101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB0179

 

Introduced , by Rep. Mary E. Flowers

 

SYNOPSIS AS INTRODUCED:
 
See Index

    Amends the Code of Civil Procedure. Provides that any person criminally prosecuted and incarcerated for 30 days or longer prior to trial for one or more felonies by the State which he or she did not commit may file a petition for a certificate of innocence. Provides that the petitioner must prove that: the petitioner was incarcerated prior to trial in a prosecution which resulted in an acquittal or dismissal; the prosecution did not result in a conviction of a lesser included offense; the petitioner is innocent of the charges on which the petitioner's pretrial detention was based, or the charges did not constitute a felony or misdemeanor; and the petitioner did not by his or her own conduct voluntarily cause or bring about the charges which resulted in his or her pretrial incarceration. Amends the Court of Claims Act. Provides that a person who has been issued a certificate of innocence may file a claim against the State for time unjustly served in pretrial incarceration in a county jail. Provides that the Court of Claims shall award $50,000 per year during which the person was wrongfully imprisoned and shall prorate that amount for a fraction of a year that the person was wrongfully imprisoned (rather than "the amount of the award is at the discretion of the court; and provided, the court shall make no award in excess of the following amounts: for imprisonment of 5 years or less, not more than $85,350; for imprisonment of 14 years or less but over 5 years, not more than $170,000; for imprisonment of over 14 years, not more than $199,150"). Provides that the court shall include the number of years the person was imprisoned awaiting trial in its determination and an additional $25,000 for each year served on parole, probation, or registered as a sex offender after imprisonment. Makes corresponding changes. Effective immediately.


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FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

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1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Court of Claims Act is amended by changing
5Sections 8 and 11 as follows:
 
6    (705 ILCS 505/8)   (from Ch. 37, par. 439.8)
7    Sec. 8. Court of Claims jurisdiction; deliberation
8periods. The court shall have exclusive jurisdiction to hear
9and determine the following matters:
10    (a) All claims against the State founded upon any law of
11the State of Illinois or upon any regulation adopted thereunder
12by an executive or administrative officer or agency; provided,
13however, the court shall not have jurisdiction (i) to hear or
14determine claims arising under the Workers' Compensation Act or
15the Workers' Occupational Diseases Act, or claims for expenses
16in civil litigation, or (ii) to review administrative decisions
17for which a statute provides that review shall be in the
18circuit or appellate court.
19    (b) All claims against the State founded upon any contract
20entered into with the State of Illinois.
21    (c) All claims against the State for time unjustly served
22in prisons of this State or in a county jail when the person
23imprisoned received a pardon from the governor stating that

 

 

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1such pardon is issued on the ground of innocence of the crime
2for which he or she was imprisoned or he or she received a
3certificate of innocence from the Circuit Court as provided in
4Section 2-702 of the Code of Civil Procedure. The court shall
5make an award of $50,000 per year during which the person was
6wrongfully imprisoned and shall prorate that amount for a
7fraction of a year that the person was wrongfully imprisoned.
8The court shall fix attorney's fees not to exceed 25% of the
9award granted. The court shall include the number of years the
10person was imprisoned awaiting trial in its determination of
11the award. The court shall include an additional $25,000 for
12each year served on parole, probation, or registered as a sex
13offender after imprisonment. The ; provided, the amount of the
14award is at the discretion of the court; and provided, the
15court shall make no award in excess of the following amounts:
16for imprisonment of 5 years or less, not more than $85,350; for
17imprisonment of 14 years or less but over 5 years, not more
18than $170,000; for imprisonment of over 14 years, not more than
19$199,150; and provided further, the court shall fix attorney's
20fees not to exceed 25% of the award granted. On or after the
21effective date of this amendatory Act of the 95th General
22Assembly, the court shall annually adjust the maximum awards
23authorized by this subsection (c) to reflect the increase, if
24any, in the Consumer Price Index For All Urban Consumers for
25the previous calendar year, as determined by the United States
26Department of Labor, except that no annual increment may exceed

 

 

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15%. For the annual adjustments, if the Consumer Price Index
2decreases during a calendar year, there shall be no adjustment
3for that calendar year. The transmission by the Prisoner Review
4Board or the clerk of the circuit court of the information
5described in Section 11(b) to the clerk of the Court of Claims
6is conclusive evidence of the validity of the claim. The
7changes made by Public Act 95-970 this amendatory Act of the
895th General Assembly apply to all claims pending on or filed
9on or after September 22, 2008 (the effective date of Public
10Act 95-970). The changes made by this amendatory Act of the
11101st General Assembly apply to all claims pending or filed on
12or after the effective date of this amendatory Act of the 101st
13General Assembly.
14    (d) All claims against the State for damages in cases
15sounding in tort, if a like cause of action would lie against a
16private person or corporation in a civil suit, and all like
17claims sounding in tort against the Medical Center Commission,
18the Board of Trustees of the University of Illinois, the Board
19of Trustees of Southern Illinois University, the Board of
20Trustees of Chicago State University, the Board of Trustees of
21Eastern Illinois University, the Board of Trustees of Governors
22State University, the Board of Trustees of Illinois State
23University, the Board of Trustees of Northeastern Illinois
24University, the Board of Trustees of Northern Illinois
25University, the Board of Trustees of Western Illinois
26University, or the Board of Trustees of the Illinois

 

 

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1Mathematics and Science Academy; provided, that an award for
2damages in a case sounding in tort, other than certain cases
3involving the operation of a State vehicle described in this
4paragraph, shall not exceed the sum of $100,000 to or for the
5benefit of any claimant. The $100,000 limit prescribed by this
6Section does not apply to an award of damages in any case
7sounding in tort arising out of the operation by a State
8employee of a vehicle owned, leased or controlled by the State.
9The defense that the State or the Medical Center Commission or
10the Board of Trustees of the University of Illinois, the Board
11of Trustees of Southern Illinois University, the Board of
12Trustees of Chicago State University, the Board of Trustees of
13Eastern Illinois University, the Board of Trustees of Governors
14State University, the Board of Trustees of Illinois State
15University, the Board of Trustees of Northeastern Illinois
16University, the Board of Trustees of Northern Illinois
17University, the Board of Trustees of Western Illinois
18University, or the Board of Trustees of the Illinois
19Mathematics and Science Academy is not liable for the
20negligence of its officers, agents, and employees in the course
21of their employment is not applicable to the hearing and
22determination of such claims.
23    (e) All claims for recoupment made by the State of Illinois
24against any claimant.
25    (f) All claims pursuant to the Line of Duty Compensation
26Act. A claim under that Act must be heard and determined within

 

 

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1one year after the application for that claim is filed with the
2Court as provided in that Act.
3    (g) All claims filed pursuant to the Crime Victims
4Compensation Act.
5    (h) All claims pursuant to the Illinois National
6Guardsman's Compensation Act. A claim under that Act must be
7heard and determined within one year after the application for
8that claim is filed with the Court as provided in that Act.
9    (i) All claims authorized by subsection (a) of Section
1010-55 of the Illinois Administrative Procedure Act for the
11expenses incurred by a party in a contested case on the
12administrative level.
13(Source: P.A. 95-970, eff. 9-22-08; 96-80, eff. 7-27-09.)
 
14    (705 ILCS 505/11)  (from Ch. 37, par. 439.11)
15    Sec. 11. Filing claims.
16    (a) Except as otherwise provided in subsection (b) of this
17Section and subsection (4) of Section 24, the claimant shall in
18all cases set forth fully in his petition the claim, the action
19thereon, if any, on behalf of the State, what persons are
20owners thereof or interested therein, when and upon what
21consideration such persons became so interested; that no
22assignment or transfer of the claim or any part thereof or
23interest therein has been made, except as stated in the
24petition; that the claimant is justly entitled to the amount
25therein claimed from the State of Illinois, after allowing all

 

 

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1just credits; and that claimant believes the facts stated in
2the petition to be true. The petition shall be verified, as to
3statements of facts, by the affidavit of the claimant, his
4agent, or attorney.
5    (b) Whenever a person has served a term of imprisonment and
6has received a pardon by the Governor stating that such pardon
7was issued on the ground of innocence of the crime for which he
8or she was imprisoned, the Prisoner Review Board shall transmit
9this information to the clerk of the Court of Claims, together
10with the claimant's current address. Whenever a person has
11served a term of imprisonment or has been incarcerated as a
12pretrial detainee and has received a certificate of innocence
13from the Circuit Court as provided in Section 2-702 of the Code
14of Civil Procedure, the clerk of the issuing Circuit Court
15shall transmit this information to the clerk of the Court of
16Claims, together with the claimant's current address. The clerk
17of the Court of Claims shall immediately docket the case for
18consideration by the Court of Claims, and shall provide notice
19to the claimant of such docketing together with all hearing
20dates and applicable deadlines. The Court of Claims shall hear
21the case and render a decision within 90 days after its
22docketing.
23(Source: P.A. 95-970, eff. 9-22-08; 96-328, eff. 8-11-09.)
 
24    Section 10. The Code of Civil Procedure is amended by
25changing Section 2-702 as follows:
 

 

 

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1    (735 ILCS 5/2-702)
2    Sec. 2-702. Petition for a certificate of innocence that
3the petitioner was innocent of all offenses for which he or she
4was incarcerated.
5    (a) The General Assembly finds and declares that innocent
6persons who have been wrongly charged with or convicted of
7crimes in Illinois and subsequently have been incarcerated
8prior to trial or imprisoned have been frustrated in seeking
9legal redress due to a variety of substantive and technical
10obstacles in the law and that such persons should have an
11available avenue to obtain a finding of innocence so that they
12may obtain relief through a petition in the Court of Claims.
13The General Assembly further finds misleading the current legal
14nomenclature which compels an innocent person to seek a pardon
15for being wrongfully incarcerated. It is the intent of the
16General Assembly that the court, in exercising its discretion
17as permitted by law regarding the weight and admissibility of
18evidence submitted pursuant to this Section, shall, in the
19interest of justice, give due consideration to difficulties of
20proof caused by the passage of time, the death or
21unavailability of witnesses, the destruction of evidence or
22other factors not caused by such persons or those acting on
23their behalf.
24    (b) Any person criminally prosecuted and incarcerated
25prior to trial or convicted and subsequently imprisoned for one

 

 

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1or more felonies by the State of Illinois which he or she did
2not commit may, under the conditions hereinafter provided, file
3a petition for certificate of innocence in the circuit court of
4the county in which the person was convicted or incarcerated
5prior to trial. The petition shall request a certificate of
6innocence finding that the petitioner was innocent of all
7offenses for which he or she was incarcerated.
8    (c) In order to present the claim for certificate of
9innocence of an unjust conviction and imprisonment or pretrial
10incarceration, the petitioner must attach to his or her
11petition documentation demonstrating that:
12        (1) he or she has been convicted of one or more
13    felonies by the State of Illinois and subsequently
14    sentenced to a term of imprisonment, and has served all or
15    any part of the sentence, or he or she was incarcerated
16    prior to trial for 30 days or longer and the case resulted
17    in a dismissal or acquittal of the charge or charges, but
18    did not result in a conviction for a lesser included
19    offense; and
20        (2) if convicted, his or her judgment of conviction was
21    reversed or vacated, and the indictment or information
22    dismissed or, if a new trial was ordered, either he or she
23    was found not guilty at the new trial or he or she was not
24    retried and the indictment or information dismissed; or the
25    statute, or application thereof, on which the indictment or
26    information was based violated the Constitution of the

 

 

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1    United States or the State of Illinois; and
2        (3) his or her claim is not time barred by the
3    provisions of subsection (i) of this Section.
4    (d) The petition shall state facts in sufficient detail to
5permit the court to find that the petitioner is likely to
6succeed at trial in proving that the petitioner is innocent of
7the offenses charged in the indictment or information or his or
8her acts or omissions charged in the indictment or information
9did not constitute a felony or misdemeanor against the State of
10Illinois, and the petitioner did not by his or her own conduct
11voluntarily cause or bring about his or her conviction. The
12petition shall be verified by the petitioner.
13    (e) A copy of the petition shall be served on the Attorney
14General and the State's Attorney of the county where the
15conviction was had. The Attorney General and the State's
16Attorney of the county where the conviction was had shall have
17the right to intervene as parties.
18    (f) In any hearing seeking a certificate of innocence, the
19court may take judicial notice of prior sworn testimony or
20evidence admitted in the criminal proceedings related to the
21charges or convictions which resulted in the alleged wrongful
22incarceration, if the petitioner was either represented by
23counsel at such prior proceedings or the right to counsel was
24knowingly waived.
25    (g) If the petitioner was imprisoned because of a
26conviction, in In order to obtain a certificate of innocence

 

 

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1the petitioner must prove by a preponderance of evidence that:
2        (1) the petitioner was convicted of one or more
3    felonies by the State of Illinois and subsequently
4    sentenced to a term of imprisonment, and has served all or
5    any part of the sentence;
6        (2)(A) the judgment of conviction was reversed or
7    vacated, and the indictment or information dismissed or, if
8    a new trial was ordered, either the petitioner was found
9    not guilty at the new trial or the petitioner was not
10    retried and the indictment or information dismissed; or (B)
11    the statute, or application thereof, on which the
12    indictment or information was based violated the
13    Constitution of the United States or the State of Illinois;
14        (3) the petitioner is innocent of the offenses charged
15    in the indictment or information or his or her acts or
16    omissions charged in the indictment or information did not
17    constitute a felony or misdemeanor against the State; and
18        (4) the petitioner did not by his or her own conduct
19    voluntarily cause or bring about his or her conviction.
20    (g-5) If the petitioner was incarcerated prior to trial for
2130 days or longer but not convicted of any of the charged
22offenses or a lesser included offense, in order to obtain a
23certificate of innocence the petitioner must prove by a
24preponderance of evidence that:
25        (1) the petitioner was incarcerated prior to trial for
26    30 days or longer in a prosecution which resulted in an

 

 

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1    acquittal or dismissal;
2        (2) the prosecution did not result in a conviction of a
3    lesser included offense;
4        (3) the petitioner is innocent of the charges on which
5    the petitioner's pretrial detention was based, or the
6    charges did not constitute a felony or misdemeanor; and
7        (4) the petitioner did not by his or her own conduct
8    voluntarily cause or bring about the charges which resulted
9    in his or her pretrial incarceration.
10    (h) If the court finds that the petitioner is entitled to a
11judgment, it shall enter a certificate of innocence finding
12that the petitioner was innocent of all offenses for which he
13or she was incarcerated. Upon entry of the certificate of
14innocence or pardon from the Governor stating that such pardon
15was issued on the ground of innocence of the crime for which he
16or she was incarcerated prior to trial or imprisoned, (1) the
17clerk of the court shall transmit a copy of the certificate of
18innocence to the clerk of the Court of Claims, together with
19the claimant's current address; and (2) the court shall enter
20an order expunging the record of arrest from the official
21records of the arresting authority and order that the records
22of the clerk of the circuit court and Department of State
23Police be sealed until further order of the court upon good
24cause shown or as otherwise provided herein, and the name of
25the defendant obliterated from the official index requested to
26be kept by the circuit court clerk under Section 16 of the

 

 

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1Clerks of Courts Act in connection with the arrest and
2conviction for the offense but the order shall not affect any
3index issued by the circuit court clerk before the entry of the
4order. The court shall enter the expungement order regardless
5of whether the petitioner has prior criminal convictions.
6    All records sealed by the Department of State Police may be
7disseminated by the Department only as required by law or to
8the arresting authority, the State's Attorney, the court upon a
9later arrest for the same or similar offense, or for the
10purpose of sentencing for any subsequent felony. Upon
11conviction for any subsequent offense, the Department of
12Corrections shall have access to all sealed records of the
13Department pertaining to that individual.
14    Upon entry of the order of expungement, the clerk of the
15circuit court shall promptly mail a copy of the order to the
16person whose records were expunged and sealed.
17    (i) Any person seeking a certificate of innocence under
18this Section based on the dismissal of an indictment or
19information or acquittal that occurred before September 22,
202008 (the effective date of Public Act 95-970) this amendatory
21Act of the 95th General Assembly shall file his or her petition
22within 2 years after September 22, 2008 the effective date of
23this amendatory Act of the 95th General Assembly. Any person
24seeking a certificate of innocence under this Section based on
25the dismissal of an indictment or information or acquittal that
26occurred on or after September 22, 2008 the effective date of

 

 

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1this amendatory Act of the 95th General Assembly shall file his
2or her petition within 2 years after the dismissal.
3    (j) The decision to grant or deny a certificate of
4innocence shall be binding only with respect to claims filed in
5the Court of Claims and shall not have a res judicata effect on
6any other proceedings.
7(Source: P.A. 98-133, eff. 1-1-14.)
 
8    Section 99. Effective date. This Act takes effect upon
9becoming law.

 

 

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1 INDEX
2 Statutes amended in order of appearance
3    705 ILCS 505/8from Ch. 37, par. 439.8
4    705 ILCS 505/11from Ch. 37, par. 439.11
5    735 ILCS 5/2-702