which parole has been granted, which shall include the name and
13case number of the prisoner, the highest charge for which the
14prisoner was sentenced, the length of sentence imposed, the
15date of the sentence, the date of the parole, and the basis for
16the decision of the Board to grant parole and the vote of the
17Board on any such decisions. The registry shall be made
18available for public inspection and copying during business
19hours and shall be a public record pursuant to the provisions
20of the Freedom of Information Act.
21    (h) The Board shall promulgate rules regarding the exercise
22of its discretion under this Section.
23(Source: P.A. 96-875, eff. 1-22-10; 97-522, eff. 1-1-12.)