100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB3882

 

Introduced , by Rep. Sonya M. Harper

 

SYNOPSIS AS INTRODUCED:
 
730 ILCS 5/5-4-1  from Ch. 38, par. 1005-4-1

    Amends the Unified Code of Corrections. Provides that notwithstanding any other provision of law to the contrary, in imposing a sentence for an offense that requires a mandatory minimum sentence of imprisonment, the court may sentence the offender to probation or conditional discharge or other non-imprisonment sentence it deems appropriate instead of to a sentence of imprisonment or to a lesser sentence of imprisonment than the minimum sentence of imprisonment provided for the offense if the court finds that the defendant does not pose a risk to public safety and the interest of justice requires the non-imposition of the mandatory sentence of imprisonment or a lesser sentence of imprisonment. Provides that the court must state on the record its reasons for not imposing the minimum sentence of imprisonment or a lesser sentence of imprisonment.


LRB100 11029 RLC 21844 b

 

 

A BILL FOR

 

HB3882LRB100 11029 RLC 21844 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 Unified Code of Corrections is amended by
5changing Section 5-4-1 as follows:
 
6    (730 ILCS 5/5-4-1)  (from Ch. 38, par. 1005-4-1)
7    Sec. 5-4-1. Sentencing Hearing.
8    (a) Except when the death penalty is sought under hearing
9procedures otherwise specified, after a determination of
10guilt, a hearing shall be held to impose the sentence. However,
11prior to the imposition of sentence on an individual being
12sentenced for an offense based upon a charge for a violation of
13Section 11-501 of the Illinois Vehicle Code or a similar
14provision of a local ordinance, the individual must undergo a
15professional evaluation to determine if an alcohol or other
16drug abuse problem exists and the extent of such a problem.
17Programs conducting these evaluations shall be licensed by the
18Department of Human Services. However, if the individual is not
19a resident of Illinois, the court may, in its discretion,
20accept an evaluation from a program in the state of such
21individual's residence. The court may in its sentencing order
22approve an eligible defendant for placement in a Department of
23Corrections impact incarceration program as provided in

 

 

HB3882- 2 -LRB100 11029 RLC 21844 b

1Section 5-8-1.1 or 5-8-1.3. The court may in its sentencing
2order recommend a defendant for placement in a Department of
3Corrections substance abuse treatment program as provided in
4paragraph (a) of subsection (1) of Section 3-2-2 conditioned
5upon the defendant being accepted in a program by the
6Department of Corrections. At the hearing the court shall:
7        (1) consider the evidence, if any, received upon the
8    trial;
9        (2) consider any presentence reports;
10        (3) consider the financial impact of incarceration
11    based on the financial impact statement filed with the
12    clerk of the court by the Department of Corrections;
13        (4) consider evidence and information offered by the
14    parties in aggravation and mitigation;
15        (4.5) consider substance abuse treatment, eligibility
16    screening, and an assessment, if any, of the defendant by
17    an agent designated by the State of Illinois to provide
18    assessment services for the Illinois courts;
19        (5) hear arguments as to sentencing alternatives;
20        (6) afford the defendant the opportunity to make a
21    statement in his own behalf;
22        (7) afford the victim of a violent crime or a violation
23    of Section 11-501 of the Illinois Vehicle Code, or a
24    similar provision of a local ordinance, or a qualified
25    individual affected by: (i) a violation of Section 405,
26    405.1, 405.2, or 407 of the Illinois Controlled Substances

 

 

HB3882- 3 -LRB100 11029 RLC 21844 b

1    Act or a violation of Section 55 or Section 65 of the
2    Methamphetamine Control and Community Protection Act, or
3    (ii) a Class 4 felony violation of Section 11-14, 11-14.3
4    except as described in subdivisions (a)(2)(A) and
5    (a)(2)(B), 11-15, 11-17, 11-18, 11-18.1, or 11-19 of the
6    Criminal Code of 1961 or the Criminal Code of 2012,
7    committed by the defendant the opportunity to make a
8    statement concerning the impact on the victim and to offer
9    evidence in aggravation or mitigation; provided that the
10    statement and evidence offered in aggravation or
11    mitigation must first be prepared in writing in conjunction
12    with the State's Attorney before it may be presented orally
13    at the hearing. Any sworn testimony offered by the victim
14    is subject to the defendant's right to cross-examine. All
15    statements and evidence offered under this paragraph (7)
16    shall become part of the record of the court. For the
17    purpose of this paragraph (7), "qualified individual"
18    means any person who (i) lived or worked within the
19    territorial jurisdiction where the offense took place when
20    the offense took place; and (ii) is familiar with various
21    public places within the territorial jurisdiction where
22    the offense took place when the offense took place. For the
23    purposes of this paragraph (7), "qualified individual"
24    includes any peace officer, or any member of any duly
25    organized State, county, or municipal peace unit assigned
26    to the territorial jurisdiction where the offense took

 

 

HB3882- 4 -LRB100 11029 RLC 21844 b

1    place when the offense took place;
2        (8) in cases of reckless homicide afford the victim's
3    spouse, guardians, parents or other immediate family
4    members an opportunity to make oral statements;
5        (9) in cases involving a felony sex offense as defined
6    under the Sex Offender Management Board Act, consider the
7    results of the sex offender evaluation conducted pursuant
8    to Section 5-3-2 of this Act; and
9        (10) make a finding of whether a motor vehicle was used
10    in the commission of the offense for which the defendant is
11    being sentenced.
12    (b) All sentences shall be imposed by the judge based upon
13his independent assessment of the elements specified above and
14any agreement as to sentence reached by the parties. The judge
15who presided at the trial or the judge who accepted the plea of
16guilty shall impose the sentence unless he is no longer sitting
17as a judge in that court. Where the judge does not impose
18sentence at the same time on all defendants who are convicted
19as a result of being involved in the same offense, the
20defendant or the State's Attorney may advise the sentencing
21court of the disposition of any other defendants who have been
22sentenced.
23    (b-1) In imposing a sentence of imprisonment or periodic
24imprisonment for a Class 3 or Class 4 felony for which a
25sentence of probation or conditional discharge is an available
26sentence, if the defendant has no prior sentence of probation

 

 

HB3882- 5 -LRB100 11029 RLC 21844 b

1or conditional discharge and no prior conviction for a violent
2crime, the defendant shall not be sentenced to imprisonment
3before review and consideration of a presentence report and
4determination and explanation of why the particular evidence,
5information, factor in aggravation, factual finding, or other
6reasons support a sentencing determination that one or more of
7the factors under subsection (a) of Section 5-6-1 of this Code
8apply and that probation or conditional discharge is not an
9appropriate sentence.
10    (c) In imposing a sentence for a violent crime or for an
11offense of operating or being in physical control of a vehicle
12while under the influence of alcohol, any other drug or any
13combination thereof, or a similar provision of a local
14ordinance, when such offense resulted in the personal injury to
15someone other than the defendant, the trial judge shall specify
16on the record the particular evidence, information, factors in
17mitigation and aggravation or other reasons that led to his
18sentencing determination. The full verbatim record of the
19sentencing hearing shall be filed with the clerk of the court
20and shall be a public record.
21    (c-1) In imposing a sentence for the offense of aggravated
22kidnapping for ransom, home invasion, armed robbery,
23aggravated vehicular hijacking, aggravated discharge of a
24firearm, or armed violence with a category I weapon or category
25II weapon, the trial judge shall make a finding as to whether
26the conduct leading to conviction for the offense resulted in

 

 

HB3882- 6 -LRB100 11029 RLC 21844 b

1great bodily harm to a victim, and shall enter that finding and
2the basis for that finding in the record.
3    (c-1.5) Notwithstanding any other provision of law to the
4contrary, in imposing a sentence for an offense that requires a
5mandatory minimum sentence of imprisonment, the court may
6sentence the offender to probation or conditional discharge or
7other non-imprisonment sentence it deems appropriate instead
8of to a sentence of imprisonment or to a lesser sentence of
9imprisonment than the minimum sentence of imprisonment
10provided for the offense if the court finds that the defendant
11does not pose a risk to public safety and the interest of
12justice requires the non-imposition of the mandatory sentence
13of imprisonment or a lesser sentence of imprisonment. The court
14must state on the record its reasons for not imposing the
15minimum sentence of imprisonment or a lesser sentence of
16imprisonment.
17    (c-2) If the defendant is sentenced to prison, other than
18when a sentence of natural life imprisonment or a sentence of
19death is imposed, at the time the sentence is imposed the judge
20shall state on the record in open court the approximate period
21of time the defendant will serve in custody according to the
22then current statutory rules and regulations for sentence
23credit found in Section 3-6-3 and other related provisions of
24this Code. This statement is intended solely to inform the
25public, has no legal effect on the defendant's actual release,
26and may not be relied on by the defendant on appeal.

 

 

HB3882- 7 -LRB100 11029 RLC 21844 b

1    The judge's statement, to be given after pronouncing the
2sentence, other than when the sentence is imposed for one of
3the offenses enumerated in paragraph (a)(3) of Section 3-6-3,
4shall include the following:
5    "The purpose of this statement is to inform the public of
6the actual period of time this defendant is likely to spend in
7prison as a result of this sentence. The actual period of
8prison time served is determined by the statutes of Illinois as
9applied to this sentence by the Illinois Department of
10Corrections and the Illinois Prisoner Review Board. In this
11case, assuming the defendant receives all of his or her
12sentence credit, the period of estimated actual custody is ...
13years and ... months, less up to 180 days additional sentence
14credit for good conduct. If the defendant, because of his or
15her own misconduct or failure to comply with the institutional
16regulations, does not receive those credits, the actual time
17served in prison will be longer. The defendant may also receive
18an additional one-half day sentence credit for each day of
19participation in vocational, industry, substance abuse, and
20educational programs as provided for by Illinois statute."
21    When the sentence is imposed for one of the offenses
22enumerated in paragraph (a)(3) of Section 3-6-3, other than
23when the sentence is imposed for one of the offenses enumerated
24in paragraph (a)(2) of Section 3-6-3 committed on or after June
2519, 1998, and other than when the sentence is imposed for
26reckless homicide as defined in subsection (e) of Section 9-3

 

 

HB3882- 8 -LRB100 11029 RLC 21844 b

1of the Criminal Code of 1961 or the Criminal Code of 2012 if
2the offense was committed on or after January 1, 1999, and
3other than when the sentence is imposed for aggravated arson if
4the offense was committed on or after July 27, 2001 (the
5effective date of Public Act 92-176), and other than when the
6sentence is imposed for aggravated driving under the influence
7of alcohol, other drug or drugs, or intoxicating compound or
8compounds, or any combination thereof as defined in
9subparagraph (C) of paragraph (1) of subsection (d) of Section
1011-501 of the Illinois Vehicle Code committed on or after
11January 1, 2011 (the effective date of Public Act 96-1230), the
12judge's statement, to be given after pronouncing the sentence,
13shall include the following:
14    "The purpose of this statement is to inform the public of
15the actual period of time this defendant is likely to spend in
16prison as a result of this sentence. The actual period of
17prison time served is determined by the statutes of Illinois as
18applied to this sentence by the Illinois Department of
19Corrections and the Illinois Prisoner Review Board. In this
20case, assuming the defendant receives all of his or her
21sentence credit, the period of estimated actual custody is ...
22years and ... months, less up to 90 days additional sentence
23credit for good conduct. If the defendant, because of his or
24her own misconduct or failure to comply with the institutional
25regulations, does not receive those credits, the actual time
26served in prison will be longer. The defendant may also receive

 

 

HB3882- 9 -LRB100 11029 RLC 21844 b

1an additional one-half day sentence credit for each day of
2participation in vocational, industry, substance abuse, and
3educational programs as provided for by Illinois statute."
4    When the sentence is imposed for one of the offenses
5enumerated in paragraph (a)(2) of Section 3-6-3, other than
6first degree murder, and the offense was committed on or after
7June 19, 1998, and when the sentence is imposed for reckless
8homicide as defined in subsection (e) of Section 9-3 of the
9Criminal Code of 1961 or the Criminal Code of 2012 if the
10offense was committed on or after January 1, 1999, and when the
11sentence is imposed for aggravated driving under the influence
12of alcohol, other drug or drugs, or intoxicating compound or
13compounds, or any combination thereof as defined in
14subparagraph (F) of paragraph (1) of subsection (d) of Section
1511-501 of the Illinois Vehicle Code, and when the sentence is
16imposed for aggravated arson if the offense was committed on or
17after July 27, 2001 (the effective date of Public Act 92-176),
18and when the sentence is imposed for aggravated driving under
19the influence of alcohol, other drug or drugs, or intoxicating
20compound or compounds, or any combination thereof as defined in
21subparagraph (C) of paragraph (1) of subsection (d) of Section
2211-501 of the Illinois Vehicle Code committed on or after
23January 1, 2011 (the effective date of Public Act 96-1230), the
24judge's statement, to be given after pronouncing the sentence,
25shall include the following:
26    "The purpose of this statement is to inform the public of

 

 

HB3882- 10 -LRB100 11029 RLC 21844 b

1the actual period of time this defendant is likely to spend in
2prison as a result of this sentence. The actual period of
3prison time served is determined by the statutes of Illinois as
4applied to this sentence by the Illinois Department of
5Corrections and the Illinois Prisoner Review Board. In this
6case, the defendant is entitled to no more than 4 1/2 days of
7sentence credit for each month of his or her sentence of
8imprisonment. Therefore, this defendant will serve at least 85%
9of his or her sentence. Assuming the defendant receives 4 1/2
10days credit for each month of his or her sentence, the period
11of estimated actual custody is ... years and ... months. If the
12defendant, because of his or her own misconduct or failure to
13comply with the institutional regulations receives lesser
14credit, the actual time served in prison will be longer."
15    When a sentence of imprisonment is imposed for first degree
16murder and the offense was committed on or after June 19, 1998,
17the judge's statement, to be given after pronouncing the
18sentence, shall include the following:
19    "The purpose of this statement is to inform the public of
20the actual period of time this defendant is likely to spend in
21prison as a result of this sentence. The actual period of
22prison time served is determined by the statutes of Illinois as
23applied to this sentence by the Illinois Department of
24Corrections and the Illinois Prisoner Review Board. In this
25case, the defendant is not entitled to sentence credit.
26Therefore, this defendant will serve 100% of his or her

 

 

HB3882- 11 -LRB100 11029 RLC 21844 b

1sentence."
2    When the sentencing order recommends placement in a
3substance abuse program for any offense that results in
4incarceration in a Department of Corrections facility and the
5crime was committed on or after September 1, 2003 (the
6effective date of Public Act 93-354), the judge's statement, in
7addition to any other judge's statement required under this
8Section, to be given after pronouncing the sentence, shall
9include the following:
10    "The purpose of this statement is to inform the public of
11the actual period of time this defendant is likely to spend in
12prison as a result of this sentence. The actual period of
13prison time served is determined by the statutes of Illinois as
14applied to this sentence by the Illinois Department of
15Corrections and the Illinois Prisoner Review Board. In this
16case, the defendant shall receive no sentence credit for good
17conduct under clause (3) of subsection (a) of Section 3-6-3
18until he or she participates in and completes a substance abuse
19treatment program or receives a waiver from the Director of
20Corrections pursuant to clause (4.5) of subsection (a) of
21Section 3-6-3."
22    (c-4) Before the sentencing hearing and as part of the
23presentence investigation under Section 5-3-1, the court shall
24inquire of the defendant whether the defendant is currently
25serving in or is a veteran of the Armed Forces of the United
26States. If the defendant is currently serving in the Armed

 

 

HB3882- 12 -LRB100 11029 RLC 21844 b

1Forces of the United States or is a veteran of the Armed Forces
2of the United States and has been diagnosed as having a mental
3illness by a qualified psychiatrist or clinical psychologist or
4physician, the court may:
5        (1) order that the officer preparing the presentence
6    report consult with the United States Department of
7    Veterans Affairs, Illinois Department of Veterans'
8    Affairs, or another agency or person with suitable
9    knowledge or experience for the purpose of providing the
10    court with information regarding treatment options
11    available to the defendant, including federal, State, and
12    local programming; and
13        (2) consider the treatment recommendations of any
14    diagnosing or treating mental health professionals
15    together with the treatment options available to the
16    defendant in imposing sentence.
17    For the purposes of this subsection (c-4), "qualified
18psychiatrist" means a reputable physician licensed in Illinois
19to practice medicine in all its branches, who has specialized
20in the diagnosis and treatment of mental and nervous disorders
21for a period of not less than 5 years.
22    (c-6) In imposing a sentence, the trial judge shall
23specify, on the record, the particular evidence and other
24reasons which led to his or her determination that a motor
25vehicle was used in the commission of the offense.
26    (d) When the defendant is committed to the Department of

 

 

HB3882- 13 -LRB100 11029 RLC 21844 b

1Corrections, the State's Attorney shall and counsel for the
2defendant may file a statement with the clerk of the court to
3be transmitted to the department, agency or institution to
4which the defendant is committed to furnish such department,
5agency or institution with the facts and circumstances of the
6offense for which the person was committed together with all
7other factual information accessible to them in regard to the
8person prior to his commitment relative to his habits,
9associates, disposition and reputation and any other facts and
10circumstances which may aid such department, agency or
11institution during its custody of such person. The clerk shall
12within 10 days after receiving any such statements transmit a
13copy to such department, agency or institution and a copy to
14the other party, provided, however, that this shall not be
15cause for delay in conveying the person to the department,
16agency or institution to which he has been committed.
17    (e) The clerk of the court shall transmit to the
18department, agency or institution, if any, to which the
19defendant is committed, the following:
20        (1) the sentence imposed;
21        (2) any statement by the court of the basis for
22    imposing the sentence;
23        (3) any presentence reports;
24        (3.5) any sex offender evaluations;
25        (3.6) any substance abuse treatment eligibility
26    screening and assessment of the defendant by an agent

 

 

HB3882- 14 -LRB100 11029 RLC 21844 b

1    designated by the State of Illinois to provide assessment
2    services for the Illinois courts;
3        (4) the number of days, if any, which the defendant has
4    been in custody and for which he is entitled to credit
5    against the sentence, which information shall be provided
6    to the clerk by the sheriff;
7        (4.1) any finding of great bodily harm made by the
8    court with respect to an offense enumerated in subsection
9    (c-1);
10        (5) all statements filed under subsection (d) of this
11    Section;
12        (6) any medical or mental health records or summaries
13    of the defendant;
14        (7) the municipality where the arrest of the offender
15    or the commission of the offense has occurred, where such
16    municipality has a population of more than 25,000 persons;
17        (8) all statements made and evidence offered under
18    paragraph (7) of subsection (a) of this Section; and
19        (9) all additional matters which the court directs the
20    clerk to transmit.
21    (f) In cases in which the court finds that a motor vehicle
22was used in the commission of the offense for which the
23defendant is being sentenced, the clerk of the court shall,
24within 5 days thereafter, forward a report of such conviction
25to the Secretary of State.
26(Source: P.A. 99-861, eff. 1-1-17.)