Public Act 097-1075
Public Act 1075 97TH GENERAL ASSEMBLY
|
Public Act 097-1075
| | HB5330 Enrolled | LRB097 18170 RLC 65641 b |
|
| AN ACT concerning sexually violent persons.
| Be it enacted by the People of the State of Illinois,
| represented in the General Assembly:
| Section 5. The Sexually Violent Persons Commitment Act is | amended by changing Sections 55, 60, and 65 and adding Section | 21 as follows:
| (725 ILCS 207/21 new) | Sec. 21. Service of petitions. If a person alleged to be a | sexually violent person is in the custody of or is being | supervised on parole or mandatory supervised release by the | Department of Corrections or Department of Juvenile Justice, a | petition filed under this Act may be served on the person by | personnel of the Department of Corrections or Department of | Juvenile Justice. Service may be proved by affidavit of the | person making service. The affidavit shall be returned to the | Attorney General or State's Attorney of the county where the | petition is pending for filing with the court.
Service provided | for in this Section is in addition to other manners of service | provided for in Section 20 of this Act and the Code of Civil | Procedure.
| (725 ILCS 207/55)
| Sec. 55. Periodic reexamination; report.
|
| (a) If a person has been committed under Section 40 of this | Act
and has not been discharged under Section 65 of this Act, | the
Department shall submit a written report to the court on | his or her mental
condition within 6 months after an initial | commitment under
Section 40 and then at least once every 12 | months after an initial commitment under Section 40 thereafter | for
the purpose of determining whether: (1) 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 or discharged. At the | time of
a reexamination under this Section, the person who has | been
committed may retain or, if he or she is indigent and so | requests,
the court may appoint a qualified expert or a | professional person
to examine him or her.
| (b) Any examiner conducting an examination under this | Section
shall prepare a written report of the examination no | later than 30
days after the date of the examination. The | examiner shall place
a copy of the report in the person's | health care records and shall
provide a copy of the report to | the court that committed the
person under Section 40.
The | examination shall be conducted in conformance with the | standards
developed under the Sex Offender Management Board Act | and by an evaluator
approved by the Board.
| (c) Notwithstanding subsection (a) of this Section, the |
| court
that committed a person under Section 40 may order a | reexamination
of the person at any time during the period in | which the person is
subject to the commitment order.
Any | examiner conducting an examination under this Section shall | prepare a written report of the examination no later than 30 | days after the date of the examination.
| (d) Petitions for discharge after reexamination must | follow the
procedure
outlined in
Section 65 of this Act.
| (Source: P.A. 93-616, eff. 1-1-04; 93-885, eff. 8-6-04.)
| (725 ILCS 207/60)
| Sec. 60. Petition for conditional release.
| (a) Any person who is committed for institutional care in a
| secure facility or other facility under Section 40 of this Act | may
petition the committing court to modify its order by | authorizing
conditional release if at least 12 6 months have | elapsed since the
initial commitment order was entered, an | order continuing commitment was entered pursuant to Section 65, | the most recent release
petition was denied or the most recent | order for conditional
release was revoked. The director of the | facility at which the
person is placed may file a petition | under this Section on the
person's behalf at any time.
If the | evaluator on behalf of the Department recommends that the | committed person is appropriate for conditional release, then | the director or designee shall, within 30 days of receipt of | the evaluator's report, file with the committing court notice |
| of his or her intention whether or not to petition for | conditional release on the committed person's behalf.
| (b) If the person files a timely petition without counsel, | the
court shall serve a copy of the petition on the Attorney | General
or State's Attorney, whichever is applicable and, | subject to
paragraph (c)(1) of Section 25 of this Act, appoint | counsel. If the person
petitions through counsel, his or her | attorney shall serve the
Attorney General or State's Attorney, | whichever is applicable.
| (c) Within 20 days after receipt of the petition, upon the | request of the committed person or on the court's own motion, | the court may
appoint an examiner having the specialized
| knowledge determined by the court to be appropriate, who shall
| examine the mental condition of the person and furnish a | written report of
the
examination
to the court within 30 days | after appointment. The examiners
shall have reasonable access | to the person for purposes of
examination and to the person's | past and present treatment records
and patient health care | records. If any such examiner believes
that the person is | appropriate for conditional release, the
examiner shall report | on the type of treatment and services that
the person may need | while in the community on conditional release. The State
has | the right to have the person evaluated by experts chosen by the | State.
Any examination or evaluation conducted under this | Section shall be in
conformance with the standards developed | under the Sex Offender
Management Board Act and conducted by an |
| evaluator approved by the Board.
The
court shall set a probable | cause hearing as soon as practical after the
examiners' reports | are filed. The probable cause hearing shall consist of a review | of the examining evaluators' reports and arguments on behalf of | the parties. If the court finds probable cause to believe the | person has made sufficient progress in treatment to the point | where he or she is no longer substantially probable to engage | in acts of sexual violence if on conditional release If the | court determines at the probable cause
hearing that cause | exists to believe that it is not substantially probable that
| the person will engage in acts of sexual violence if on release | or conditional
release, the court shall set a hearing on the | issue.
| (d) The court, without a jury, shall hear the petition as | soon as practical after the reports of all examiners are filed
| with the court. The
court shall grant the petition unless the | State proves by clear
and convincing evidence that the person | has not made sufficient progress in treatment to the point | where he or she is no longer substantially probable to engage | in acts of sexual violence if on conditional release to
be | conditionally released. In making a decision under
this | subsection, the court must consider the nature and
| circumstances of the behavior that was the basis of the | allegation
in the petition under paragraph (b)(1) of Section 15 | of this Act, the person's
mental history and present mental | condition, and what
arrangements are available to ensure that |
| the person has access to
and will participate in necessary | treatment.
| (e) Before the court may enter an order directing | conditional release to
a less restrictive alternative it must | find the following: (1) the person will
be treated by a | Department approved treatment provider, (2) the treatment
| provider has presented a specific course of treatment and has | agreed to assume
responsibility for the treatment and will | report progress to the Department on
a regular basis, and will | report violations immediately to the Department,
consistent | with treatment and supervision needs of the respondent, (3) | housing
exists that is sufficiently secure to protect the | community, and the person or
agency providing housing to the | conditionally released person has agreed in
writing to accept | the person, to provide the level of security required by the
| court, and
immediately to report to the Department if the | person leaves the housing to
which he or she has been assigned | without authorization, (4) the person is
willing to or has | agreed to comply with the treatment provider, the Department,
| and
the court, and (5) the person has agreed or is willing to | agree to comply
with the behavioral monitoring requirements | imposed by the court and the
Department.
| (f) If the court finds that the person is appropriate for
| conditional release, the court shall notify the Department. The
| Department shall prepare a plan that identifies the treatment | and
services, if any, that the person will receive in the |
| community.
The plan shall address the person's need, if any, | for supervision,
counseling, medication, community support | services, residential
services, vocational services, and | alcohol or other drug abuse
treatment. The Department may | contract with a county health
department, with another public | agency or with a private agency to
provide the treatment and | services identified in the plan. The
plan shall specify who | will be responsible for providing the
treatment and services | identified in the plan. The plan shall be
presented to the | court for its approval within 60 days after the
court finding | that the person is appropriate for conditional
release, unless | the Department and the person to be released
request additional | time to develop the plan.
| (g) The provisions of paragraphs (b)(4), (b)(5), and (b)(6) | of Section 40 of this Act
apply to an
order for conditional | release issued under this Section.
| (Source: P.A. 96-1128, eff. 1-1-11.)
| (725 ILCS 207/65)
| Sec. 65. Petition for discharge; procedure.
| (a)(1) If the Secretary determines at any time that a | person
committed under this Act is no longer a sexually violent | person,
the Secretary shall authorize the person to petition | the
committing court for discharge. If the evaluator on behalf | of the Department recommends that the committed person is no | longer a sexually violent person, then the Secretary or |
| designee shall, within 30 days of receipt of the evaluator's | report, file with the committing court notice of his or her | determination whether or not to authorize the committed person | to petition the committing court for discharge. The person | shall file the
petition with the court and serve a copy upon | the Attorney General
or the State's Attorney's office that | filed the petition under
subsection (a) of Section 15 of this | Act, whichever is applicable. The court,
upon receipt of the | petition for discharge, shall order a hearing
to be held as | soon as practical after the date of receipt of the
petition.
| (2) At a hearing under this subsection, the Attorney | General
or State's Attorney, whichever filed the original | petition, shall
represent the State. The State has the right to | have the person evaluated by experts chosen by the State and | shall have the right to have the
petitioner examined by an | expert or professional person of his or
her choice. The | examination shall be conducted in conformance with the
| standards developed under the Sex Offender Management Board Act | and by an
evaluator approved by the Board. The
committed person | or the State may elect to have the hearing
before a jury.
The | State has the burden of proving by clear and convincing
| evidence that the petitioner is still a sexually violent | person.
| (3) If the court or jury is satisfied that the State has | not met its
burden of proof under paragraph (a)(2) of this | Section, the
petitioner shall be discharged from the custody or |
| supervision of
the Department. If the court is satisfied that | the State has met
its burden of proof under paragraph (a)(2), | the court may proceed
under Section 40 of this Act to determine | whether to modify the
petitioner's existing commitment order.
| (b)(1) A person may petition the committing court for | discharge
from custody or supervision without the Secretary's | approval. At
the time of an examination under subsection (a) of | Section 55 of this Act, the
Secretary shall provide the | committed person with a written notice
of the person's right to | petition the court for discharge over the
Secretary's | objection. The notice shall contain a waiver of
rights. The | Secretary shall forward the notice and waiver form to
the court | with the report of the Department's examination under
Section | 55 of this Act. If the person does not affirmatively
waive the | right to petition, the court shall set a probable cause
hearing | to determine whether facts exist to believe that since the most | recent periodic reexamination (or initial commitment, if there | has not yet been a periodic reexamination), the condition of | the committed person has so changed that he or she is no longer | a sexually violent person. However, if a person has previously | filed a petition for discharge without the Secretary's approval | and the court determined, either upon review of the petition or | following a hearing, that the person's petition was frivolous | or that the person was still a sexually violent person, then | the court shall deny any subsequent petition under this Section | without a hearing unless the petition contains facts upon which |
| a court could reasonably find that the condition of the person | had so changed that a hearing was warranted that warrant a | hearing on
whether the person is still a sexually violent | person.
If 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.
| The
committed person has a right to have an attorney represent | him or
her at the probable cause hearing, but the person is not | entitled
to be present at the probable cause hearing.
The
| probable cause hearing under this Section must be held as soon | as practical after the
filing of the
reexamination report under | Section 55 of this Act.
| (2) If the court determines at the probable cause hearing
| under paragraph (b)(1) of this Section that probable cause | exists
to believe that since the most recent periodic | reexamination (or initial commitment, if there has not yet been | a periodic reexamination), the condition of the committed | person has so changed that he or she is no longer a sexually
| violent person, then the court shall set a hearing on the | issue.
At a hearing under this Section, the committed person is | entitled
to be present and to the benefit of the protections | afforded to
the person under Section 25 of this Act.
The
| committed person or the State may elect to have a hearing under | this Section
before a
jury. A verdict of a jury under this | Section is not valid unless it is
unanimous.
The Attorney |
| General or
State's Attorney, whichever filed the original | petition, shall
represent the State at a hearing under this | Section. The State has the right
to have the committed person | evaluated by experts chosen by the
State.
The examination shall | be conducted in conformance with the standards
developed under | the Sex Offender Management Board Act and by an evaluator
| approved by the Board. At the hearing, the State has the burden | of proving by
clear and convincing evidence that the committed | person is still a
sexually violent person.
| (3) If the court or jury is satisfied that the State has | not met its
burden of proof under paragraph (b)(2) of this | Section, the
person shall be discharged from the custody or | supervision of the
Department. If the court or jury is | satisfied that the State has met its
burden of proof under | paragraph (b)(2) of this Section, the court
may proceed under | Section 40 of this Act to determine whether to
modify the | person's existing commitment order.
| (c) This Section applies to petitions pending on the | effective date of this amendatory Act of the 97th General | Assembly and to petitions filed on or after that date. This | provision is severable from the other provisions of this | Section under Section 1.31 of the Statute on Statutes. | (Source: P.A. 96-1128, eff. 1-1-11.)
| (725 ILCS 207/70 rep.)
| Section 10. The Sexually Violent Persons Commitment Act is |
| amended by repealing Section 70.
| Section 15. The Unified Code of Corrections is amended by | changing Sections 3-3-4 and 3-3-5 as follows:
| (730 ILCS 5/3-3-4) (from Ch. 38, par. 1003-3-4)
| Sec. 3-3-4. Preparation for Parole Hearing.
| (a) The Prisoner Review Board shall consider the parole
of | each eligible person committed to the Adult Division at
least | 30 days prior to the date he shall first become
eligible for | parole, and shall consider the parole of each
person committed | to the Department of Juvenile Justice as a delinquent
at least | 30 days prior to the expiration of the first year
of | confinement.
| (b) A person eligible for parole shall, no less than 15 | days in advance of
his parole interview, prepare a parole plan | in accordance
with the rules of the Prisoner Review Board. The | person
shall be assisted in preparing his parole plan by | personnel
of the Department of Corrections, or the Department | of Juvenile Justice in the case of a person committed to that | Department, and may, for this purpose, be released
on furlough | under Article 11 or on authorized absence under
Section 3-9-4. | The appropriate Department shall also provide
assistance in | obtaining information and records helpful to
the individual for | his parole hearing. If the person eligible for parole has a | petition or any written submissions prepared on his or her |
| behalf by an attorney or other representative, the attorney or | representative for the person eligible for parole must serve by | certified mail the State's Attorney of the county where he or | she was prosecuted with the petition or any written submissions | 15 days after his or her parole interview. The State's Attorney | shall provide the attorney for the person eligible for parole | with a copy of his or her letter in opposition to parole via | certified mail within 5 business days of the en banc hearing.
| (c) Any member of the Board shall have access at all
| reasonable times to any committed person and to his master
| record file within the Department, and the Department shall
| furnish such a report to the Board
concerning the conduct and | character of any such person prior to his or her parole | interview.
| (d) In making its determination of parole, the Board
shall | consider:
| (1) material transmitted to the Department of Juvenile | Justice by the
clerk of the committing court under Section | 5-4-1 or Section
5-10 of the Juvenile Court Act or Section | 5-750 of the Juvenile
Court Act of 1987;
| (2) the report under Section 3-8-2 or 3-10-2;
| (3) a report by the Department and any report by the
| chief administrative officer of the institution or | facility;
| (4) a parole progress report;
| (5) a medical and psychological report, if requested
by |
| the Board;
| (6) material in writing, or on film, video tape or | other electronic
means in the form of a recording submitted | by the person whose parole
is being considered; and
| (7) material in writing, or on film, video tape or | other electronic
means in the form of a recording or | testimony submitted by the State's
Attorney and the victim | or a concerned citizen pursuant to the Rights of Crime | Victims and Witnesses Act; and .
| (8) the person's eligibility for commitment under the | Sexually Violent Persons Commitment Act. | (e) The prosecuting State's Attorney's office shall | receive from the Board reasonable
written notice not less than | 30 days prior to the parole interview and may
submit relevant | information by oral argument or testimony of victims and | concerned citizens, or both, in writing, or on film, video tape | or other
electronic means or in the form of a recording to the | Board for its
consideration. Upon written request of the | State's Attorney's office, the Prisoner Review Board shall hear | protests to parole, except in counties of 1,500,000 or more | inhabitants where there shall be standing objections to all | such petitions. If a State's Attorney who represents a county | of less than 1,500,000 inhabitants requests a protest hearing, | the inmate's counsel or other representative shall also receive | notice of such request.
This hearing shall take place the month | following the inmate's parole interview. If the inmate's parole |
| interview is rescheduled then the Prisoner Review Board shall | promptly notify the State's Attorney of the new date. The | person eligible for parole shall be heard at the next scheduled | en banc hearing date. If the case is to be continued, the | State's Attorney's office and the attorney or representative | for the person eligible for parole will be notified of any | continuance within 5 business days. The State's Attorney may | waive the written notice.
| (f) The victim of the violent crime for which the prisoner | has been
sentenced shall receive notice of a parole hearing as | provided in paragraph
(4) of subsection (d) of Section 4.5 of | the Rights of Crime Victims and Witnesses
Act.
| (g) Any recording considered under the provisions of | subsection (d)(6),
(d)(7) or (e) of this Section shall be in | the form designated by the Board.
Such recording shall be both | visual and aural. Every voice on the
recording and person | present shall be identified and the recording shall
contain | either a visual or aural statement of the person submitting | such
recording, the date of the recording and the name of the | person whose
parole eligibility is being considered. Such | recordings shall be retained by
the Board and shall be deemed | to be submitted at any subsequent parole hearing
if the victim | or State's Attorney submits in writing a declaration clearly
| identifying such recording as representing the present | position of the
victim or State's Attorney regarding the issues | to be considered at the parole
hearing.
|
| (h) The Board shall not release any material to the inmate, | the inmate's attorney, any third party, or any other person | containing any information from the victim or from a person | related to the victim by blood, adoption, or marriage who has | written objections, testified at any hearing, or submitted | audio or visual objections to the inmate's parole, unless | provided with a waiver from that objecting party. | (Source: P.A. 96-875, eff. 1-22-10; 97-523, eff. 1-1-12.)
| (730 ILCS 5/3-3-5) (from Ch. 38, par. 1003-3-5)
| Sec. 3-3-5. Hearing and Determination.
| (a) The Prisoner
Review Board shall meet as often as need | requires to consider
the cases of persons eligible for parole. | Except as otherwise
provided in paragraph (2) of subsection (a) | of Section 3-3-2
of this Act, the Prisoner Review Board may | meet and
order its actions in panels of 3 or more members. The | action
of a majority of the panel shall be the action of the | Board.
In consideration of persons committed to the Department | of Juvenile Justice,
the panel shall have at least a majority | of members experienced
in juvenile matters.
| (b) If the person under consideration for parole is in the
| custody of the Department, at least one member of the Board
| shall interview him, and a report of that interview shall be
| available for the Board's consideration. However, in the
| discretion of the Board, the interview need not be conducted
if | a psychiatric examination determines that the person could
not |
| meaningfully contribute to the Board's consideration. The
| Board may in its discretion parole a person who is then outside
| the jurisdiction on his record without an interview. The Board
| need not hold a hearing or interview a person who is paroled
| under paragraphs (d) or (e) of this Section or released on
| Mandatory release under Section 3-3-10.
| (c) The Board shall not parole a person eligible for
parole | if it determines that:
| (1) there is a substantial risk that he will not
| conform to reasonable conditions of parole; or
| (2) his release at that time would deprecate the
| seriousness of his offense or promote disrespect for the | law; or
| (3) his release would have a substantially adverse
| effect on institutional discipline.
| (d) A person committed under the Juvenile Court Act
or the | Juvenile Court Act of 1987
who has not been sooner released | shall be paroled on or before
his 20th birthday to begin | serving a period of parole under
Section 3-3-8.
| (e) A person who has served the maximum term of
| imprisonment imposed at the time of sentencing less time
credit | for good behavior shall be released on parole to
serve a period | of parole under Section 5-8-1.
| (f) The Board shall render its decision within a
reasonable | time after hearing and shall state the basis
therefor both in | the records of the Board and in written
notice to the person on |
| whose application it has acted.
In its decision, the Board | shall set the person's time
for parole, or if it denies parole | it shall provide for
a rehearing not less frequently than once | every
year, except that the Board may,
after denying parole,
| schedule a rehearing no later than 5 years from the date of the | parole
denial, if the Board finds that it is not reasonable to | expect that parole
would be granted at a hearing prior to the | scheduled rehearing date. If the
Board shall parole a person, | and, if he is not released within 90 days from
the effective | date of the order granting parole, the matter shall be
returned | to the Board for review.
| (f-1) 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. | (g) The Board shall maintain a registry of decisions in | which parole
has been granted, which shall include the name and | case number of the
prisoner, the highest charge for which the | prisoner was sentenced, the
length of sentence imposed, the | date of the sentence, the date of the
parole, and the basis for | the decision of the Board to grant parole and the
vote of the | Board on any such decisions. The registry shall be made | available
for public inspection and copying during business | hours and shall be a public
record pursuant to the provisions | of the Freedom of Information Act.
|
| (h) The Board shall promulgate rules regarding the exercise
| of its discretion under this Section.
| (Source: P.A. 96-875, eff. 1-22-10; 97-522, eff. 1-1-12.)
| Section 99. Effective date. This Act takes effect upon | becoming law.
|
Effective Date: 8/24/2012
|
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