97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
SB1920

 

Introduced 2/10/2011, by Sen. Toi W. Hutchinson

 

SYNOPSIS AS INTRODUCED:
 
725 ILCS 5/115-17b new
730 ILCS 5/5-8-4  from Ch. 38, par. 1005-8-4

    Amends the Code of Criminal Procedure of 1963. Provides that in any criminal investigation of an offense involving the sexual exploitation of children, the Attorney General, or his or her designee, or a State's Attorney, or his or her designee, may issue in writing and cause to be served subpoenas duces tecum to providers of electronic communication services or remote computing services requiring the production of records relevant to the investigation. Provides that a witness who is duly subpoenaed who neglects or refuses to comply with the subpoena shall be proceeded against and punished for contempt of the court. Provides that notwithstanding any federal, State, or local law, any person, including officers, agents, and employees, receiving a subpoena under these provisions, who complies in good faith with the subpoena and thus produces the materials sought, shall not be liable in any court of Illinois to any customer or other person for such production or for nondisclosure of that production to the customer. Amends the Unified Code of Corrections. Provides that consecutive sentences shall be imposed when one of the offenses is child pornography or aggravated child pornography. Effective immediately.


LRB097 07230 RLC 47338 b

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

 

 

A BILL FOR

 

SB1920LRB097 07230 RLC 47338 b

1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Code of Criminal Procedure of 1963 is
5amended by adding Section 115-17b as follows:
 
6    (725 ILCS 5/115-17b new)
7    Sec. 115-17b. Administrative subpoenas.
8    (a) Definitions. As used in this Section:
9        "Electronic communication services" and "remote
10    computing services" have the same meaning as provided in
11    the Electronic Communications Privacy Act in Chapter 121
12    (commencing with Section 2701) of Part I of Title 18 of the
13    United States Code Annotated.
14        "Offense involving the sexual exploitation of
15    children" means an offense under Section 11-6, 11-6.5,
16    11-9.1, 11-15.1, 11-17.1, 11-18.1, 11-19.1, 11-19.2,
17    11-20.1, 11-20.3, 11-21, 11-23, 12-13, 12-14, 12-14.1,
18    12-15, or 12-16 of the Criminal Code of 1961 or any attempt
19    to commit any of these offenses.
20    (b) Subpoenas duces tecum. In any criminal investigation of
21an offense involving the sexual exploitation of children, the
22Attorney General, or his or her designee, or a State's
23Attorney, or his or her designee, may issue in writing and

 

 

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1cause to be served subpoenas duces tecum to providers of
2electronic communication services or remote computing services
3requiring the production of records relevant to the
4investigation. Any such request for records shall not extend
5beyond requiring the provider to disclose the information
6specified in 18 U.S.C. 2703(c)(2). Any subpoena duces tecum
7issued under this Section shall be made returnable to the Chief
8Judge of the Circuit Court for the Circuit in which the State's
9Attorney resides, or his or her designee, or for subpoenas
10issued by the Attorney General, the subpoena shall be made
11returnable to the Chief Judge of the Circuit Court for the
12Circuit to which the investigation pertains, or his or her
13designee, to determine whether the documents are privileged and
14whether the subpoena is unreasonable or oppressive.
15    (c) Contents of subpoena. A subpoena under this Section
16shall describe the records or other things required to be
17produced and prescribe a return date within a reasonable period
18of time within which the objects or records can be assembled
19and made available.
20    (d) Modifying or quashing subpoena. At any time before the
21return date specified in the subpoena, the person or entity to
22whom the subpoena is directed may petition for an order
23modifying or quashing the subpoena on the grounds that the
24subpoena is oppressive or unreasonable or that the subpoena
25seeks privileged documents or records.
26    (e) Ex parte order. An Illinois circuit court for the

 

 

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1circuit in which the subpoena is or will be issued, upon
2application of the Attorney General, or his or her designee, or
3State's Attorney, or his or her designee, may issue an ex parte
4order that no person or entity disclose to any other person or
5entity (other than persons necessary to comply with the
6subpoena) the existence of such subpoena for a period of up to
790 days.
8        (1) Such order may be issued upon a showing that the
9    things being sought may be relevant to the investigation
10    and there is reason to believe that such disclosure may
11    result in:
12            (A) endangerment to the life or physical safety of
13        any person;
14            (B) flight to avoid prosecution;
15            (C) destruction of or tampering with evidence;
16            (D) intimidation of potential witnesses; or
17            (E) otherwise seriously jeopardizing an
18        investigation or unduly delaying a trial.
19        (2) An order under this Section may be renewed for
20    additional periods of up to 90 days upon a showing that the
21    circumstances described in paragraph (1) of this
22    subsection (e) continue to exist.
23    (f) Enforcement. A witness who is duly subpoenaed who
24neglects or refuses to comply with the subpoena shall be
25proceeded against and punished for contempt of the court. A
26subpoena duces tecum issued under this Section may be enforced

 

 

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1pursuant to the Uniform Act to Secure the Attendance of
2Witnesses from Within or Without a State in Criminal
3Proceedings.
4    (g) Immunity From civil liability. Notwithstanding any
5federal, State, or local law, any person, including officers,
6agents, and employees, receiving a subpoena under this Section,
7who complies in good faith with the subpoena and thus produces
8the materials sought, shall not be liable in any court of
9Illinois to any customer or other person for such production or
10for nondisclosure of that production to the customer.
 
11    Section 10. The Unified Code of Corrections is amended by
12changing Section 5-8-4 as follows:
 
13    (730 ILCS 5/5-8-4)  (from Ch. 38, par. 1005-8-4)
14    Sec. 5-8-4. Concurrent and consecutive terms of
15imprisonment.
16    (a) Concurrent terms; multiple or additional sentences.
17When an Illinois court (i) imposes multiple sentences of
18imprisonment on a defendant at the same time or (ii) imposes a
19sentence of imprisonment on a defendant who is already subject
20to a sentence of imprisonment imposed by an Illinois court, a
21court of another state, or a federal court, then the sentences
22shall run concurrently unless otherwise determined by the
23Illinois court under this Section.
24    (b) Concurrent terms; misdemeanor and felony. A defendant

 

 

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1serving a sentence for a misdemeanor who is convicted of a
2felony and sentenced to imprisonment shall be transferred to
3the Department of Corrections, and the misdemeanor sentence
4shall be merged in and run concurrently with the felony
5sentence.
6    (c) Consecutive terms; permissive. The court may impose
7consecutive sentences in any of the following circumstances:
8        (1) If, having regard to the nature and circumstances
9    of the offense and the history and character of the
10    defendant, it is the opinion of the court that consecutive
11    sentences are required to protect the public from further
12    criminal conduct by the defendant, the basis for which the
13    court shall set forth in the record.
14        (2) If one of the offenses for which a defendant was
15    convicted was a violation of Section 32-5.2 (aggravated
16    false personation of a peace officer) of the Criminal Code
17    of 1961 (720 ILCS 5/32-5.2) and the offense was committed
18    in attempting or committing a forcible felony.
19    (d) Consecutive terms; mandatory. The court shall impose
20consecutive sentences in each of the following circumstances:
21        (1) One of the offenses for which the defendant was
22    convicted was first degree murder or a Class X or Class 1
23    felony and the defendant inflicted severe bodily injury.
24        (2) The defendant was convicted of a violation of
25    Section 11-20.1 (child pornography), 11-20.3 (aggravated
26    child pornography), 12-13 (criminal sexual assault), 12-14

 

 

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1    (aggravated criminal sexual assault), or 12-14.1
2    (predatory criminal sexual assault of a child) of the
3    Criminal Code of 1961 (720 ILCS 5/11-20.1, 5/11-20.3,
4    5/12-13, 5/12-14, or 5/12-14.1).
5        (3) The defendant was convicted of armed violence based
6    upon the predicate offense of any of the following:
7    solicitation of murder, solicitation of murder for hire,
8    heinous battery, aggravated battery of a senior citizen,
9    criminal sexual assault, a violation of subsection (g) of
10    Section 5 of the Cannabis Control Act (720 ILCS 550/5),
11    cannabis trafficking, a violation of subsection (a) of
12    Section 401 of the Illinois Controlled Substances Act (720
13    ILCS 570/401), controlled substance trafficking involving
14    a Class X felony amount of controlled substance under
15    Section 401 of the Illinois Controlled Substances Act (720
16    ILCS 570/401), a violation of the Methamphetamine Control
17    and Community Protection Act (720 ILCS 646/), calculated
18    criminal drug conspiracy, or streetgang criminal drug
19    conspiracy.
20        (4) The defendant was convicted of the offense of
21    leaving the scene of a motor vehicle accident involving
22    death or personal injuries under Section 11-401 of the
23    Illinois Vehicle Code (625 ILCS 5/11-401) and either: (A)
24    aggravated driving under the influence of alcohol, other
25    drug or drugs, or intoxicating compound or compounds, or
26    any combination thereof under Section 11-501 of the

 

 

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1    Illinois Vehicle Code (625 ILCS 5/11-501), (B) reckless
2    homicide under Section 9-3 of the Criminal Code of 1961
3    (720 ILCS 5/9-3), or (C) both an offense described in item
4    (A) and an offense described in item (B).
5        (5) The defendant was convicted of a violation of
6    Section 9-3.1 (concealment of homicidal death) or Section
7    12-20.5 (dismembering a human body) of the Criminal Code of
8    1961 (720 ILCS 5/9-3.1 or 5/12-20.5).
9        (5.5) The defendant was convicted of a violation of
10    Section 24-3.7 (use of a stolen firearm in the commission
11    of an offense) of the Criminal Code of 1961.
12        (6) If the defendant was in the custody of the
13    Department of Corrections at the time of the commission of
14    the offense, the sentence shall be served consecutive to
15    the sentence under which the defendant is held by the
16    Department of Corrections. If, however, the defendant is
17    sentenced to punishment by death, the sentence shall be
18    executed at such time as the court may fix without regard
19    to the sentence under which the defendant may be held by
20    the Department.
21        (7) A sentence under Section 3-6-4 (730 ILCS 5/3-6-4)
22    for escape or attempted escape shall be served consecutive
23    to the terms under which the offender is held by the
24    Department of Corrections.
25        (8) If a person charged with a felony commits a
26    separate felony while on pretrial release or in pretrial

 

 

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1    detention in a county jail facility or county detention
2    facility, then the sentences imposed upon conviction of
3    these felonies shall be served consecutively regardless of
4    the order in which the judgments of conviction are entered.
5        (8.5) If a person commits a battery against a county
6    correctional officer or sheriff's employee while serving a
7    sentence or in pretrial detention in a county jail
8    facility, then the sentence imposed upon conviction of the
9    battery shall be served consecutively with the sentence
10    imposed upon conviction of the earlier misdemeanor or
11    felony, regardless of the order in which the judgments of
12    conviction are entered.
13        (9) If a person admitted to bail following conviction
14    of a felony commits a separate felony while free on bond or
15    if a person detained in a county jail facility or county
16    detention facility following conviction of a felony
17    commits a separate felony while in detention, then any
18    sentence following conviction of the separate felony shall
19    be consecutive to that of the original sentence for which
20    the defendant was on bond or detained.
21        (10) If a person is found to be in possession of an
22    item of contraband, as defined in clause (c)(2) of Section
23    31A-1.1 of the Criminal Code of 1961, while serving a
24    sentence in a county jail or while in pre-trial detention
25    in a county jail, the sentence imposed upon conviction for
26    the offense of possessing contraband in a penal institution

 

 

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1    shall be served consecutively to the sentence imposed for
2    the offense in which the person is serving sentence in the
3    county jail or serving pretrial detention, regardless of
4    the order in which the judgments of conviction are entered.
5        (11) If a person is sentenced for a violation of bail
6    bond under Section 32-10 of the Criminal Code of 1961, any
7    sentence imposed for that violation shall be served
8    consecutive to the sentence imposed for the charge for
9    which bail had been granted and with respect to which the
10    defendant has been convicted.
11    (e) Consecutive terms; subsequent non-Illinois term. If an
12Illinois court has imposed a sentence of imprisonment on a
13defendant and the defendant is subsequently sentenced to a term
14of imprisonment by a court of another state or a federal court,
15then the Illinois sentence shall run consecutively to the
16sentence imposed by the court of the other state or the federal
17court. That same Illinois court, however, may order that the
18Illinois sentence run concurrently with the sentence imposed by
19the court of the other state or the federal court, but only if
20the defendant applies to that same Illinois court within 30
21days after the sentence imposed by the court of the other state
22or the federal court is finalized.
23    (f) Consecutive terms; aggregate maximums and minimums.
24The aggregate maximum and aggregate minimum of consecutive
25sentences shall be determined as follows:
26        (1) For sentences imposed under law in effect prior to

 

 

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1    February 1, 1978, the aggregate maximum of consecutive
2    sentences shall not exceed the maximum term authorized
3    under Section 5-8-1 (730 ILCS 5/5-8-1) or Article 4.5 of
4    Chapter V for the 2 most serious felonies involved. The
5    aggregate minimum period of consecutive sentences shall
6    not exceed the highest minimum term authorized under
7    Section 5-8-1 (730 ILCS 5/5-8-1) or Article 4.5 of Chapter
8    V for the 2 most serious felonies involved. When sentenced
9    only for misdemeanors, a defendant shall not be
10    consecutively sentenced to more than the maximum for one
11    Class A misdemeanor.
12        (2) For sentences imposed under the law in effect on or
13    after February 1, 1978, the aggregate of consecutive
14    sentences for offenses that were committed as part of a
15    single course of conduct during which there was no
16    substantial change in the nature of the criminal objective
17    shall not exceed the sum of the maximum terms authorized
18    under Article 4.5 of Chapter V for the 2 most serious
19    felonies involved, but no such limitation shall apply for
20    offenses that were not committed as part of a single course
21    of conduct during which there was no substantial change in
22    the nature of the criminal objective. When sentenced only
23    for misdemeanors, a defendant shall not be consecutively
24    sentenced to more than the maximum for one Class A
25    misdemeanor.
26    (g) Consecutive terms; manner served. In determining the

 

 

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1manner in which consecutive sentences of imprisonment, one or
2more of which is for a felony, will be served, the Department
3of Corrections shall treat the defendant as though he or she
4had been committed for a single term subject to each of the
5following:
6        (1) The maximum period of a term of imprisonment shall
7    consist of the aggregate of the maximums of the imposed
8    indeterminate terms, if any, plus the aggregate of the
9    imposed determinate sentences for felonies, plus the
10    aggregate of the imposed determinate sentences for
11    misdemeanors, subject to subsection (f) of this Section.
12        (2) The parole or mandatory supervised release term
13    shall be as provided in paragraph (e) of Section 5-4.5-50
14    (730 ILCS 5/5-4.5-50) for the most serious of the offenses
15    involved.
16        (3) The minimum period of imprisonment shall be the
17    aggregate of the minimum and determinate periods of
18    imprisonment imposed by the court, subject to subsection
19    (f) of this Section.
20        (4) The defendant shall be awarded credit against the
21    aggregate maximum term and the aggregate minimum term of
22    imprisonment for all time served in an institution since
23    the commission of the offense or offenses and as a
24    consequence thereof at the rate specified in Section 3-6-3
25    (730 ILCS 5/3-6-3).
26(Source: P.A. 95-379, eff. 8-23-07; 95-766, eff. 1-1-09;

 

 

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195-1052, eff. 7-1-09; 96-190, eff. 1-1-10; 96-1000, eff.
27-2-10; 96-1200, eff. 7-22-10.)
 
3    Section 99. Effective date. This Act takes effect upon
4becoming law.