100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB4726

 

Introduced , by Rep. Thomas M. Bennett

 

SYNOPSIS AS INTRODUCED:
 
730 ILCS 5/5-5-6  from Ch. 38, par. 1005-5-6

    Amends the Unified Code of Corrections. Provides that restitution shall be paid to the victim before any court or law imposed cost, fine, fee, assessment, or other payment by the defendant is paid. Deletes language providing that the court may require the defendant to apply the balance of the cash bond, after payment of court costs, and any fine that may be imposed to the payment of restitution.


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FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

HB4726LRB100 17062 SLF 32213 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 5-5-6 as follows:
 
6    (730 ILCS 5/5-5-6)  (from Ch. 38, par. 1005-5-6)
7    Sec. 5-5-6. In all convictions for offenses in violation of
8the Criminal Code of 1961 or the Criminal Code of 2012 or of
9Section 11-501 of the Illinois Vehicle Code in which the person
10received any injury to his or her person or damage to his or
11her real or personal property as a result of the criminal act
12of the defendant, the court shall order restitution as provided
13in this Section. In all other cases, except cases in which
14restitution is required under this Section, the court must at
15the sentence hearing determine whether restitution is an
16appropriate sentence to be imposed on each defendant convicted
17of an offense. If the court determines that an order directing
18the offender to make restitution is appropriate, the offender
19may be sentenced to make restitution. The court may consider
20restitution an appropriate sentence to be imposed on each
21defendant convicted of an offense in addition to a sentence of
22imprisonment. The sentence of the defendant to a term of
23imprisonment is not a mitigating factor that prevents the court

 

 

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1from ordering the defendant to pay restitution. If the offender
2is sentenced to make restitution the Court shall determine the
3restitution as hereinafter set forth:
4        (a) At the sentence hearing, the court shall determine
5    whether the property may be restored in kind to the
6    possession of the owner or the person entitled to
7    possession thereof; or whether the defendant is possessed
8    of sufficient skill to repair and restore property damaged;
9    or whether the defendant should be required to make
10    restitution in cash, for out-of-pocket expenses, damages,
11    losses, or injuries found to have been proximately caused
12    by the conduct of the defendant or another for whom the
13    defendant is legally accountable under the provisions of
14    Article 5 of the Criminal Code of 1961 or the Criminal Code
15    of 2012.
16        (b) In fixing the amount of restitution to be paid in
17    cash, the court shall allow credit for property returned in
18    kind, for property damages ordered to be repaired by the
19    defendant, and for property ordered to be restored by the
20    defendant; and after granting the credit, the court shall
21    assess the actual out-of-pocket expenses, losses, damages,
22    and injuries suffered by the victim named in the charge and
23    any other victims who may also have suffered out-of-pocket
24    expenses, losses, damages, and injuries proximately caused
25    by the same criminal conduct of the defendant, and
26    insurance carriers who have indemnified the named victim or

 

 

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1    other victims for the out-of-pocket expenses, losses,
2    damages, or injuries, provided that in no event shall
3    restitution be ordered to be paid on account of pain and
4    suffering. When a victim's out-of-pocket expenses have
5    been paid pursuant to the Crime Victims Compensation Act,
6    the court shall order restitution be paid to the
7    compensation program. If a defendant is placed on
8    supervision for, or convicted of, domestic battery, the
9    defendant shall be required to pay restitution to any
10    domestic violence shelter in which the victim and any other
11    family or household members lived because of the domestic
12    battery. The amount of the restitution shall equal the
13    actual expenses of the domestic violence shelter in
14    providing housing and any other services for the victim and
15    any other family or household members living at the
16    shelter. If a defendant fails to pay restitution in the
17    manner or within the time period specified by the court,
18    the court may enter an order directing the sheriff to seize
19    any real or personal property of a defendant to the extent
20    necessary to satisfy the order of restitution and dispose
21    of the property by public sale. All proceeds from such sale
22    in excess of the amount of restitution plus court costs and
23    the costs of the sheriff in conducting the sale shall be
24    paid to the defendant. The defendant convicted of domestic
25    battery, if a person under 18 years of age was present and
26    witnessed the domestic battery of the victim, is liable to

 

 

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1    pay restitution for the cost of any counseling required for
2    the child at the discretion of the court.
3        (c) In cases where more than one defendant is
4    accountable for the same criminal conduct that results in
5    out-of-pocket expenses, losses, damages, or injuries, each
6    defendant shall be ordered to pay restitution in the amount
7    of the total actual out-of-pocket expenses, losses,
8    damages, or injuries to the victim proximately caused by
9    the conduct of all of the defendants who are legally
10    accountable for the offense.
11            (1) In no event shall the victim be entitled to
12        recover restitution in excess of the actual
13        out-of-pocket expenses, losses, damages, or injuries,
14        proximately caused by the conduct of all of the
15        defendants.
16            (2) As between the defendants, the court may
17        apportion the restitution that is payable in
18        proportion to each co-defendant's culpability in the
19        commission of the offense.
20            (3) In the absence of a specific order apportioning
21        the restitution, each defendant shall bear his pro rata
22        share of the restitution.
23            (4) As between the defendants, each defendant
24        shall be entitled to a pro rata reduction in the total
25        restitution required to be paid to the victim for
26        amounts of restitution actually paid by co-defendants,

 

 

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1        and defendants who shall have paid more than their pro
2        rata share shall be entitled to refunds to be computed
3        by the court as additional amounts are paid by
4        co-defendants.
5        (d) In instances where a defendant has more than one
6    criminal charge pending against him in a single case, or
7    more than one case, and the defendant stands convicted of
8    one or more charges, a plea agreement negotiated by the
9    State's Attorney and the defendants may require the
10    defendant to make restitution to victims of charges that
11    have been dismissed or which it is contemplated will be
12    dismissed under the terms of the plea agreement, and under
13    the agreement, the court may impose a sentence of
14    restitution on the charge or charges of which the defendant
15    has been convicted that would require the defendant to make
16    restitution to victims of other offenses as provided in the
17    plea agreement.
18        (e) Restitution shall be paid to the victim before any
19    court or law imposed cost, fine, fee, assessment, or other
20    payment by the defendant is paid. The court may require the
21    defendant to apply the balance of the cash bond, after
22    payment of court costs, and any fine that may be imposed to
23    the payment of restitution.
24        (f) Taking into consideration the ability of the
25    defendant to pay, including any real or personal property
26    or any other assets of the defendant, the court shall

 

 

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1    determine whether restitution shall be paid in a single
2    payment or in installments, and shall fix a period of time
3    not in excess of 5 years, except for violations of Sections
4    16-1.3 and 17-56 of the Criminal Code of 1961 or the
5    Criminal Code of 2012, or the period of time specified in
6    subsection (f-1), not including periods of incarceration,
7    within which payment of restitution is to be paid in full.
8    Complete restitution shall be paid in as short a time
9    period as possible. However, if the court deems it
10    necessary and in the best interest of the victim, the court
11    may extend beyond 5 years the period of time within which
12    the payment of restitution is to be paid. If the defendant
13    is ordered to pay restitution and the court orders that
14    restitution is to be paid over a period greater than 6
15    months, the court shall order that the defendant make
16    monthly payments; the court may waive this requirement of
17    monthly payments only if there is a specific finding of
18    good cause for waiver.
19        (f-1)(1) In addition to any other penalty prescribed by
20    law and any restitution ordered under this Section that did
21    not include long-term physical health care costs, the court
22    may, upon conviction of any misdemeanor or felony, order a
23    defendant to pay restitution to a victim in accordance with
24    the provisions of this subsection (f-1) if the victim has
25    suffered physical injury as a result of the offense that is
26    reasonably probable to require or has required long-term

 

 

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1    physical health care for more than 3 months. As used in
2    this subsection (f-1) "long-term physical health care"
3    includes mental health care.
4        (2) The victim's estimate of long-term physical health
5    care costs may be made as part of a victim impact statement
6    under Section 6 of the Rights of Crime Victims and
7    Witnesses Act or made separately. The court shall enter the
8    long-term physical health care restitution order at the
9    time of sentencing. An order of restitution made under this
10    subsection (f-1) shall fix a monthly amount to be paid by
11    the defendant for as long as long-term physical health care
12    of the victim is required as a result of the offense. The
13    order may exceed the length of any sentence imposed upon
14    the defendant for the criminal activity. The court shall
15    include as a special finding in the judgment of conviction
16    its determination of the monthly cost of long-term physical
17    health care.
18        (3) After a sentencing order has been entered, the
19    court may from time to time, on the petition of either the
20    defendant or the victim, or upon its own motion, enter an
21    order for restitution for long-term physical care or modify
22    the existing order for restitution for long-term physical
23    care as to the amount of monthly payments. Any modification
24    of the order shall be based only upon a substantial change
25    of circumstances relating to the cost of long-term physical
26    health care or the financial condition of either the

 

 

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1    defendant or the victim. The petition shall be filed as
2    part of the original criminal docket.
3        (g) In addition to the sentences provided for in
4    Sections 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60,
5    11-19.2, 11-20.1, 11-20.1B, 11-20.3, 12-13, 12-14,
6    12-14.1, 12-15, and 12-16, and subdivision (a)(4) of
7    Section 11-14.4, of the Criminal Code of 1961 or the
8    Criminal Code of 2012, the court may order any person who
9    is convicted of violating any of those Sections or who was
10    charged with any of those offenses and which charge was
11    reduced to another charge as a result of a plea agreement
12    under subsection (d) of this Section to meet all or any
13    portion of the financial obligations of treatment,
14    including but not limited to medical, psychiatric, or
15    rehabilitative treatment or psychological counseling,
16    prescribed for the victim or victims of the offense.
17        The payments shall be made by the defendant to the
18    clerk of the circuit court and transmitted by the clerk to
19    the appropriate person or agency as directed by the court.
20    Except as otherwise provided in subsection (f-1), the order
21    may require such payments to be made for a period not to
22    exceed 5 years after sentencing, not including periods of
23    incarceration.
24        (h) The judge may enter an order of withholding to
25    collect the amount of restitution owed in accordance with
26    Part 8 of Article XII of the Code of Civil Procedure.

 

 

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1        (i) A sentence of restitution may be modified or
2    revoked by the court if the offender commits another
3    offense, or the offender fails to make restitution as
4    ordered by the court, but no sentence to make restitution
5    shall be revoked unless the court shall find that the
6    offender has had the financial ability to make restitution,
7    and he has wilfully refused to do so. When the offender's
8    ability to pay restitution was established at the time an
9    order of restitution was entered or modified, or when the
10    offender's ability to pay was based on the offender's
11    willingness to make restitution as part of a plea agreement
12    made at the time the order of restitution was entered or
13    modified, there is a rebuttable presumption that the facts
14    and circumstances considered by the court at the hearing at
15    which the order of restitution was entered or modified
16    regarding the offender's ability or willingness to pay
17    restitution have not materially changed. If the court shall
18    find that the defendant has failed to make restitution and
19    that the failure is not wilful, the court may impose an
20    additional period of time within which to make restitution.
21    The length of the additional period shall not be more than
22    2 years. The court shall retain all of the incidents of the
23    original sentence, including the authority to modify or
24    enlarge the conditions, and to revoke or further modify the
25    sentence if the conditions of payment are violated during
26    the additional period.

 

 

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1        (j) The procedure upon the filing of a Petition to
2    Revoke a sentence to make restitution shall be the same as
3    the procedures set forth in Section 5-6-4 of this Code
4    governing violation, modification, or revocation of
5    Probation, of Conditional Discharge, or of Supervision.
6        (k) Nothing contained in this Section shall preclude
7    the right of any party to proceed in a civil action to
8    recover for any damages incurred due to the criminal
9    misconduct of the defendant.
10        (l) Restitution ordered under this Section shall not be
11    subject to disbursement by the circuit clerk under Section
12    27.5 of the Clerks of Courts Act.
13        (m) A restitution order under this Section is a
14    judgment lien in favor of the victim that:
15            (1) Attaches to the property of the person subject
16        to the order;
17            (2) May be perfected in the same manner as provided
18        in Part 3 of Article 9 of the Uniform Commercial Code;
19            (3) May be enforced to satisfy any payment that is
20        delinquent under the restitution order by the person in
21        whose favor the order is issued or the person's
22        assignee; and
23            (4) Expires in the same manner as a judgment lien
24        created in a civil proceeding.
25        When a restitution order is issued under this Section,
26    the issuing court shall send a certified copy of the order

 

 

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1    to the clerk of the circuit court in the county where the
2    charge was filed. Upon receiving the order, the clerk shall
3    enter and index the order in the circuit court judgment
4    docket.
5        (n) An order of restitution under this Section does not
6    bar a civil action for:
7            (1) Damages that the court did not require the
8        person to pay to the victim under the restitution order
9        but arise from an injury or property damages that is
10        the basis of restitution ordered by the court; and
11            (2) Other damages suffered by the victim.
12    The restitution order is not discharged by the completion
13of the sentence imposed for the offense.
14    A restitution order under this Section is not discharged by
15the liquidation of a person's estate by a receiver. A
16restitution order under this Section may be enforced in the
17same manner as judgment liens are enforced under Article XII of
18the Code of Civil Procedure.
19    The provisions of Section 2-1303 of the Code of Civil
20Procedure, providing for interest on judgments, apply to
21judgments for restitution entered under this Section.
22(Source: P.A. 96-290, eff. 8-11-09; 96-1551, eff. 7-1-11;
2397-482, eff. 1-1-12; 97-817, eff. 1-1-13; 97-1150, eff.
241-25-13.)