HB5573 100TH GENERAL ASSEMBLY

LRB100 20734 SLF 36213 b

100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB5573

Introduced 2/16/2018, by Rep. Christian L. Mitchell

SYNOPSIS AS INTRODUCED:

705 ILCS 405/5-705
725 ILCS 120/3	from Ch. 38, par. 1403
725 ILCS 120/4.5
725 ILCS 120/6	from Ch. 38, par. 1406
730 ILCS 5/5-2-4	from Ch. 38, par. 1005-2-4
730 ILCS 5/5-4-1	from Ch. 38, par. 1005-4-1

Amends the Juvenile Court Act of 1987. Provides that a crime victim shall be allowed to present an oral or written statement in any case in which: (1) a juvenile has been adjudicated delinquent for a violent crime after a bench or jury trial; or (2) the petition alleged the commission of a violent crime and the juvenile has been adjudicated delinquent under a plea agreement of a crime that is not a violent crime. Amends the Rights of Crime Victims and Witnesses Act. Makes changes to the definitions of "sentence", "sentencing", and "court proceeding". Defines "status hearing" and "support person". Provides that a party who intends to call an advocate as a witness at trial must seek permission of the court before the subpoena is issued. Provides that the party must file a written motion at least 90 days before trial that sets forth specifically the issues on which the advocate's testimony is sought and an offer of proof regarding: (1) the content of the anticipated testimony of the advocate; and (2) the relevance, admissibility, and materiality of the anticipated testimony in sufficient time to allow the court to rule and the victim to seek appellate review. Provides that if a victim has asserted the right to have a support person present at the court proceedings, the victim shall provide the name of the person the victim has chosen to be the victim's support person to the prosecuting attorney, who shall provide the name to defendant. Provides that if the defendant intends to call the support person as a witness at trial, the defendant must seek permission of the court before a subpoena is issued. Amends the Unified Code of Corrections. Provides that the court shall allow a victim to make an oral statement if the victim is present in the courtroom and requests to make an oral statement. Provides that an oral statement includes the victim or a representative of the victim reading the written statement. Provides that victim and any person making an oral statement shall not be put under oath or subject to cross-examination. Makes other changes.

A BILL FOR

AN ACT concerning crime victims.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Juvenile Court Act of 1987 is amended by changing Section 5-705 as follows:

(705 ILCS 405/5-705)

Sec. 5-705. Sentencing hearing; evidence; continuance.

(1) In this subsection (1), "violent crime" has the same meaning ascribed to the term in subsection (c) of Section 3 of the Rights of Crime Victims and Witnesses Act. At the sentencing hearing, the court shall determine whether it is in the best interests of the minor or the public that he or she be made a ward of the court, and, if he or she is to be made a ward of the court, the court shall determine the proper disposition best serving the interests of the minor and the public. All evidence helpful in determining these questions, including oral and written reports, may be admitted and may be relied upon to the extent of its probative value, even though not competent for the purposes of the trial. A crime victim shall be allowed to present an oral or written statement, as guaranteed by Article I, Section 8.1 of the Illinois Constitution and as provided in Section 6 of the Rights of Crime Victims and Witnesses Act, in any case in which: (a) a juvenile has been adjudicated delinquent for a violent crime after a bench or jury trial; or (b) the petition alleged the commission of a violent crime and the juvenile has been adjudicated delinquent under a plea agreement of a crime that is not a violent crime. The court shall allow a victim to make an oral statement if the victim is present in the courtroom and requests to make an oral statement. An oral statement includes the victim or a representative of the victim reading the written statement. The court may allow persons impacted by the crime who are not victims under subsection (a) of Section 3 of the Rights of Crime Victims and Witnesses Act to present an oral or written statement. A victim and any person making an oral statement shall not be put under oath or subject to cross-examination. A record of a prior continuance under supervision under Section 5-615, whether successfully completed or not, is admissible at the sentencing hearing. No order of commitment to the Department of Juvenile Justice shall be entered against a minor before a written report of social investigation, which has been completed within the previous 60 days, is presented to and considered by the court.

(2) Once a party has been served in compliance with Section 5-525, no further service or notice must be given to that party prior to proceeding to a sentencing hearing. Before imposing sentence the court shall advise the State's Attorney and the parties who are present or their counsel of the factual contents and the conclusions of the reports prepared for the use of the court and considered by it, and afford fair opportunity, if requested, to controvert them. Factual contents, conclusions, documents and sources disclosed by the court under this paragraph shall not be further disclosed without the express approval of the court.

(3) On its own motion or that of the State's Attorney, a parent, guardian, legal custodian, or counsel, the court may adjourn the hearing for a reasonable period to receive reports or other evidence and, in such event, shall make an appropriate order for detention of the minor or his or her release from detention subject to supervision by the court during the period of the continuance. In the event the court shall order detention hereunder, the period of the continuance shall not exceed 30 court days. At the end of such time, the court shall release the minor from detention unless notice is served at least 3 days prior to the hearing on the continued date that the State will be seeking an extension of the period of detention, which notice shall state the reason for the request for the extension. The extension of detention may be for a maximum period of an additional 15 court days or a lesser number of days at the discretion of the court. However, at the expiration of the period of extension, the court shall release the minor from detention if a further continuance is granted. In scheduling investigations and hearings, the court shall give priority to proceedings in which a minor is in detention or has otherwise been removed from his or her home before a sentencing order has been made.

(4) When commitment to the Department of Juvenile Justice is ordered, the court shall state the basis for selecting the particular disposition, and the court shall prepare such a statement for inclusion in the record.

(Source: P.A. 94-696, eff. 6-1-06.)

Section 10. The Rights of Crime Victims and Witnesses Act is amended by changing Sections 3, 4.5, and 6 as follows:

(725 ILCS 120/3) (from Ch. 38, par. 1403)

Sec. 3. The terms used in this Act shall have the following meanings:

(a) "Crime victim" or "victim" means: (1) any natural person determined by the prosecutor or the court to have suffered direct physical or psychological harm as a result of a violent crime perpetrated or attempted against that person or direct physical or psychological harm as a result of (i) a violation of Section 11-501 of the Illinois Vehicle Code or similar provision of a local ordinance or (ii) a violation of Section 9-3 of the Criminal Code of 1961 or the Criminal Code of 2012; (2) in the case of a crime victim who is under 18 years of age or an adult victim who is incompetent or incapacitated, both parents, legal guardians, foster parents, or a single adult representative; (3) in the case of an adult deceased victim, 2 representatives who may be the spouse, parent, child or sibling of the victim, or the representative of the victim's estate; and (4) an immediate family member of a victim under clause (1) of this paragraph (a) chosen by the victim. If the victim is 18 years of age or over, the victim may choose any person to be the victim's representative. In no event shall the defendant or any person who aided and abetted in the commission of the crime be considered a victim, a crime victim, or a representative of the victim.

A board, agency, or other governmental entity making decisions regarding an offender's release, sentence reduction, or clemency can determine additional persons are victims for the purpose of its proceedings.

(a-3) "Advocate" means a person whose communications with the victim are privileged under Section 8-802.1 or 8-802.2 of the Code of Civil Procedure, or Section 227 of the Illinois Domestic Violence Act of 1986.

(a-5) "Confer" means to consult together, share information, compare opinions and carry on a discussion or deliberation.

(a-7) "Sentence" includes, but is not limited to, the imposition of sentence, a request for a reduction in sentence, parole, mandatory supervised release, aftercare release, early release, inpatient treatment, outpatient treatment, conditional release after a finding that the defendant is not guilty by reason of insanity, clemency, or a proposal that would reduce the defendant's sentence or result in the defendant's release. "Early release" refers to a discretionary release.

(a-9) "Sentencing" includes, but is not limited to, the imposition of sentence and a request for a reduction in sentence, parole, mandatory supervised release, aftercare release, or early release, consideration of inpatient treatment or outpatient treatment, or conditional release after a finding that the defendant is not guilty by reason of insanity.

(a-10) "Status hearing" means a hearing designed to provide information to the court, at which no motion of a substantive nature and no constitutional or statutory right of a crime victim is implicated or at issue.

(b) "Witness" means: any person who personally observed the commission of a crime and who will testify on behalf of the State of Illinois; or a person who will be called by the prosecution to give testimony establishing a necessary nexus between the offender and the violent crime.

(c) "Violent crime" means: (1) any felony in which force or threat of force was used against the victim; (2) any offense involving sexual exploitation, sexual conduct, or sexual penetration; (3) a violation of Section 11-20.1, 11-20.1B, 11-20.3, 11-23, or 11-23.5 of the Criminal Code of 1961 or the Criminal Code of 2012; (4) domestic battery or stalking; (5) violation of an order of protection, a civil no contact order, or a stalking no contact order; (6) any misdemeanor which results in death or great bodily harm to the victim; or (7) any violation of Section 9-3 of the Criminal Code of 1961 or the Criminal Code of 2012, or Section 11-501 of the Illinois Vehicle Code, or a similar provision of a local ordinance, if the violation resulted in personal injury or death. "Violent crime" includes any action committed by a juvenile that would be a violent crime if committed by an adult. For the purposes of this paragraph, "personal injury" shall include any Type A injury as indicated on the traffic accident report completed by a law enforcement officer that requires immediate professional attention in either a doctor's office or medical facility. A type A injury shall include severely bleeding wounds, distorted extremities, and injuries that require the injured party to be carried from the scene.

(d) (Blank).

(e) "Court proceedings" includes, but is not limited to, the preliminary hearing, any post-arraignment hearing the effect of which may be the release of the defendant from custody or to alter the conditions of bond, change of plea hearing, the trial, any pretrial or post-trial hearing, sentencing, any oral argument or hearing before an Illinois appellate court, any hearing under the Mental Health and Developmental Disabilities Code or Section 5-2-4 of the Unified Code of Corrections after a finding that the defendant is not guilty by reason of insanity, including a hearing for conditional release, any hearing related to a modification of sentence, probation revocation hearing, aftercare release or parole hearings, post-conviction relief proceedings, habeas corpus proceedings and clemency proceedings related to the defendant's conviction or sentence. For purposes of the victim's right to be present, "court proceedings" does not include (1) hearings under Section 109-1 of the Code of Criminal Procedure of 1963, (2) grand jury proceedings, (3) status hearings, or (4) the issuance of an order or decision of an Illinois court that dismisses a charge, reverses a conviction, reduces a sentence, or releases an offender under a court rule.

(f) "Concerned citizen" includes relatives of the victim, friends of the victim, witnesses to the crime, or any other person associated with the victim or prisoner.

(g) "Victim's attorney" means an attorney retained by the victim for the purposes of asserting the victim's constitutional and statutory rights. An attorney retained by the victim means an attorney who is hired to represent the victim at the victim's expense or an attorney who has agreed to provide pro bono representation. Nothing in this statute creates a right to counsel at public expense for a victim.

(h) "Support person" means a person chosen by a victim to be present at court proceedings.

(Source: P.A. 98-558, eff. 1-1-14; 99-143, eff. 7-27-15; 99-413, eff. 8-20-15; 99-642, eff. 7-28-16; 99-671, eff. 1-1-17.)

(725 ILCS 120/4.5)

Sec. 4.5. Procedures to implement the rights of crime victims. To afford crime victims their rights, law enforcement, prosecutors, judges and corrections will provide information, as appropriate of the following procedures:

(a) At the request of the crime victim, law enforcement authorities investigating the case shall provide notice of the status of the investigation, except where the State's Attorney determines that disclosure of such information would unreasonably interfere with the investigation, until such time as the alleged assailant is apprehended or the investigation is closed.

(a-5) When law enforcement authorities re-open a closed case to resume investigating, they shall provide notice of the re-opening of the case, except where the State's Attorney determines that disclosure of such information would unreasonably interfere with the investigation.

(b) The office of the State's Attorney:

(1) shall provide notice of the filing of an information, the return of an indictment, or the filing of a petition to adjudicate a minor as a delinquent for a violent crime;

(2) shall provide timely notice of the date, time, and place of court proceedings; of any change in the date, time, and place of court proceedings; and of any cancellation of court proceedings. Notice shall be provided in sufficient time, wherever possible, for the victim to make arrangements to attend or to prevent an unnecessary appearance at court proceedings;

(3) or victim advocate personnel shall provide information of social services and financial assistance available for victims of crime, including information of how to apply for these services and assistance;

(3.5) or victim advocate personnel shall provide information about available victim services, including referrals to programs, counselors, and agencies that assist a victim to deal with trauma, loss, and grief;

(4) shall assist in having any stolen or other personal property held by law enforcement authorities for evidentiary or other purposes returned as expeditiously as possible, pursuant to the procedures set out in Section 115-9 of the Code of Criminal Procedure of 1963;

(5) or victim advocate personnel shall provide appropriate employer intercession services to ensure that employers of victims will cooperate with the criminal justice system in order to minimize an employee's loss of pay and other benefits resulting from court appearances;

(6) shall provide, whenever possible, a secure waiting area during court proceedings that does not require victims to be in close proximity to defendants or juveniles accused of a violent crime, and their families and friends;

(7) shall provide notice to the crime victim of the right to have a translator present at all court proceedings and, in compliance with the federal Americans with Disabilities Act of 1990, the right to communications access through a sign language interpreter or by other means;

(8) (blank);

(8.5) shall inform the victim of the right to be present at all court proceedings, unless the victim is to testify and the court determines that the victim's testimony would be materially affected if the victim hears other testimony at trial;

(9) shall inform the victim of the right to have present at all court proceedings, subject to the rules of evidence and confidentiality, an advocate and other support person of the victim's choice;

(9.3) shall inform the victim of the right to retain an attorney, at the victim's own expense, who, upon written notice filed with the clerk of the court and State's Attorney, is to receive copies of all notices, motions and court orders filed thereafter in the case, in the same manner as if the victim were a named party in the case;

(9.5) shall inform the victim of (A) the victim's right under Section 6 of this Act to make a victim impact statement at the sentencing hearing; (B) the right of the victim's spouse, guardian, parent, grandparent and other immediate family and household members under Section 6 of this Act to present a an impact statement at sentencing; and (C) if a presentence report is to be prepared, the right of the victim's spouse, guardian, parent, grandparent and other immediate family and household members to submit information to the preparer of the presentence report about the effect the offense has had on the victim and the person;

(10) at the sentencing shall make a good faith attempt to explain the minimum amount of time during which the defendant may actually be physically imprisoned. The Office of the State's Attorney shall further notify the crime victim of the right to request from the Prisoner Review Board or Department of Juvenile Justice information concerning the release of the defendant;

(11) shall request restitution at sentencing and as part of a plea agreement if the victim requests restitution;

(12) shall, upon the court entering a verdict of not guilty by reason of insanity, inform the victim of the notification services available from the Department of Human Services, including the statewide telephone number, under subparagraph (d)(2) of this Section;

(13) shall provide notice within a reasonable time after receipt of notice from the custodian, of the release of the defendant on bail or personal recognizance or the release from detention of a minor who has been detained;

(14) shall explain in nontechnical language the details of any plea or verdict of a defendant, or any adjudication of a juvenile as a delinquent;

(15) shall make all reasonable efforts to consult with the crime victim before the Office of the State's Attorney makes an offer of a plea bargain to the defendant or enters into negotiations with the defendant concerning a possible plea agreement, and shall consider the written victim impact statement, if prepared prior to entering into a plea agreement. The right to consult with the prosecutor does not include the right to veto a plea agreement or to insist the case go to trial. If the State's Attorney has not consulted with the victim prior to making an offer or entering into plea negotiations with the defendant, the Office of the State's Attorney shall notify the victim of the offer or the negotiations within 2 business days and confer with the victim;

(16) shall provide notice of the ultimate disposition of the cases arising from an indictment or an information, or a petition to have a juvenile adjudicated as a delinquent for a violent crime;

(17) shall provide notice of any appeal taken by the defendant and information on how to contact the appropriate agency handling the appeal, and how to request notice of any hearing, oral argument, or decision of an appellate court;

(18) shall provide timely notice of any request for post-conviction review filed by the defendant under Article 122 of the Code of Criminal Procedure of 1963, and of the date, time and place of any hearing concerning the petition. Whenever possible, notice of the hearing shall be given within 48 hours of the court's scheduling of the hearing; and

(19) shall forward a copy of any statement presented under Section 6 to the Prisoner Review Board or Department of Juvenile Justice to be considered in making a determination under Section 3-2.5-85 or subsection (b) of Section 3-3-8 of the Unified Code of Corrections.

(c) The court shall ensure that the rights of the victim are afforded.

(c-5) The following procedures shall be followed to afford victims the rights guaranteed by Article I, Section 8.1 of the Illinois Constitution:

(1) Written notice. A victim may complete a written notice of intent to assert rights on a form prepared by the Office of the Attorney General and provided to the victim by the State's Attorney. The victim may at any time provide a revised written notice to the State's Attorney. The State's Attorney shall file the written notice with the court. At the beginning of any court proceeding in which the right of a victim may be at issue, the court and prosecutor shall review the written notice to determine whether the victim has asserted the right that may be at issue.

(2) Victim's retained attorney. A victim's attorney shall file an entry of appearance limited to assertion of the victim's rights. Upon the filing of the entry of appearance and service on the State's Attorney and the defendant, the attorney is to receive copies of all notices, motions and court orders filed thereafter in the case.

(3) Standing. The victim has standing to assert the rights enumerated in subsection (a) of Article I, Section 8.1 of the Illinois Constitution and the statutory rights under Section 4 of this Act in any court exercising jurisdiction over the criminal case. The prosecuting attorney, a victim, or the victim's retained attorney may assert the victim's rights. The defendant in the criminal case has no standing to assert a right of the victim in any court proceeding, including on appeal.

(4) Assertion of and enforcement of rights.

(A) The prosecuting attorney shall assert a victim's right or request enforcement of a right by filing a motion or by orally asserting the right or requesting enforcement in open court in the criminal case outside the presence of the jury. The prosecuting attorney shall consult with the victim and the victim's attorney regarding the assertion or enforcement of a right. If the prosecuting attorney decides not to assert or enforce a victim's right, the prosecuting attorney shall notify the victim or the victim's attorney in sufficient time to allow the victim or the victim's attorney to assert the right or to seek enforcement of a right.

(B) If the prosecuting attorney elects not to assert a victim's right or to seek enforcement of a right, the victim or the victim's attorney may assert the victim's right or request enforcement of a right by filing a motion or by orally asserting the right or requesting enforcement in open court in the criminal case outside the presence of the jury.

(C) If the prosecuting attorney asserts a victim's right or seeks enforcement of a right, and the court denies the assertion of the right or denies the request for enforcement of a right, the victim or victim's attorney may file a motion to assert the victim's right or to request enforcement of the right within 10 days of the court's ruling. The motion need not demonstrate the grounds for a motion for reconsideration. The court shall rule on the merits of the motion.

(D) The court shall take up and decide any motion or request asserting or seeking enforcement of a victim's right without delay, unless a specific time period is specified by law or court rule. The reasons for any decision denying the motion or request shall be clearly stated on the record.

(5) Violation of rights and remedies.

(A) If the court determines that a victim's right has been violated, the court shall determine the appropriate remedy for the violation of the victim's right by hearing from the victim and the parties, considering all factors relevant to the issue, and then awarding appropriate relief to the victim.

(A-5) Consideration of an issue of a substantive nature or an issue that implicates the constitutional or statutory right of a victim at a court proceeding labeled as a status hearing shall constitute a per se violation of a victim's right.

(B) The appropriate remedy shall include only actions necessary to provide the victim the right to which the victim was entitled and may include reopening previously held proceedings; however, in no event shall the court vacate a conviction. Any remedy shall be tailored to provide the victim an appropriate remedy without violating any constitutional right of the defendant. In no event shall the appropriate remedy be a new trial, damages, or costs.

(6) Right to be heard. Whenever a victim has the right to be heard, the court shall allow the victim to exercise the right in any reasonable manner the victim chooses.

(7) Right to attend trial. A party must file a written motion to exclude a victim from trial at least 60 days prior to the date set for trial. The motion must state with specificity the reason exclusion is necessary to protect a constitutional right of the party, and must contain an offer of proof. The court shall rule on the motion within 30 days. If the motion is granted, the court shall set forth on the record the facts that support its finding that the victim's testimony will be materially affected if the victim hears other testimony at trial.

(8) Right to have advocate and support person present at court proceedings.

(A) A party who intends to call an advocate as a witness at trial must seek permission of the court before the subpoena is issued. The party must file a written motion at least 90 days before trial that sets forth specifically the issues on which the advocate's testimony is sought and an offer of proof regarding (i) the content of the anticipated testimony of the advocate; and (ii) the relevance, admissibility, and materiality of the anticipated testimony in sufficient time to allow the court to rule and the victim to seek appellate review. The court shall consider the motion and make findings within 30 days of the filing of the motion rule on the motion without delay. If the court finds by a preponderance of the evidence that: (i) the anticipated testimony is not protected by an absolute privilege; and (ii) the anticipated testimony contains relevant, admissible, and material evidence that is not available through other witnesses or evidence, the court shall issue a subpoena requiring the advocate to appear to testify at an in camera hearing. The prosecuting attorney and the victim shall have 15 days to seek appellate review before the advocate is required to testify at an ex parte in camera proceeding.

The prosecuting attorney, the victim, and the advocate's attorney shall be allowed to be present at the ex parte in camera proceeding. If, after conducting the ex parte in camera hearing, the court determines that due process requires any testimony regarding confidential or privileged information or communications, the court shall provide to the prosecuting attorney, the victim, and the advocate's attorney a written memorandum on the substance of the advocate's testimony. The prosecuting attorney, the victim, and the advocate's attorney shall have 15 days to seek appellate review before a subpoena may be issued for the advocate to testify at trial. The presence of the prosecuting attorney at the ex parte in camera proceeding does not make the substance of the advocate's testimony that the court has ruled inadmissible subject to discovery.

(B) If a victim has asserted the right to have a support person present at the court proceedings, the victim shall provide the name of the person the victim has chosen to be the victim's support person to the prosecuting attorney, within 60 days of trial. The prosecuting attorney shall provide the name to the defendant. If the defendant intends to call the support person as a witness at trial, the defendant must seek permission of the court before a subpoena is issued. The defendant must file a written motion at least 45 days prior to trial that sets forth specifically the issues on which the support person will testify and an offer of proof regarding: (i) the content of the anticipated testimony of the support person; and (ii) the relevance, admissibility, and materiality of the anticipated testimony.

If the prosecuting attorney intends to call the support person as a witness during the State's case-in-chief, the prosecuting attorney shall inform the court of this intent in the response to the defendant's written motion. The prosecutor shall call the support person as the first or second witness during the State's case-in-chief. A defendant who intends to call the support person to testify to matters outside the scope of the prosecutor's direct examination shall be allowed to inquire into these matters during cross-examination of the support person. The support person shall be allowed to remain in the courtroom after the support person has testified. A defendant who fails to question the support person about matters outside the scope of direct examination during the State's case-in-chief waives the right to challenge the presence of the support person on appeal. The court shall allow the support person to testify if called as a witness in the defendant's case-in-chief or the State's rebuttal.

If the prosecuting attorney does not intend to call the support person in the State's case-in-chief, the court shall verify with the support person whether the support person, if called as a witness, would testify as set forth in the offer of proof. If the court finds that the support person would testify as set forth in the offer of proof, the court shall rule on the relevance, materiality, and admissibility of the anticipated testimony. If the court rules the anticipated testimony is admissible, the court shall issue the subpoena. The support person may remain in the courtroom after the support person testifies and shall be allowed to testify in rebuttal.

If the court excludes the victim's support person during the State's case-in-chief, the victim shall be allowed to choose another support person to be present in court.

If the victim fails to designate a support person within 60 days of trial and the defendant has subpoenaed the support person to testify at trial, the court may exclude the support person from the trial until the support person testifies. If the court excludes the support person the victim may choose another person s a support person.

(9) Right to notice and hearing before disclosure of confidential or privileged information or records. A defendant who seeks to subpoena records of or concerning the victim that are confidential or privileged by law must seek permission of the court before the subpoena is issued. The defendant must file a written motion and an offer of proof regarding the relevance, admissibility and materiality of the records. If the court finds by a preponderance of the evidence that: (A) the records are not protected by an absolute privilege and (B) the records contain relevant, admissible, and material evidence that is not available through other witnesses or evidence, the court shall issue a subpoena requiring a sealed copy of the records be delivered to the court to be reviewed in camera. If, after conducting an in camera review of the records, the court determines that due process requires disclosure of any portion of the records, the court shall provide copies of what it intends to disclose to the prosecuting attorney and the victim. The prosecuting attorney and the victim shall have 30 days to seek appellate review before the records are disclosed to the defendant. The disclosure of copies of any portion of the records to the prosecuting attorney does not make the records subject to discovery.

(10) Right to notice of court proceedings. If the victim is not present at a court proceeding in which a right of the victim is at issue, the court shall ask the prosecuting attorney whether the victim was notified of the time, place, and purpose of the court proceeding and that the victim had a right to be heard at the court proceeding. If the court determines that timely notice was not given or that the victim was not adequately informed of the nature of the court proceeding, the court shall not rule on any substantive issues, accept a plea, or impose a sentence and shall continue the hearing for the time necessary to notify the victim of the time, place and nature of the court proceeding. The time between court proceedings shall not be attributable to the State under Section 103-5 of the Code of Criminal Procedure of 1963.

(11) Right to timely disposition of the case. A victim has the right to timely disposition of the case so as to minimize the stress, cost, and inconvenience resulting from the victim's involvement in the case. Before ruling on a motion to continue trial or other court proceeding, the court shall inquire into the circumstances for the request for the delay and, if the victim has provided written notice of the assertion of the right to a timely disposition, and whether the victim objects to the delay. If the victim objects, the prosecutor shall inform the court of the victim's objections. If the prosecutor has not conferred with the victim about the continuance, the prosecutor shall inform the court of the attempts to confer. If the court finds the attempts of the prosecutor to confer with the victim were inadequate to protect the victim's right to be heard, the court shall give the prosecutor at least 3 but not more than 5 business days to confer with the victim. In ruling on a motion to continue, the court shall consider the reasons for the requested continuance, the number and length of continuances that have been granted, the victim's objections and procedures to avoid further delays. If a continuance is granted over the victim's objection, the court shall specify on the record the reasons for the continuance and the procedures that have been or will be taken to avoid further delays.

(12) Right to Restitution.

(A) If the victim has asserted the right to restitution and the amount of restitution is known at the time of sentencing, the court shall enter the judgment of restitution at the time of sentencing.

(B) If the victim has asserted the right to restitution and the amount of restitution is not known at the time of sentencing, the prosecutor shall, within 5 days after sentencing, notify the victim what information and documentation related to restitution is needed and that the information and documentation must be provided to the prosecutor within 45 days after sentencing. Failure to timely provide information and documentation related to restitution shall be deemed a waiver of the right to restitution. The prosecutor shall file and serve within 60 days after sentencing a proposed judgment for restitution and a notice that includes information concerning the identity of any victims or other persons seeking restitution, whether any victim or other person expressly declines restitution, the nature and amount of any damages together with any supporting documentation, a restitution amount recommendation, and the names of any co-defendants and their case numbers. Within 30 days after receipt of the proposed judgment for restitution, the defendant shall file any objection to the proposed judgment, a statement of grounds for the objection, and a financial statement. If the defendant does not file an objection, the court may enter the judgment for restitution without further proceedings. If the defendant files an objection and either party requests a hearing, the court shall schedule a hearing.

(13) Access to presentence reports.

(A) The victim may request a copy of the presentence report prepared under the Unified Code of Corrections from the State's Attorney. The State's Attorney shall redact the following information before providing a copy of the report:

(i) the defendant's mental history and condition;

(ii) any evaluation prepared under subsection (b) or (b-5) of Section 5-3-2; and

(iii) the name, address, phone number, and other personal information about any other victim.

(B) The State's Attorney or the defendant may request the court redact other information in the report that may endanger the safety of any person.

(C) The State's Attorney may orally disclose to the victim any of the information that has been redacted if there is a reasonable likelihood that the information will be stated in court at the sentencing.

(D) The State's Attorney must advise the victim that the victim must maintain the confidentiality of the report and other information. Any dissemination of the report or information that was not stated at a court proceeding constitutes indirect criminal contempt of court.

(14) Appellate relief. If the trial court denies the relief requested, the victim, the victim's attorney or the prosecuting attorney may file an appeal within 30 days of the trial court's ruling. The trial or appellate court may stay the court proceedings if the court finds that a stay would not violate a constitutional right of the defendant. If the appellate court denies the relief sought, the reasons for the denial shall be clearly stated in a written opinion. In any appeal in a criminal case, the State may assert as error the court's denial of any crime victim's right in the proceeding to which the appeal relates.

(15) Limitation on appellate relief. In no case shall an appellate court provide a new trial to remedy the violation of a victim's right.

(16) The right to be reasonably protected from the accused throughout the criminal justice process and the right to have the safety of the victim and the victim's family considered in denying or fixing the amount of bail, determining whether to release the defendant, and setting conditions of release after arrest and conviction. A victim of domestic violence, a sexual offense, or stalking may request the entry of a protective order under Article 112A of the Code of Criminal Procedure of 1963.

(d)(1) The Prisoner Review Board shall inform a victim or any other concerned citizen, upon written request, of the prisoner's release on parole, mandatory supervised release, electronic detention, work release, international transfer or exchange, or by the custodian, other than the Department of Juvenile Justice, of the discharge of any individual who was adjudicated a delinquent for a crime from State custody and by the sheriff of the appropriate county of any such person's final discharge from county custody. The Prisoner Review Board, upon written request, shall provide to a victim or any other concerned citizen a recent photograph of any person convicted of a felony, upon his or her release from custody. The Prisoner Review Board, upon written request, shall inform a victim or any other concerned citizen when feasible at least 7 days prior to the prisoner's release on furlough of the times and dates of such furlough. Upon written request by the victim or any other concerned citizen, the State's Attorney shall notify the person once of the times and dates of release of a prisoner sentenced to periodic imprisonment. Notification shall be based on the most recent information as to victim's or other concerned citizen's residence or other location available to the notifying authority.

(2) When the defendant has been committed to the Department of Human Services pursuant to Section 5-2-4 or any other provision of the Unified Code of Corrections, the victim may request to be notified by the releasing authority of the approval by the court of an on-grounds pass, a supervised off-grounds pass, an unsupervised off-grounds pass, or conditional release; the release on an off-grounds pass; the return from an off-grounds pass; transfer to another facility; conditional release; escape; death; or final discharge from State custody. The Department of Human Services shall establish and maintain a statewide telephone number to be used by victims to make notification requests under these provisions and shall publicize this telephone number on its website and to the State's Attorney of each county.

(3) In the event of an escape from State custody, the Department of Corrections or the Department of Juvenile Justice immediately shall notify the Prisoner Review Board of the escape and the Prisoner Review Board shall notify the victim. The notification shall be based upon the most recent information as to the victim's residence or other location available to the Board. When no such information is available, the Board shall make all reasonable efforts to obtain the information and make the notification. When the escapee is apprehended, the Department of Corrections or the Department of Juvenile Justice immediately shall notify the Prisoner Review Board and the Board shall notify the victim.

(4) The victim of the crime for which the prisoner has been sentenced shall receive reasonable written notice not less than 30 days prior to the parole hearing or target aftercare release date and may submit, in writing, on film, videotape or other electronic means or in the form of a recording prior to the parole hearing or target aftercare release date or in person at the parole hearing or aftercare release protest hearing or if a victim of a violent crime, by calling the toll-free number established in subsection (f) of this Section, information for consideration by the Prisoner Review Board or Department of Juvenile Justice. The victim shall be notified within 7 days after the prisoner has been granted parole or aftercare release and shall be informed of the right to inspect the registry of parole decisions, established under subsection (g) of Section 3-3-5 of the Unified Code of Corrections. The provisions of this paragraph (4) are subject to the Open Parole Hearings Act.

(5) If a statement is presented under Section 6, the Prisoner Review Board or Department of Juvenile Justice shall inform the victim of any order of discharge pursuant to Section 3-2.5-85 or 3-3-8 of the Unified Code of Corrections.

(6) At the written or oral request of the victim of the crime for which the prisoner was sentenced or the State's Attorney of the county where the person seeking parole or aftercare release was prosecuted, the Prisoner Review Board or Department of Juvenile Justice shall notify the victim and the State's Attorney of the county where the person seeking parole or aftercare release was prosecuted of the death of the prisoner if the prisoner died while on parole or aftercare release or mandatory supervised release.

(7) When a defendant who has been committed to the Department of Corrections, the Department of Juvenile Justice, or the Department of Human Services is released or discharged and subsequently committed to the Department of Human Services as a sexually violent person and the victim had requested to be notified by the releasing authority of the defendant's discharge, conditional release, death, or escape from State custody, the releasing authority shall provide to the Department of Human Services such information that would allow the Department of Human Services to contact the victim.

(8) When a defendant has been convicted of a sex offense as defined in Section 2 of the Sex Offender Registration Act and has been sentenced to the Department of Corrections or the Department of Juvenile Justice, the Prisoner Review Board or the Department of Juvenile Justice shall notify the victim of the sex offense of the prisoner's eligibility for release on parole, aftercare release, mandatory supervised release, electronic detention, work release, international transfer or exchange, or by the custodian of the discharge of any individual who was adjudicated a delinquent for a sex offense from State custody and by the sheriff of the appropriate county of any such person's final discharge from county custody. The notification shall be made to the victim at least 30 days, whenever possible, before release of the sex offender.

(e) The officials named in this Section may satisfy some or all of their obligations to provide notices and other information through participation in a statewide victim and witness notification system established by the Attorney General under Section 8.5 of this Act.

(f) To permit a crime victim of a violent crime to provide information to the Prisoner Review Board or the Department of Juvenile Justice for consideration by the Board or Department at a parole hearing or before an aftercare release decision of a person who committed the crime against the victim in accordance with clause (d)(4) of this Section or at a proceeding to determine the conditions of mandatory supervised release of a person sentenced to a determinate sentence or at a hearing on revocation of mandatory supervised release of a person sentenced to a determinate sentence, the Board shall establish a toll-free number that may be accessed by the victim of a violent crime to present that information to the Board.

(Source: P.A. 99-413, eff. 8-20-15; 99-628, eff. 1-1-17; 100-199, eff. 1-1-18.)

(725 ILCS 120/6) (from Ch. 38, par. 1406)

Sec. 6. Right to be heard at sentencing.

(a) A crime victim shall be allowed to present an oral or written victim impact statement in any case in which a defendant has been convicted of a violent crime or a juvenile has been adjudicated delinquent for a violent crime after a bench or jury trial, or a defendant who was charged with a violent crime and has been convicted under a plea agreement of a crime that is not a violent crime as defined in subsection (c) of Section 3 of this Act. The court shall allow a victim to make an oral impact statement if the victim is present in the courtroom and requests to make an oral statement. An oral statement includes the victim or a representative of the victim reading the written impact statement. The court may allow persons impacted by the crime who are not victims under subsection (a) of Section 3 of this Act to present an oral or written statement. A victim and any person making an oral statement shall not be put under oath or subject to cross-examination. The court shall consider any impact statement presented along with all other appropriate factors in determining the sentence of the defendant or disposition of such juvenile.

(a-1) In any case where a defendant has been convicted of a violation of any statute, ordinance, or regulation relating to the operation or use of motor vehicles, the use of streets and highways by pedestrians or the operation of any other wheeled or tracked vehicle, except parking violations, if the violation resulted in great bodily harm or death, the person who suffered great bodily harm, the injured person's representative, or the representative of a deceased person shall be entitled to notice of the sentencing hearing. "Representative" includes the spouse, guardian, grandparent, or other immediate family or household member of an injured or deceased person. The injured person or his or her representative and a representative of the deceased person shall have the right to address the court regarding the impact that the defendant's criminal conduct has had upon them. If more than one representative of an injured or deceased person is present in the courtroom at the time of sentencing, the court has discretion to permit one or more of the representatives to present an oral impact statement. A victim and any person making an oral statement shall not be put under oath or subject to cross-examination. The court shall consider any impact statement presented along with all other appropriate factors in determining the sentence of the defendant.

(a-5) A crime victim shall be allowed to present an oral and written victim impact statement at a hearing ordered by the court under the Mental Health and Developmental Disabilities Code to determine if the defendant is: (1) in need of mental health services on an inpatient basis; (2) in need of mental health services on an outpatient basis; or (3) not in need of mental health services. The court shall allow a victim to make an oral impact statement if the victim is present in the courtroom and requests to make an oral statement. An oral statement includes the victim or a representative of the victim reading the written impact statement. The court may allow persons impacted by the crime who are not victims under subsection (a) of Section 3 of this Act, to present an oral or written statement. A victim and any person making an oral statement shall not be put under oath or subject to cross-examination. The court may only consider the impact statement along with all other appropriate factors in determining the: (1) threat of serious physical harm poised by the respondent to himself or herself, or to another person; (2) location of inpatient or outpatient mental health services ordered by the court, but only after complying with all other applicable administrative, rule, and statutory requirements; (3) maximum period of commitment for inpatient mental health services; and (4) conditions of release for outpatient mental health services ordered by the court.

(b) The crime victim has the right to prepare a victim impact statement and present it to the Office of the State's Attorney at any time during the proceedings. Any written victim impact statement submitted to the Office of the State's Attorney shall be considered by the court during its consideration of aggravation and mitigation in plea proceedings under Supreme Court Rule 402.

(c) This Section shall apply to any victims during any dispositional hearing under Section 5-705 of the Juvenile Court Act of 1987 which takes place pursuant to an adjudication or trial or plea of delinquency for any such offense.

(Source: P.A. 99-413, eff. 8-20-15.)

Section 15. The Unified Code of Corrections is amended by changing Sections 5-2-4 and 5-4-1 as follows:

(730 ILCS 5/5-2-4) (from Ch. 38, par. 1005-2-4)

Sec. 5-2-4. Proceedings after acquittal by reason of insanity.

(a) After a finding or verdict of not guilty by reason of insanity under Sections 104-25, 115-3, or 115-4 of the Code of Criminal Procedure of 1963, the defendant shall be ordered to the Department of Human Services for an evaluation as to whether he is in need of mental health services. The order shall specify whether the evaluation shall be conducted on an inpatient or outpatient basis. If the evaluation is to be conducted on an inpatient basis, the defendant shall be placed in a secure setting. With the court order for evaluation shall be sent a copy of the arrest report, criminal charges, arrest record, jail record, any report prepared under Section 115-6 of the Code of Criminal Procedure of 1963, and any victim impact statement prepared under Section 6 of the Rights of Crime Victims and Witnesses Act. The clerk of the circuit court shall transmit this information to the Department within 5 days. If the court orders that the evaluation be done on an inpatient basis, the Department shall evaluate the defendant to determine to which secure facility the defendant shall be transported and, within 20 days of the transmittal by the clerk of the circuit court of the placement court order, notify the sheriff of the designated facility. Upon receipt of that notice, the sheriff shall promptly transport the defendant to the designated facility. During the period of time required to determine the appropriate placement, the defendant shall remain in jail. If, within 20 days of the transmittal by the clerk of the circuit court of the placement court order, the Department fails to notify the sheriff of the identity of the facility to which the defendant shall be transported, the sheriff shall contact a designated person within the Department to inquire about when a placement will become available at the designated facility and bed availability at other facilities. If, within 20 days of the transmittal by the clerk of the circuit court of the placement court order, the Department fails to notify the sheriff of the identity of the facility to which the defendant shall be transported, the sheriff shall notify the Department of its intent to transfer the defendant to the nearest secure mental health facility operated by the Department and inquire as to the status of the placement evaluation and availability for admission to the such facility operated by the Department by contacting a designated person within the Department. The Department shall respond to the sheriff within 2 business days of the notice and inquiry by the sheriff seeking the transfer and the Department shall provide the sheriff with the status of the placement evaluation, information on bed and placement availability, and an estimated date of admission for the defendant and any changes to that estimated date of admission. If the Department notifies the sheriff during the 2 business day period of a facility operated by the Department with placement availability, the sheriff shall promptly transport the defendant to that facility. Individualized placement evaluations by the Department of Human Services determine the most appropriate setting for forensic treatment based upon a number of factors including mental health diagnosis, proximity to surviving victims, security need, age, gender, and proximity to family.

The Department shall provide the Court with a report of its evaluation within 30 days of the date of this order. The Court shall hold a hearing as provided under the Mental Health and Developmental Disabilities Code to determine if the individual is: (a) in need of mental health services on an inpatient basis; (b) in need of mental health services on an outpatient basis; (c) a person not in need of mental health services. The court shall afford the victim the opportunity to make a written or oral statement as guaranteed by Article I, Section 8.1 of the Illinois Constitution and Section 6 of the Rights of Crime Victims and Witnesses Act. The court shall allow a victim to make an oral statement if the victim is present in the courtroom and requests to make an oral statement. An oral statement includes the victim or a representative of the victim reading the written statement. The court may allow persons impacted by the crime who are not victims under subsection (a) of Section 3 of this Rights of Crime Victims and Witnesses Act to present an oral or written statement. A victim and any person making an oral statement shall not be put under oath or subject to cross-examination. The court shall consider any statement presented along with all other appropriate factors in determining the sentence of the defendant or disposition of the juvenile. All statements shall become part of the record of the court. The Court shall enter its findings.

If the defendant is found to be in need of mental health services on an inpatient care basis, the Court shall order the defendant to the Department of Human Services. The defendant shall be placed in a secure setting. Such defendants placed in a secure setting shall not be permitted outside the facility's housing unit unless escorted or accompanied by personnel of the Department of Human Services or with the prior approval of the Court for unsupervised on-grounds privileges as provided herein. Any defendant placed in a secure setting pursuant to this Section, transported to court hearings or other necessary appointments off facility grounds by personnel of the Department of Human Services, shall be placed in security devices or otherwise secured during the period of transportation to assure secure transport of the defendant and the safety of Department of Human Services personnel and others. These security measures shall not constitute restraint as defined in the Mental Health and Developmental Disabilities Code. If the defendant is found to be in need of mental health services, but not on an inpatient care basis, the Court shall conditionally release the defendant, under such conditions as set forth in this Section as will reasonably assure the defendant's satisfactory progress and participation in treatment or rehabilitation and the safety of the defendant, the victim, the victim's family members, and others. If the Court finds the person not in need of mental health services, then the Court shall order the defendant discharged from custody.

(a-1) Definitions. For the purposes of this Section:

(A) (Blank).

(B) "In need of mental health services on an inpatient basis" means: a defendant who has been found not guilty by reason of insanity but who, due to mental illness, is reasonably expected to inflict serious physical harm upon himself or another and who would benefit from inpatient care or is in need of inpatient care.

(C) "In need of mental health services on an outpatient basis" means: a defendant who has been found not guilty by reason of insanity who is not in need of mental health services on an inpatient basis, but is in need of outpatient care, drug and/or alcohol rehabilitation programs, community adjustment programs, individual, group, or family therapy, or chemotherapy.

(D) "Conditional Release" means: the release from either the custody of the Department of Human Services or the custody of the Court of a person who has been found not guilty by reason of insanity under such conditions as the Court may impose which reasonably assure the defendant's satisfactory progress in treatment or habilitation and the safety of the defendant, the victim, the victim's family, and others. The Court shall consider such terms and conditions which may include, but need not be limited to, outpatient care, alcoholic and drug rehabilitation programs, community adjustment programs, individual, group, family, and chemotherapy, random testing to ensure the defendant's timely and continuous taking of any medicines prescribed to control or manage his or her conduct or mental state, and periodic checks with the legal authorities and/or the Department of Human Services. The Court may order as a condition of conditional release that the defendant not contact the victim of the offense that resulted in the finding or verdict of not guilty by reason of insanity or any other person. The Court may order the Department of Human Services to provide care to any person conditionally released under this Section. The Department may contract with any public or private agency in order to discharge any responsibilities imposed under this Section. The Department shall monitor the provision of services to persons conditionally released under this Section and provide periodic reports to the Court concerning the services and the condition of the defendant. Whenever a person is conditionally released pursuant to this Section, the State's Attorney for the county in which the hearing is held shall designate in writing the name, telephone number, and address of a person employed by him or her who shall be notified in the event that either the reporting agency or the Department decides that the conditional release of the defendant should be revoked or modified pursuant to subsection (i) of this Section. Such conditional release shall be for a period of five years. However, the defendant, the person or facility rendering the treatment, therapy, program or outpatient care, the Department, or the State's Attorney may petition the Court for an extension of the conditional release period for an additional 5 years. Upon receipt of such a petition, the Court shall hold a hearing consistent with the provisions of paragraph (a), this paragraph (a-1), and paragraph (f) of this Section, shall determine whether the defendant should continue to be subject to the terms of conditional release, and shall enter an order either extending the defendant's period of conditional release for an additional 5-year 5 year period or discharging the defendant. Additional 5-year periods of conditional release may be ordered following a hearing as provided in this Section. However, in no event shall the defendant's period of conditional release continue beyond the maximum period of commitment ordered by the Court pursuant to paragraph (b) of this Section. These provisions for extension of conditional release shall only apply to defendants conditionally released on or after August 8, 2003. However, the extension provisions of Public Act 83-1449 apply only to defendants charged with a forcible felony.

(E) "Facility director" means the chief officer of a mental health or developmental disabilities facility or his or her designee or the supervisor of a program of treatment or habilitation or his or her designee. "Designee" may include a physician, clinical psychologist, social worker, nurse, or clinical professional counselor.

(b) If the Court finds the defendant in need of mental health services on an inpatient basis, the admission, detention, care, treatment or habilitation, treatment plans, review proceedings, including review of treatment and treatment plans, and discharge of the defendant after such order shall be under the Mental Health and Developmental Disabilities Code, except that the initial order for admission of a defendant acquitted of a felony by reason of insanity shall be for an indefinite period of time. Such period of commitment shall not exceed the maximum length of time that the defendant would have been required to serve, less credit for good behavior as provided in Section 5-4-1 of the Unified Code of Corrections, before becoming eligible for release had he been convicted of and received the maximum sentence for the most serious crime for which he has been acquitted by reason of insanity. The Court shall determine the maximum period of commitment by an appropriate order. During this period of time, the defendant shall not be permitted to be in the community in any manner, including, but not limited to, off-grounds privileges, with or without escort by personnel of the Department of Human Services, unsupervised on-grounds privileges, discharge or conditional or temporary release, except by a plan as provided in this Section. In no event shall a defendant's continued unauthorized absence be a basis for discharge. Not more than 30 days after admission and every 90 days thereafter so long as the initial order remains in effect, the facility director shall file a treatment plan report in writing with the court and forward a copy of the treatment plan report to the clerk of the court, the State's Attorney, and the defendant's attorney, if the defendant is represented by counsel, or to a person authorized by the defendant under the Mental Health and Developmental Disabilities Confidentiality Act to be sent a copy of the report. The report shall include an opinion as to whether the defendant is currently in need of mental health services on an inpatient basis or in need of mental health services on an outpatient basis. The report shall also summarize the basis for those findings and provide a current summary of the following items from the treatment plan: (1) an assessment of the defendant's treatment needs, (2) a description of the services recommended for treatment, (3) the goals of each type of element of service, (4) an anticipated timetable for the accomplishment of the goals, and (5) a designation of the qualified professional responsible for the implementation of the plan. The report may also include unsupervised on-grounds privileges, off-grounds privileges (with or without escort by personnel of the Department of Human Services), home visits and participation in work programs, but only where such privileges have been approved by specific court order, which order may include such conditions on the defendant as the Court may deem appropriate and necessary to reasonably assure the defendant's satisfactory progress in treatment and the safety of the defendant and others.

(c) Every defendant acquitted of a felony by reason of insanity and subsequently found to be in need of mental health services shall be represented by counsel in all proceedings under this Section and under the Mental Health and Developmental Disabilities Code.

(1) The Court shall appoint as counsel the public defender or an attorney licensed by this State.

(2) Upon filing with the Court of a verified statement of legal services rendered by the private attorney appointed pursuant to paragraph (1) of this subsection, the Court shall determine a reasonable fee for such services. If the defendant is unable to pay the fee, the Court shall enter an order upon the State to pay the entire fee or such amount as the defendant is unable to pay from funds appropriated by the General Assembly for that purpose.

(d) When the facility director determines that:

(1) the defendant is no longer in need of mental health services on an inpatient basis; and

(2) the defendant may be conditionally released because he or she is still in need of mental health services or that the defendant may be discharged as not in need of any mental health services; or

(3) (blank);

the facility director shall give written notice to the Court, State's Attorney and defense attorney. Such notice shall set forth in detail the basis for the recommendation of the facility director, and specify clearly the recommendations, if any, of the facility director, concerning conditional release. Any recommendation for conditional release shall include an evaluation of the defendant's need for psychotropic medication, what provisions should be made, if any, to ensure that the defendant will continue to receive psychotropic medication following discharge, and what provisions should be made to assure the safety of the defendant and others in the event the defendant is no longer receiving psychotropic medication. Within 30 days of the notification by the facility director, the Court shall set a hearing and make a finding as to whether the defendant is:

(i) (blank); or

(ii) in need of mental health services in the form of inpatient care; or

(iii) in need of mental health services but not subject to inpatient care; or

(iv) no longer in need of mental health services; or

(v) (blank).

A crime victim shall be allowed to present an oral and written statement. The court shall allow a victim to make an oral statement if the victim is present in the courtroom and requests to make an oral statement. An oral statement includes the victim or a representative of the victim reading the written statement. A victim and any person making an oral statement shall not be put under oath or subject to cross-examination. All statements shall become part of the record of the court.

Upon finding by the Court, the Court shall enter its findings and such appropriate order as provided in subsections (a) and (a-1) of this Section.

(e) A defendant admitted pursuant to this Section, or any person on his behalf, may file a petition for treatment plan review or discharge or conditional release under the standards of this Section in the Court which rendered the verdict. Upon receipt of a petition for treatment plan review or discharge or conditional release, the Court shall set a hearing to be held within 120 days. Thereafter, no new petition may be filed for 180 days without leave of the Court.

(f) The Court shall direct that notice of the time and place of the hearing be served upon the defendant, the facility director, the State's Attorney, and the defendant's attorney. If requested by either the State or the defense or if the Court feels it is appropriate, an impartial examination of the defendant by a psychiatrist or clinical psychologist as defined in Section 1-103 of the Mental Health and Developmental Disabilities Code who is not in the employ of the Department of Human Services shall be ordered, and the report considered at the time of the hearing.

(g) The findings of the Court shall be established by clear and convincing evidence. The burden of proof and the burden of going forth with the evidence rest with the defendant or any person on the defendant's behalf when a hearing is held to review a petition filed by or on behalf of the defendant. The evidence shall be presented in open Court with the right of confrontation and cross-examination. Such evidence may include, but is not limited to:

(1) whether the defendant appreciates the harm caused by the defendant to others and the community by his or her prior conduct that resulted in the finding of not guilty by reason of insanity;

(2) Whether the person appreciates the criminality of conduct similar to the conduct for which he or she was originally charged in this matter;

(3) the current state of the defendant's illness;

(4) what, if any, medications the defendant is taking to control his or her mental illness;

(5) what, if any, adverse physical side effects the medication has on the defendant;

(6) the length of time it would take for the defendant's mental health to deteriorate if the defendant stopped taking prescribed medication;

(7) the defendant's history or potential for alcohol and drug abuse;

(8) the defendant's past criminal history;

(9) any specialized physical or medical needs of the defendant;

(10) any family participation or involvement expected upon release and what is the willingness and ability of the family to participate or be involved;

(11) the defendant's potential to be a danger to himself, herself, or others; and

(11.5) a written or oral statement made by the victim; and

(12) any other factor or factors the Court deems appropriate.

(h) Before the court orders that the defendant be discharged or conditionally released, it shall order the facility director to establish a discharge plan that includes a plan for the defendant's shelter, support, and medication. If appropriate, the court shall order that the facility director establish a program to train the defendant in self-medication under standards established by the Department of Human Services. If the Court finds, consistent with the provisions of this Section, that the defendant is no longer in need of mental health services it shall order the facility director to discharge the defendant. If the Court finds, consistent with the provisions of this Section, that the defendant is in need of mental health services, and no longer in need of inpatient care, it shall order the facility director to release the defendant under such conditions as the Court deems appropriate and as provided by this Section. Such conditional release shall be imposed for a period of 5 years as provided in paragraph (D) of subsection (a-1) and shall be subject to later modification by the Court as provided by this Section. If the Court finds consistent with the provisions in this Section that the defendant is in need of mental health services on an inpatient basis, it shall order the facility director not to discharge or release the defendant in accordance with paragraph (b) of this Section.

(i) If within the period of the defendant's conditional release the State's Attorney determines that the defendant has not fulfilled the conditions of his or her release, the State's Attorney may petition the Court to revoke or modify the conditional release of the defendant. Upon the filing of such petition the defendant may be remanded to the custody of the Department, or to any other mental health facility designated by the Department, pending the resolution of the petition. Nothing in this Section shall prevent the emergency admission of a defendant pursuant to Article VI of Chapter III of the Mental Health and Developmental Disabilities Code or the voluntary admission of the defendant pursuant to Article IV of Chapter III of the Mental Health and Developmental Disabilities Code. If the Court determines, after hearing evidence, that the defendant has not fulfilled the conditions of release, the Court shall order a hearing to be held consistent with the provisions of paragraph (f) and (g) of this Section. At such hearing, if the Court finds that the defendant is in need of mental health services on an inpatient basis, it shall enter an order remanding him or her to the Department of Human Services or other facility. If the defendant is remanded to the Department of Human Services, he or she shall be placed in a secure setting unless the Court determines that there are compelling reasons that such placement is not necessary. If the Court finds that the defendant continues to be in need of mental health services but not on an inpatient basis, it may modify the conditions of the original release in order to reasonably assure the defendant's satisfactory progress in treatment and his or her safety and the safety of others in accordance with the standards established in paragraph (D) of subsection (a-1). Nothing in this Section shall limit a Court's contempt powers or any other powers of a Court.

(j) An order of admission under this Section does not affect the remedy of habeas corpus.

(k) In the event of a conflict between this Section and the Mental Health and Developmental Disabilities Code or the Mental Health and Developmental Disabilities Confidentiality Act, the provisions of this Section shall govern.

(l) Public Act 90-593 This amendatory Act shall apply to all persons who have been found not guilty by reason of insanity and who are presently committed to the Department of Mental Health and Developmental Disabilities (now the Department of Human Services).

(m) The Clerk of the Court shall transmit a certified copy of the order of discharge or conditional release to the Department of Human Services, to the sheriff of the county from which the defendant was admitted, to the Illinois Department of State Police, to the proper law enforcement agency for the municipality where the offense took place, and to the sheriff of the county into which the defendant is conditionally discharged. The Illinois Department of State Police shall maintain a centralized record of discharged or conditionally released defendants while they are under court supervision for access and use of appropriate law enforcement agencies.

(Source: P.A. 100-27, eff. 1-1-18; 100-424, eff. 1-1-18; revised 10-10-17.)

(730 ILCS 5/5-4-1) (from Ch. 38, par. 1005-4-1)

Sec. 5-4-1. Sentencing hearing.

(a) Except when the death penalty is sought under hearing procedures otherwise specified, after a determination of guilt, a hearing shall be held to impose the sentence. However, prior to the imposition of sentence on an individual being sentenced for an offense based upon a charge for a violation of Section 11-501 of the Illinois Vehicle Code or a similar provision of a local ordinance, the individual must undergo a professional evaluation to determine if an alcohol or other drug abuse problem exists and the extent of such a problem. Programs conducting these evaluations shall be licensed by the Department of Human Services. However, if the individual is not a resident of Illinois, the court may, in its discretion, accept an evaluation from a program in the state of such individual's residence. The court may in its sentencing order approve an eligible defendant for placement in a Department of Corrections impact incarceration program as provided in Section 5-8-1.1 or 5-8-1.3. The court may in its sentencing order recommend a defendant for placement in a Department of Corrections substance abuse treatment program as provided in paragraph (a) of subsection (1) of Section 3-2-2 conditioned upon the defendant being accepted in a program by the Department of Corrections. At the hearing the court shall:

(1) consider the evidence, if any, received upon the trial;

(2) consider any presentence reports;

(3) consider the financial impact of incarceration based on the financial impact statement filed with the clerk of the court by the Department of Corrections;

(4) consider evidence and information offered by the parties in aggravation and mitigation;

(4.5) consider substance abuse treatment, eligibility screening, and an assessment, if any, of the defendant by an agent designated by the State of Illinois to provide assessment services for the Illinois courts;

(5) hear arguments as to sentencing alternatives;

(6) afford the defendant the opportunity to make a statement in his own behalf;

(7) afford the victim of a violent crime or a violation of Section 11-501 of the Illinois Vehicle Code, or a similar provision of a local ordinance, the opportunity to present an oral or written statement, as guaranteed by Article I, Section 8.1 of the Illinois Constitution and provided in Section 6 of the Rights of Crime Victims and Witnesses Act. The court shall allow a victim to make an oral statement if the victim is present in the courtroom and requests to make an oral or written statement. An oral or written statement includes the victim or a representative of the victim reading the written statement. The court may allow persons impacted by the crime who are not victims under subsection (a) of Section 3 of the Rights of Crime Victims and Witnesses Act to present an oral or written statement. A victim and any person making an oral statement shall not be put under oath or subject to cross-examination. , or a qualified individual affected by: (i) a violation of Section 405, 405.1, 405.2, or 407 of the Illinois Controlled Substances Act or a violation of Section 55 or Section 65 of the Methamphetamine Control and Community Protection Act, or (ii) a Class 4 felony violation of Section 11-14, 11-14.3 except as described in subdivisions (a)(2)(A) and (a)(2)(B), 11-15, 11-17, 11-18, 11-18.1, or 11-19 of the Criminal Code of 1961 or the Criminal Code of 2012, committed by the defendant the opportunity to make a statement concerning the impact on the victim and to offer evidence in aggravation or mitigation; provided that the statement and evidence offered in aggravation or mitigation must first be prepared in writing in conjunction with the State's Attorney before it may be presented orally at the hearing. Any sworn testimony offered by the victim is subject to the defendant's right to cross-examine. All statements and evidence offered under this paragraph (7) shall become part of the record of the court. In For the purpose of this paragraph (7), "victim of a violent crime" means a person who is a victim of a violent crime for which the defendant has been convicted after a bench or jury trial or a person who is the victim of a violent crime with which the defendant was charged and the defendant has been convicted under a plea agreement of a crime that is not a violent crime as defined in subsection (c) of 3 of the Rights of Crime Victims and Witnesses Act; "qualified individual" means any person who (i) lived or worked within the territorial jurisdiction where the offense took place when the offense took place; and (ii) is familiar with various public places within the territorial jurisdiction where the offense took place when the offense took place. For the purposes of this paragraph (7), "qualified individual" includes any peace officer, or any member of any duly organized State, county, or municipal peace unit assigned to the territorial jurisdiction where the offense took place when the offense took place

(7.5) afford a qualified person affected by: (i) a violation of Section 405, 405.1, 405.2, or 407 of the Illinois Controlled Substances Act or a violation of Section 55 or Section 65 of the Methamphetamine Control and Community Protection Act; or (ii) a Class 4 felony violation of Section 11-14, 11-14.3 except as described in subdivisions (a)(2)(A) and (a)(2)(B), 11-15, 11-17, 11-18, 11-18.1, or 11-19 of the Criminal Code of 1961 or the Criminal Code of 2012, committed by the defendant the opportunity to make a statement concerning the impact on the qualified person and to offer evidence in aggravation or mitigation; provided that the statement and evidence offered in aggravation or mitigation shall first be prepared in writing in conjunction with the State's Attorney before it may be presented orally at the hearing. Sworn testimony offered by the qualified person is subject to the defendant's right to cross-examine. All statements and evidence offered under this paragraph (7.5) shall become part of the record of the court. In this paragraph (7.5), "qualified person" means any person who: (i) lived or worked within the territorial jurisdiction where the offense took place when the offense took place; or (ii) is familiar with various public places within the territorial jurisdiction where the offense took place when the offense took place. "Qualified person includes any peace officer or any member of any duly organized State, county, or municipal peace officer unit assigned to the territorial jurisdiction where the offense took place when the offense took place;

(8) in cases of reckless homicide afford the victim's spouse, guardians, parents or other immediate family members an opportunity to make oral statements;

(9) in cases involving a felony sex offense as defined under the Sex Offender Management Board Act, consider the results of the sex offender evaluation conducted pursuant to Section 5-3-2 of this Act; and

(10) make a finding of whether a motor vehicle was used in the commission of the offense for which the defendant is being sentenced.

(b) All sentences shall be imposed by the judge based upon his independent assessment of the elements specified above and any agreement as to sentence reached by the parties. The judge who presided at the trial or the judge who accepted the plea of guilty shall impose the sentence unless he is no longer sitting as a judge in that court. Where the judge does not impose sentence at the same time on all defendants who are convicted as a result of being involved in the same offense, the defendant or the State's Attorney may advise the sentencing court of the disposition of any other defendants who have been sentenced.

(b-1) In imposing a sentence of imprisonment or periodic imprisonment for a Class 3 or Class 4 felony for which a sentence of probation or conditional discharge is an available sentence, if the defendant has no prior sentence of probation or conditional discharge and no prior conviction for a violent crime, the defendant shall not be sentenced to imprisonment before review and consideration of a presentence report and determination and explanation of why the particular evidence, information, factor in aggravation, factual finding, or other reasons support a sentencing determination that one or more of the factors under subsection (a) of Section 5-6-1 of this Code apply and that probation or conditional discharge is not an appropriate sentence.

(c) In imposing a sentence for a violent crime or for an offense of operating or being in physical control of a vehicle while under the influence of alcohol, any other drug or any combination thereof, or a similar provision of a local ordinance, when such offense resulted in the personal injury to someone other than the defendant, the trial judge shall specify on the record the particular evidence, information, factors in mitigation and aggravation or other reasons that led to his sentencing determination. The full verbatim record of the sentencing hearing shall be filed with the clerk of the court and shall be a public record.

(c-1) In imposing a sentence for the offense of aggravated kidnapping for ransom, home invasion, armed robbery, aggravated vehicular hijacking, aggravated discharge of a firearm, or armed violence with a category I weapon or category II weapon, the trial judge shall make a finding as to whether the conduct leading to conviction for the offense resulted in great bodily harm to a victim, and shall enter that finding and the basis for that finding in the record.

(c-2) If the defendant is sentenced to prison, other than when a sentence of natural life imprisonment or a sentence of death is imposed, at the time the sentence is imposed the judge shall state on the record in open court the approximate period of time the defendant will serve in custody according to the then current statutory rules and regulations for sentence credit found in Section 3-6-3 and other related provisions of this Code. This statement is intended solely to inform the public, has no legal effect on the defendant's actual release, and may not be relied on by the defendant on appeal.

The judge's statement, to be given after pronouncing the sentence, other than when the sentence is imposed for one of the offenses enumerated in paragraph (a)(4) of Section 3-6-3, shall include the following:

"The purpose of this statement is to inform the public of the actual period of time this defendant is likely to spend in prison as a result of this sentence. The actual period of prison time served is determined by the statutes of Illinois as applied to this sentence by the Illinois Department of Corrections and the Illinois Prisoner Review Board. In this case, assuming the defendant receives all of his or her sentence credit, the period of estimated actual custody is ... years and ... months, less up to 180 days additional earned sentence credit. If the defendant, because of his or her own misconduct or failure to comply with the institutional regulations, does not receive those credits, the actual time served in prison will be longer. The defendant may also receive an additional one-half day sentence credit for each day of participation in vocational, industry, substance abuse, and educational programs as provided for by Illinois statute."

When the sentence is imposed for one of the offenses enumerated in paragraph (a)(2) of Section 3-6-3, other than first degree murder, and the offense was committed on or after June 19, 1998, and when the sentence is imposed for reckless homicide as defined in subsection (e) of Section 9-3 of the Criminal Code of 1961 or the Criminal Code of 2012 if the offense was committed on or after January 1, 1999, and when the sentence is imposed for aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof as defined in subparagraph (F) of paragraph (1) of subsection (d) of Section 11-501 of the Illinois Vehicle Code, and when the sentence is imposed for aggravated arson if the offense was committed on or after July 27, 2001 (the effective date of Public Act 92-176), and when the sentence is imposed for aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof as defined in subparagraph (C) of paragraph (1) of subsection (d) of Section 11-501 of the Illinois Vehicle Code committed on or after January 1, 2011 (the effective date of Public Act 96-1230), the judge's statement, to be given after pronouncing the sentence, shall include the following:

"The purpose of this statement is to inform the public of the actual period of time this defendant is likely to spend in prison as a result of this sentence. The actual period of prison time served is determined by the statutes of Illinois as applied to this sentence by the Illinois Department of Corrections and the Illinois Prisoner Review Board. In this case, the defendant is entitled to no more than 4 1/2 days of sentence credit for each month of his or her sentence of imprisonment. Therefore, this defendant will serve at least 85% of his or her sentence. Assuming the defendant receives 4 1/2 days credit for each month of his or her sentence, the period of estimated actual custody is ... years and ... months. If the defendant, because of his or her own misconduct or failure to comply with the institutional regulations receives lesser credit, the actual time served in prison will be longer."

When a sentence of imprisonment is imposed for first degree murder and the offense was committed on or after June 19, 1998, the judge's statement, to be given after pronouncing the sentence, shall include the following:

"The purpose of this statement is to inform the public of the actual period of time this defendant is likely to spend in prison as a result of this sentence. The actual period of prison time served is determined by the statutes of Illinois as applied to this sentence by the Illinois Department of Corrections and the Illinois Prisoner Review Board. In this case, the defendant is not entitled to sentence credit. Therefore, this defendant will serve 100% of his or her sentence."

When the sentencing order recommends placement in a substance abuse program for any offense that results in incarceration in a Department of Corrections facility and the crime was committed on or after September 1, 2003 (the effective date of Public Act 93-354), the judge's statement, in addition to any other judge's statement required under this Section, to be given after pronouncing the sentence, shall include the following:

"The purpose of this statement is to inform the public of the actual period of time this defendant is likely to spend in prison as a result of this sentence. The actual period of prison time served is determined by the statutes of Illinois as applied to this sentence by the Illinois Department of Corrections and the Illinois Prisoner Review Board. In this case, the defendant shall receive no earned sentence credit under clause (3) of subsection (a) of Section 3-6-3 until he or she participates in and completes a substance abuse treatment program or receives a waiver from the Director of Corrections pursuant to clause (4.5) of subsection (a) of Section 3-6-3."

(c-4) Before the sentencing hearing and as part of the presentence investigation under Section 5-3-1, the court shall inquire of the defendant whether the defendant is currently serving in or is a veteran of the Armed Forces of the United States. If the defendant is currently serving in the Armed Forces of the United States or is a veteran of the Armed Forces of the United States and has been diagnosed as having a mental illness by a qualified psychiatrist or clinical psychologist or physician, the court may:

(1) order that the officer preparing the presentence report consult with the United States Department of Veterans Affairs, Illinois Department of Veterans' Affairs, or another agency or person with suitable knowledge or experience for the purpose of providing the court with information regarding treatment options available to the defendant, including federal, State, and local programming; and

(2) consider the treatment recommendations of any diagnosing or treating mental health professionals together with the treatment options available to the defendant in imposing sentence.

For the purposes of this subsection (c-4), "qualified psychiatrist" means a reputable physician licensed in Illinois to practice medicine in all its branches, who has specialized in the diagnosis and treatment of mental and nervous disorders for a period of not less than 5 years.

(c-6) In imposing a sentence, the trial judge shall specify, on the record, the particular evidence and other reasons which led to his or her determination that a motor vehicle was used in the commission of the offense.

(d) When the defendant is committed to the Department of Corrections, the State's Attorney shall and counsel for the defendant may file a statement with the clerk of the court to be transmitted to the department, agency or institution to which the defendant is committed to furnish such department, agency or institution with the facts and circumstances of the offense for which the person was committed together with all other factual information accessible to them in regard to the person prior to his commitment relative to his habits, associates, disposition and reputation and any other facts and circumstances which may aid such department, agency or institution during its custody of such person. The clerk shall within 10 days after receiving any such statements transmit a copy to such department, agency or institution and a copy to the other party, provided, however, that this shall not be cause for delay in conveying the person to the department, agency or institution to which he has been committed.

(e) The clerk of the court shall transmit to the department, agency or institution, if any, to which the defendant is committed, the following:

(1) the sentence imposed;

(2) any statement by the court of the basis for imposing the sentence;

(3) any presentence reports;

(3.5) any sex offender evaluations;

(3.6) any substance abuse treatment eligibility screening and assessment of the defendant by an agent designated by the State of Illinois to provide assessment services for the Illinois courts;

(4) the number of days, if any, which the defendant has been in custody and for which he is entitled to credit against the sentence, which information shall be provided to the clerk by the sheriff;

(4.1) any finding of great bodily harm made by the court with respect to an offense enumerated in subsection (c-1);

(5) all statements filed under subsection (d) of this Section;

(6) any medical or mental health records or summaries of the defendant;

(7) the municipality where the arrest of the offender or the commission of the offense has occurred, where such municipality has a population of more than 25,000 persons;

(8) all statements made and evidence offered under paragraph (7) of subsection (a) of this Section; and

(9) all additional matters which the court directs the clerk to transmit.

(f) In cases in which the court finds that a motor vehicle was used in the commission of the offense for which the defendant is being sentenced, the clerk of the court shall, within 5 days thereafter, forward a report of such conviction to the Secretary of State.

(Source: P.A. 99-861, eff. 1-1-17; 99-938, eff. 1-1-18.)