HB3332eng 104TH GENERAL ASSEMBLY

HB3332 Engrossed LRB104 09379 RLC 19438 b

AN ACT concerning criminal law.

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

Section 5. The Unified Code of Corrections is amended by adding Section 5-4.5-120 as follows:

(730 ILCS 5/5-4.5-120 new)

Sec. 5-4.5-120. SENTENCING REVIEW OF PERSONS UNDER THE AGE OF 21 AT THE TIME OF THE COMMISSION OF AN OFFENSE. A person under 21 years of age at the time of the commission of an offense or offenses, other than first degree murder, shall be eligible for sentencing review after serving 10 years or more of his or her sentence or cumulative sentences. A person under 21 years of age at the time of the commission of first degree murder shall be eligible for sentencing review after serving 20 years or more of his or her sentence or cumulative sentences, except for those subject to a term of natural life imprisonment under Section 5-8-1 of this Code or any person subject to sentencing under subsection (f) of Section 5-4.5-105 of this Code, who shall be eligible for sentencing review after serving 30 years or more of his or her sentence or cumulative sentences. Any eligible person shall submit a petition for sentencing review in the circuit court of the county in which he or she was originally sentenced. The procedure for sentencing review shall occur in the following manner:

(1) The chief judge of the criminal division of the circuit located in a county of 2,000,000 or more inhabitants, or in counties under 2,000,000 inhabitants, the chief judge of the circuit or a judge assigned by the chief judge, in which the petition is filed, shall assign the matter to any judge.

(2) Upon receipt of the petition and assignment to a judge, the judge shall determine within 30 days if the petitioner has sought filing in the appropriate court and has served the appropriate amount of time of his or her sentence as set forth in this Section. If the court determines that either of those factors are not satisfied, it shall dismiss the petition and notify the petitioner of the reason for the dismissal. This notification shall be served upon the petitioner by certified mail within 10 days of its entry. If the court determines the petition was appropriately filed, it shall docket the petition. If the petitioner is without counsel and alleges in the petition for sentencing review that he or she is without means to procure counsel, he or she shall state whether or not he or she wishes counsel to be appointed to represent him or her. If appointment of counsel is requested, the court shall appoint the Public Defender if the court is satisfied that the petitioner has no means to procure counsel. The clerk of the circuit court shall serve a copy of the petition to the State's Attorney of that county or his or her representative.

(3) Upon receipt of the petition for sentencing review, the State's Attorney's Office shall provide notice to the victim or his or her family, or both, and notice to the victim or his or her family, or both, of any restorative justice programs or any other resources available in the State or the local area. The State's Attorney may also include, but is not limited to, providing a copy of the petition by certified mail and connection to a victim advocate. The State's Attorney shall make every effort to provide such notice and, if unsuccessful, shall notify the chief judge of the circuit court and the judge assigned to the sentencing review.

(4) The petitioner, if pro se, or his or her attorney may amend the petition for sentencing review.

(5) The State's Attorney must be afforded an opportunity to respond to the petition and the court shall provide the petitioner with the opportunity to reply.

(6) Within 90 days after the filing of the petition for sentencing review, the court shall set the matter for a hearing. This date may be extended by motion of either party and at the court's discretion for good cause shown.

(7) At the sentencing review hearing, the court shall:

(A) consider in mitigation the factors listed in subparagraphs (A) through (K) of paragraph (8) of this Section;

(B) consider any evidence, factual basis, and testimony, if any, received at trial or plea agreement;

(C) consider any presentence reports;

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

(E) consider any additional evidence and information offered by the parties in aggravation and mitigation, including, but not limited to, scientific evidence of recidivism;

(F) consider the person's overall record of behavior while incarcerated, including disciplinary history, participation in educational and vocational programs available to the petitioner, including but not limited to restorative justice programs, and extent of cooperation with staff;

(G) hear arguments as to sentencing alternatives;

(H) afford the petitioner the opportunity to make a statement on his or her own behalf without being subject to cross-examination; and

(I) afford the victim or family of the victim of the crime, or both, for which the petitioner was originally sentenced an 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. A victim and any person making an oral statement shall not be put under oath or subject to cross-examination. All statements offered under this paragraph shall become part of the record of the court.

(8) Following the hearing, the court may affirm or reduce the petitioner's sentence and shall be authorized to depart downward from any mandatory minimum or mandatory sentence enhancement, taking into consideration the following factors:

(A) the petitioner's current age, as well as the petitioner's age, impetuosity, and level of maturity at the time of the offense, including the ability to consider risks and consequences of behavior, and the presence of cognitive or developmental disability, if any;

(B) whether the petitioner was subjected to outside pressure, including peer pressure, familial pressure, or negative influences;

(C) the petitioner's family and community circumstances, home environment, educational and social background, including any history of parental neglect, physical, mental, or sexual abuse, involvement in the child welfare system, or other childhood trauma including adverse childhood experiences (or ACEs);

(D) the nature and circumstances of the offense;

(E) the petitioner's degree of participation and specific role in the offense, including the level of planning by the defendant before the offense;

(F) whether the person was able to meaningfully participate in his or her defense;

(G) the petitioner's prior juvenile or criminal history;

(H) the history and characteristics of the petitioner at the time of the petition, including rehabilitation and maturity demonstrated by the petitioner;

(I) any report from a physical, mental, or psychiatric examination of the petitioner conducted by a licensed health professional;

(J) any changes to the law governing criminal convictions, dispositions, or length of stay since the time of sentencing; and

(K) any other information the court finds relevant and reliable, including an expression of remorse, if appropriate. However, if the person, on advice of counsel chooses not to make a statement, the court shall not consider a lack of an expression of remorse as an aggravating factor.

The order following a sentencing review hearing is a final judgment. Any final judgment entered upon the petition shall be reviewed in a manner pursuant to the rules of the Supreme Court.

(9) Notwithstanding any provision of this Section to the contrary, any petitioner who has petitioned the circuit court for sentencing review pursuant to this Section shall not be eligible to submit a second and final petition for sentencing review until at least 5 years have elapsed since the date on which the circuit court ruled upon the initial petition. In considering the second petition, the court shall follow the procedure stated in paragraphs (2) through (8) of this Section. Following a hearing on the second petition pursuant to this paragraph (9), the court may affirm or reduce the petitioner's sentence. The order following a hearing pursuant to this paragraph is a final judgment.

(10) This Section operates retroactively to provide any person incarcerated for a crime or crimes committed before the effective date of this amendatory Act of the 104th General Assembly, with the opportunity to file a motion for resentencing under this Section under the terms provided in this Section.

(11) Notwithstanding anything else to the contrary in this Section, nothing in this Section shall be construed to delay release consideration for petitioners who, prior to the effective date of this amendatory Act of the 104th General Assembly, are or will be eligible for release earlier than this Section provides.

(12) The clerk of the court shall serve copies of the petitions, any amendments to the petition and the final orders to the Illinois Sentencing Policy Advisory Council. The Illinois Sentencing Policy Advisory Council shall report on the impact of resentencing motions on the prison population contingent on having sufficient reliable data to support the analysis. The report shall be due 3 years after the effective date of this amendatory Act of the 104th General Assembly.

Section 99. Effective date. This Act takes effect upon becoming law.