Homeland Security & Emergency Preparedness Committee

Adopted in House Comm. on Apr 30, 2008

 

 


 

 


 
09500HB5756ham002 LRB095 14924 RLC 49409 a

1
AMENDMENT TO HOUSE BILL 5756

2     AMENDMENT NO. ______. Amend House Bill 5756, AS AMENDED, by
3 replacing everything after the enacting clause with the
4 following:
 
5     "Section 5. The Unified Code of Corrections is amended by
6 changing Section 5-4-1 as follows:
 
7     (730 ILCS 5/5-4-1)  (from Ch. 38, par. 1005-4-1)
8     Sec. 5-4-1. Sentencing Hearing.
9     (a) Except when the death penalty is sought under hearing
10 procedures otherwise specified, after a determination of
11 guilt, a hearing shall be held to impose the sentence. However,
12 prior to the imposition of sentence on an individual being
13 sentenced for an offense based upon a charge for a violation of
14 Section 11-501 of the Illinois Vehicle Code or a similar
15 provision of a local ordinance, the individual must undergo a
16 professional evaluation to determine if an alcohol or other

 

 

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1 drug abuse problem exists and the extent of such a problem.
2 Programs conducting these evaluations shall be licensed by the
3 Department of Human Services. However, if the individual is not
4 a resident of Illinois, the court may, in its discretion,
5 accept an evaluation from a program in the state of such
6 individual's residence. The court may in its sentencing order
7 approve an eligible defendant for placement in a Department of
8 Corrections impact incarceration program as provided in
9 Section 5-8-1.1 or 5-8-1.3. The court may in its sentencing
10 order recommend a defendant for placement in a Department of
11 Corrections substance abuse treatment program as provided in
12 paragraph (a) of subsection (1) of Section 3-2-2 conditioned
13 upon the defendant being accepted in a program by the
14 Department of Corrections. At the hearing the court shall:
15         (1) consider the evidence, if any, received upon the
16     trial;
17         (2) consider any presentence reports;
18         (3) consider the financial impact of incarceration
19     based on the financial impact statement filed with the
20     clerk of the court by the Department of Corrections;
21         (4) consider evidence and information offered by the
22     parties in aggravation and mitigation;
23         (4.5) consider substance abuse treatment, eligibility
24     screening, and an assessment, if any, of the defendant by
25     an agent designated by the State of Illinois to provide
26     assessment services for the Illinois courts;

 

 

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1         (5) hear arguments as to sentencing alternatives;
2         (6) afford the defendant the opportunity to make a
3     statement in his own behalf;
4         (7) afford the victim of a violent crime or a violation
5     of Section 11-501 of the Illinois Vehicle Code, or a
6     similar provision of a local ordinance, or a qualified
7     individual affected by: (i) a violation of Section 405,
8     405.1, 405.2, or 407 of the Illinois Controlled Substances
9     Act or a violation of Section 55 or Section 65 of the
10     Methamphetamine Control and Community Protection Act, or
11     (ii) a Class 4 felony violation of Section 11-14, 11-15,
12     11-17, 11-18, 11-18.1, or 11-19 of the Criminal Code of
13     1961, committed by the defendant the opportunity to make a
14     statement concerning the impact on the victim and to offer
15     evidence in aggravation or mitigation; provided that the
16     statement and evidence offered in aggravation or
17     mitigation must first be prepared in writing in conjunction
18     with the State's Attorney before it may be presented orally
19     at the hearing. Any sworn testimony offered by the victim
20     is subject to the defendant's right to cross-examine. All
21     statements and evidence offered under this paragraph (7)
22     shall become part of the record of the court. For the
23     purpose of this paragraph (7), "qualified individual"
24     means any person who (i) lived or worked within the
25     territorial jurisdiction where the offense took place when
26     the offense took place; and (ii) is familiar with various

 

 

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1     public places within the territorial jurisdiction where
2     the offense took place when the offense took place. For the
3     purposes of this paragraph (7), "qualified individual"
4     includes any peace officer, or any member of any duly
5     organized State, county, or municipal peace unit assigned
6     to the territorial jurisdiction where the offense took
7     place when the offense took place;
8         (8) in cases of reckless homicide afford the victim's
9     spouse, guardians, parents or other immediate family
10     members an opportunity to make oral statements; and
11         (9) in cases involving a felony sex offense as defined
12     under the Sex Offender Management Board Act, consider the
13     results of the sex offender evaluation conducted pursuant
14     to Section 5-3-2 of this Act.
15     (b) All sentences shall be imposed by the judge based upon
16 his independent assessment of the elements specified above and
17 any agreement as to sentence reached by the parties. The judge
18 who presided at the trial or the judge who accepted the plea of
19 guilty shall impose the sentence unless he is no longer sitting
20 as a judge in that court. Where the judge does not impose
21 sentence at the same time on all defendants who are convicted
22 as a result of being involved in the same offense, the
23 defendant or the State's Attorney may advise the sentencing
24 court of the disposition of any other defendants who have been
25 sentenced.
26     (c) In imposing a sentence for a violent crime or for an

 

 

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1 offense of operating or being in physical control of a vehicle
2 while under the influence of alcohol, any other drug or any
3 combination thereof, or a similar provision of a local
4 ordinance, when such offense resulted in the personal injury to
5 someone other than the defendant, the trial judge shall specify
6 on the record the particular evidence, information, factors in
7 mitigation and aggravation or other reasons that led to his
8 sentencing determination. The full verbatim record of the
9 sentencing hearing shall be filed with the clerk of the court
10 and shall be a public record.
11     (c-1) In imposing a sentence for the offense of aggravated
12 kidnapping for ransom, home invasion, armed robbery,
13 aggravated vehicular hijacking, aggravated discharge of a
14 firearm, or armed violence with a category I weapon or category
15 II weapon, the trial judge shall make a finding as to whether
16 the conduct leading to conviction for the offense resulted in
17 great bodily harm to a victim, and shall enter that finding and
18 the basis for that finding in the record.
19     (c-2) If the defendant is sentenced to prison, other than
20 when a sentence of natural life imprisonment or a sentence of
21 death is imposed, at the time the sentence is imposed the judge
22 shall state on the record in open court the approximate period
23 of time the defendant will serve in custody according to the
24 then current statutory rules and regulations for early release
25 found in Section 3-6-3 and other related provisions of this
26 Code. This statement is intended solely to inform the public,

 

 

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1 has no legal effect on the defendant's actual release, and may
2 not be relied on by the defendant on appeal.
3     The judge's statement, to be given after pronouncing the
4 sentence, other than when the sentence is imposed for one of
5 the offenses enumerated in paragraph (a)(3) of Section 3-6-3,
6 shall include the following:
7     "The purpose of this statement is to inform the public of
8 the actual period of time this defendant is likely to spend in
9 prison as a result of this sentence. The actual period of
10 prison time served is determined by the statutes of Illinois as
11 applied to this sentence by the Illinois Department of
12 Corrections and the Illinois Prisoner Review Board. In this
13 case, assuming the defendant receives all of his or her good
14 conduct credit, the period of estimated actual custody is ...
15 years and ... months, less up to 180 days additional good
16 conduct credit for meritorious service. If the defendant,
17 because of his or her own misconduct or failure to comply with
18 the institutional regulations, does not receive those credits,
19 the actual time served in prison will be longer. The defendant
20 may also receive an additional one-half day good conduct credit
21 for each day of participation in vocational, industry,
22 substance abuse, and educational programs as provided for by
23 Illinois statute."
24     When the sentence is imposed for one of the offenses
25 enumerated in paragraph (a)(3) of Section 3-6-3, other than
26 when the sentence is imposed for one of the offenses enumerated

 

 

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1 in paragraph (a)(2) of Section 3-6-3 committed on or after June
2 19, 1998, and other than when the sentence is imposed for
3 reckless homicide as defined in subsection (e) of Section 9-3
4 of the Criminal Code of 1961 if the offense was committed on or
5 after January 1, 1999, and other than when the sentence is
6 imposed for aggravated arson if the offense was committed on or
7 after July 27, 2001 (the effective date of Public Act 92-176),
8 the judge's statement, to be given after pronouncing the
9 sentence, shall include the following:
10     "The purpose of this statement is to inform the public of
11 the actual period of time this defendant is likely to spend in
12 prison as a result of this sentence. The actual period of
13 prison time served is determined by the statutes of Illinois as
14 applied to this sentence by the Illinois Department of
15 Corrections and the Illinois Prisoner Review Board. In this
16 case, assuming the defendant receives all of his or her good
17 conduct credit, the period of estimated actual custody is ...
18 years and ... months, less up to 90 days additional good
19 conduct credit for meritorious service. If the defendant,
20 because of his or her own misconduct or failure to comply with
21 the institutional regulations, does not receive those credits,
22 the actual time served in prison will be longer. The defendant
23 may also receive an additional one-half day good conduct credit
24 for each day of participation in vocational, industry,
25 substance abuse, and educational programs as provided for by
26 Illinois statute."

 

 

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1     When the sentence is imposed for one of the offenses
2 enumerated in paragraph (a)(2) of Section 3-6-3, other than
3 first degree murder, and the offense was committed on or after
4 June 19, 1998, and when the sentence is imposed for reckless
5 homicide as defined in subsection (e) of Section 9-3 of the
6 Criminal Code of 1961 if the offense was committed on or after
7 January 1, 1999, and when the sentence is imposed for
8 aggravated driving under the influence of alcohol, other drug
9 or drugs, or intoxicating compound or compounds, or any
10 combination thereof as defined in subparagraph (F) of paragraph
11 (1) of subsection (d) of Section 11-501 of the Illinois Vehicle
12 Code, and when the sentence is imposed for aggravated arson if
13 the offense was committed on or after July 27, 2001 (the
14 effective date of Public Act 92-176), the judge's statement, to
15 be given after pronouncing the sentence, shall include the
16 following:
17     "The purpose of this statement is to inform the public of
18 the actual period of time this defendant is likely to spend in
19 prison as a result of this sentence. The actual period of
20 prison time served is determined by the statutes of Illinois as
21 applied to this sentence by the Illinois Department of
22 Corrections and the Illinois Prisoner Review Board. In this
23 case, the defendant is entitled to no more than 4 1/2 days of
24 good conduct credit for each month of his or her sentence of
25 imprisonment. Therefore, this defendant will serve at least 85%
26 of his or her sentence. Assuming the defendant receives 4 1/2

 

 

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1 days credit for each month of his or her sentence, the period
2 of estimated actual custody is ... years and ... months. If the
3 defendant, because of his or her own misconduct or failure to
4 comply with the institutional regulations receives lesser
5 credit, the actual time served in prison will be longer."
6     When a sentence of imprisonment is imposed for first degree
7 murder and the offense was committed on or after June 19, 1998,
8 the judge's statement, to be given after pronouncing the
9 sentence, shall include the following:
10     "The purpose of this statement is to inform the public of
11 the actual period of time this defendant is likely to spend in
12 prison as a result of this sentence. The actual period of
13 prison time served is determined by the statutes of Illinois as
14 applied to this sentence by the Illinois Department of
15 Corrections and the Illinois Prisoner Review Board. In this
16 case, the defendant is not entitled to good conduct credit.
17 Therefore, this defendant will serve 100% of his or her
18 sentence."
19     When the sentencing order recommends placement in a
20 substance abuse program for any offense that results in
21 incarceration in a Department of Corrections facility and the
22 crime was committed on or after September 1, 2003 (the
23 effective date of Public Act 93-354), the judge's statement, in
24 addition to any other judge's statement required under this
25 Section, to be given after pronouncing the sentence, shall
26 include the following:

 

 

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1     "The purpose of this statement is to inform the public of
2 the actual period of time this defendant is likely to spend in
3 prison as a result of this sentence. The actual period of
4 prison time served is determined by the statutes of Illinois as
5 applied to this sentence by the Illinois Department of
6 Corrections and the Illinois Prisoner Review Board. In this
7 case, the defendant shall receive no good conduct credit under
8 clause (3) of subsection (a) of Section 3-6-3 until he or she
9 participates in and completes a substance abuse treatment
10 program or receives a waiver from the Director of Corrections
11 pursuant to clause (4.5) of subsection (a) of Section 3-6-3."
12     (d) When the defendant is committed to the Department of
13 Corrections, the State's Attorney shall and counsel for the
14 defendant may file a statement with the clerk of the court to
15 be transmitted to the department, agency or institution to
16 which the defendant is committed to furnish such department,
17 agency or institution with the facts and circumstances of the
18 offense for which the person was committed together with all
19 other factual information accessible to them in regard to the
20 person prior to his commitment relative to his habits,
21 associates, disposition and reputation and any other facts and
22 circumstances which may aid such department, agency or
23 institution during its custody of such person. The clerk shall
24 within 10 days after receiving any such statements transmit a
25 copy to such department, agency or institution and a copy to
26 the other party, provided, however, that this shall not be

 

 

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1 cause for delay in conveying the person to the department,
2 agency or institution to which he has been committed.
3     (e) The clerk of the court shall transmit to the
4 department, agency or institution, if any, to which the
5 defendant is committed, the following:
6         (1) the sentence imposed;
7         (2) any statement by the court of the basis for
8     imposing the sentence;
9         (3) any presentence reports;
10         (3.5) any sex offender evaluations;
11         (3.6) any substance abuse treatment eligibility
12     screening and assessment of the defendant by an agent
13     designated by the State of Illinois to provide assessment
14     services for the Illinois courts;
15         (4) the number of days, if any, which the defendant has
16     been in custody and for which he is entitled to credit
17     against the sentence, which information shall be provided
18     to the clerk by the sheriff;
19         (4.1) any finding of great bodily harm made by the
20     court with respect to an offense enumerated in subsection
21     (c-1);
22         (5) all statements filed under subsection (d) of this
23     Section;
24         (6) any medical or mental health records or summaries
25     of the defendant;
26         (7) the municipality where the arrest of the offender

 

 

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1     or the commission of the offense has occurred, where such
2     municipality has a population of more than 25,000 persons;
3         (8) all statements made and evidence offered under
4     paragraph (7) of subsection (a) of this Section; and
5         (9) all additional matters which the court directs the
6     clerk to transmit; .
7         (10) the defendant's immigration status as declared by
8     the defendant in conjunction with the advisement issued by
9     the court pursuant to Section 113-8 of the Code of Criminal
10     Procedure of 1963; and
11         (11) the defendant's immigration status as declared by
12     the defendant in conjunction with advisement issued by the
13     court at the sentencing hearing conducted pursuant to this
14     Section.
15     (f) At the sentencing hearing for a conviction or plea of
16 guilty to a misdemeanor or felony offense, the court shall give
17 the following advisement to the defendant in open court: "If
18 you are not a citizen of the United States, you are hereby
19 advised that your conviction for the offense for which you have
20 been found guilty or entered a plea of guilty may have
21 consequences of deportation, exclusion from admission to the
22 United States, or denial of naturalization under the laws of
23 the United States."
24     (g) The Illinois Department of Corrections shall submit
25 information it receives pursuant to paragraphs (10) and (11) of
26 subsection (e) for all defendants committed to a Department of

 

 

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1 Corrections facility to the U.S. Department of Immigration
2 Customs Enforcement.
3     (h) Notwithstanding any other rulemaking authority that
4 may exist, neither the Governor nor any agency or agency head
5 under the jurisdiction of the Governor has any authority to
6 make or promulgate rules to implement or enforce the provisions
7 of this amendatory Act of the 95th General Assembly. If,
8 however, the Governor believes that rules are necessary to
9 implement or enforce the provisions of this amendatory Act of
10 the 95th General Assembly, the Governor may suggest rules to
11 the General Assembly by filing them with the Clerk of the House
12 and the Secretary of the Senate and by requesting that the
13 General Assembly authorize such rulemaking by law, enact those
14 suggested rules into law, or take any other appropriate action
15 in the General Assembly's discretion. Nothing contained in this
16 amendatory Act of the 95th General Assembly shall be
17 interpreted to grant rulemaking authority under any other
18 Illinois statute where such authority is not otherwise
19 explicitly given. For the purposes of this Section, "rules" is
20 given the meaning contained in Section 1-70 of the Illinois
21 Administrative Procedure Act, and "agency" and "agency head"
22 are given the meanings contained in Sections 1-20 and 1-25 of
23 the Illinois Administrative Procedure Act to the extent that
24 such definitions apply to agencies or agency heads under the
25 jurisdiction of the Governor.
26 (Source: P.A. 94-156, eff. 7-8-05; 94-556, eff. 9-11-05;

 

 

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1 95-331, eff. 8-21-07.)".