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093_HB3691
LRB093 09562 RLC 09800 b
1 AN ACT in relation to criminal matters.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 1. Short title. This Act may be cited as the
5 Illinois Independent Forensic Laboratory Act.
6 Section 2. Illinois Independent Forensic Laboratory.
7 (a) There is created the Illinois Independent Forensic
8 Laboratory. The Laboratory shall be governed by a board of
9 directors consisting of 5 members appointed by the Governor.
10 Each member of the board of directors shall serve a 4-year
11 term, except that 3 of the initial members appointed to the
12 board of directors after the effective date of this Act shall
13 each serve a 2-year term. The members of the board of
14 directors shall by a vote of 3 members chose a chairperson to
15 serve a 2-year term. The presence of 3 members of the board
16 of directors shall constitute a quorum to do business.
17 (b) Members of the board of directors shall serve
18 without compensation, but shall be reimbursed for necessary
19 expenses incurred in the performance of their duties.
20 Vacancies on the board of directors shall be filled by the
21 Governor. A member of the board of directors appointed to
22 fill a vacancy shall serve for the unexpired term of the
23 member whom he or she is succeeding.
24 (c) The members of the board of directors shall by a
25 majority vote hire an Executive Director who shall serve at
26 the pleasure of the board of directors. The Executive
27 Director shall manage the operations of the Laboratory under
28 the direction of the board of directors. The Executive
29 Director shall hire such personnel as are necessary to carry
30 out the operations of the Laboratory with the approval of the
31 board of directors.
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1 (d) The Illinois Independent Forensic Laboratory shall
2 conduct forensic testing for Illinois law enforcement
3 agencies. Notwithstanding any other law to the contrary, all
4 functions related to forensic testing by the Department of
5 State Police shall instead be performed by the Illinois
6 Independent Forensic Laboratory, and the board of directors
7 and the Department of State Police shall enter into a
8 cooperative agreement to transfer appropriate assets.
9 Section 5. The Attorney General Act is amended by
10 changing Section 4 as follows:
11 (15 ILCS 205/4) (from Ch. 14, par. 4)
12 Sec. 4. The duties of the Attorney General shall be--
13 First - To appear for and represent the people of the
14 State before the supreme court in all cases in which the
15 State or the people of the State are interested.
16 Notwithstanding this provision, the Office of Public Counsel
17 shall be authorized to represent the interests of the people
18 of the State in all proceedings pertinent to utility
19 regulation, including cases before the supreme court, where
20 any such case is properly brought by the Office pursuant to
21 its statutory duties and powers.
22 Second - To institute and prosecute all actions and
23 proceedings in favor of or for the use of the State, which
24 may be necessary in the execution of the duties of any State
25 officer.
26 Third - To defend all actions and proceedings against any
27 State officer, in his official capacity, in any of the courts
28 of this State or the United States.
29 Fourth - To consult with and advise the several State's
30 Attorneys in matters relating to the duties of their office;
31 and when, in his judgment, the interest of the people of the
32 State requires it, he shall attend the trial of any party
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1 accused of crime, and assist in the prosecution. When the
2 Attorney General has requested in writing that a State's
3 Attorney initiate court proceedings to enforce any provisions
4 of the Election Code or to initiate a criminal prosecution
5 with respect to a violation of the Election Code, and when
6 the State's Attorney has declined in writing to initiate
7 those proceedings or prosecutions or when the State's
8 Attorney has neither initiated the proceedings or
9 prosecutions nor responded in writing to the Attorney General
10 within 60 days of the receipt of the request, the Attorney
11 General may, concurrently with or independently of the
12 State's Attorney, initiate such proceedings or prosecutions.
13 Fifth - To investigate alleged violations of the statutes
14 which the Attorney General has a duty to enforce and to
15 conduct other investigations in connection with assisting in
16 the prosecution of a criminal offense at the request of a
17 State's Attorney.
18 Sixth - To consult with and advise the governor and other
19 State officers, and give, when requested, written opinions
20 upon all legal or constitutional questions relating to the
21 duties of such officers respectively.
22 Seventh - To prepare, when necessary, proper drafts for
23 contracts and other writings relating to subjects in which
24 the State is interested.
25 Eighth - To give written opinions, when requested by
26 either branch of the general assembly, or any committee
27 thereof, upon constitutional or legal questions.
28 Ninth - To enforce the proper application of funds
29 appropriated to the public institutions of the State,
30 prosecute breaches of trust in the administration of such
31 funds, and, when necessary, prosecute corporations for
32 failure or refusal to make the reports required by law.
33 Tenth - To keep, a register of all cases prosecuted or
34 defended by him, in behalf of the State or its officers, and
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1 of all proceedings had in relation thereto, and to deliver
2 the same to his successor in office.
3 Eleventh - To keep on file in his office a copy of the
4 official opinions issued by the Attorney General and deliver
5 same to his successor.
6 Twelfth - To pay into the State treasury all moneys
7 received by him for the use of the State.
8 Thirteenth - To attend to and perform any other duty
9 which may, from time to time, be required of him by law.
10 Fourteenth - To attend, present evidence to and prosecute
11 indictments returned by each Statewide Grand Jury.
12 Fifteenth - To publish a guide based on the United States
13 Department of State manual for state and local law
14 enforcement agencies of their notification obligations under
15 the Vienna Convention on Consular Relations and to regularly
16 review measures taken by State and Local law enforcement
17 agencies to ensure full compliance with the notification
18 obligations.
19 (Source: P.A. 87-466.)
20 Section 10. The State Police Act is amended by adding
21 Section 9.5 as follows:
22 (20 ILCS 2610/9.5 new)
23 Sec. 9.5. Curricula relating to the arrest and detention
24 of foreign nationals. The Board shall require persons
25 appointed as Department of State Police officers to be
26 instructed on consular rights and the notification
27 obligations to be followed during the arrest and detention of
28 foreign nationals under the protocols of the Vienna
29 Convention on Consular Relations.
30 Section 15. The Illinois Criminal Justice Information
31 Act is amended by changing Section 7 as follows:
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1 (20 ILCS 3930/7) (from Ch. 38, par. 210-7)
2 Sec. 7. Powers and Duties. The Authority shall have the
3 following powers, duties and responsibilities:
4 (a) To develop and operate comprehensive
5 information systems for the improvement and coordination
6 of all aspects of law enforcement, prosecution and
7 corrections;
8 (b) To define, develop, evaluate and correlate
9 State and local programs and projects associated with the
10 improvement of law enforcement and the administration of
11 criminal justice;
12 (c) To act as a central repository and clearing
13 house for federal, state and local research studies,
14 plans, projects, proposals and other information relating
15 to all aspects of criminal justice system improvement and
16 to encourage educational programs for citizen support of
17 State and local efforts to make such improvements;
18 (d) To undertake research studies to aid in
19 accomplishing its purposes;
20 (e) To monitor the operation of existing criminal
21 justice information systems in order to protect the
22 constitutional rights and privacy of individuals about
23 whom criminal history record information has been
24 collected;
25 (f) To provide an effective administrative forum
26 for the protection of the rights of individuals
27 concerning criminal history record information;
28 (g) To issue regulations, guidelines and procedures
29 which ensure the privacy and security of criminal history
30 record information consistent with State and federal
31 laws;
32 (h) To act as the sole administrative appeal body
33 in the State of Illinois to conduct hearings and make
34 final determinations concerning individual challenges to
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1 the completeness and accuracy of criminal history record
2 information;
3 (i) To act as the sole, official, criminal justice
4 body in the State of Illinois to conduct annual and
5 periodic audits of the procedures, policies, and
6 practices of the State central repositories for criminal
7 history record information to verify compliance with
8 federal and state laws and regulations governing such
9 information;
10 (j) To advise the Authority's Statistical Analysis
11 Center;
12 (k) To apply for, receive, establish priorities
13 for, allocate, disburse and spend grants of funds that
14 are made available by and received on or after January 1,
15 1983 from private sources or from the United States
16 pursuant to the federal Crime Control Act of 1973, as
17 amended, and similar federal legislation, and to enter
18 into agreements with the United States government to
19 further the purposes of this Act, or as may be required
20 as a condition of obtaining federal funds;
21 (l) To receive, expend and account for such funds
22 of the State of Illinois as may be made available to
23 further the purposes of this Act;
24 (m) To enter into contracts and to cooperate with
25 units of general local government or combinations of such
26 units, State agencies, and criminal justice system
27 agencies of other states for the purpose of carrying out
28 the duties of the Authority imposed by this Act or by the
29 federal Crime Control Act of 1973, as amended;
30 (n) To enter into contracts and cooperate with
31 units of general local government outside of Illinois,
32 other states' agencies, and private organizations outside
33 of Illinois to provide computer software or design that
34 has been developed for the Illinois criminal justice
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1 system, or to participate in the cooperative development
2 or design of new software or systems to be used by the
3 Illinois criminal justice system. Revenues received as a
4 result of such arrangements shall be deposited in the
5 Criminal Justice Information Systems Trust Fund.
6 (o) To establish general policies concerning
7 criminal justice information systems and to promulgate
8 such rules, regulations and procedures as are necessary
9 to the operation of the Authority and to the uniform
10 consideration of appeals and audits;
11 (p) To advise and to make recommendations to the
12 Governor and the General Assembly on policies relating to
13 criminal justice information systems;
14 (q) To direct all other agencies under the
15 jurisdiction of the Governor to provide whatever
16 assistance and information the Authority may lawfully
17 require to carry out its functions;
18 (r) To exercise any other powers that are
19 reasonable and necessary to fulfill the responsibilities
20 of the Authority under this Act and to comply with the
21 requirements of applicable federal law or regulation;
22 (s) To exercise the rights, powers and duties which
23 have been vested in the Authority by the "Illinois
24 Uniform Conviction Information Act", enacted by the 85th
25 General Assembly, as hereafter amended; and
26 (t) To exercise the rights, powers and duties which
27 have been vested in the Authority by the Illinois Motor
28 Vehicle Theft Prevention Act; and.
29 (u) To establish a publicly accessible database
30 containing data collected from each circuit judge and
31 associate judge assigned to try first degree murder
32 cases. The database shall contain data about first
33 degree murder cases including details about the trials,
34 backgrounds of the defendants, and the bases for the
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1 sentences imposed. Each circuit judge and associate
2 judge assigned to try first degree murder cases shall
3 submit to the Administrative Office of the Illinois
4 Courts a form containing information about each first
5 degree murder trial, the background of the defendant, and
6 the basis for the sentence imposed. Each form collected
7 by the Administrative Office of the Illinois Courts from
8 an individual case is not a public record but the
9 collective data obtained from the forms is a public
10 record; provided that the collective data does not
11 identify an individual court, defendant, or specific
12 case.
13 The requirement for reporting to the General Assembly
14 shall be satisfied by filing copies of the report with the
15 Speaker, the Minority Leader and the Clerk of the House of
16 Representatives and the President, the Minority Leader and
17 the Secretary of the Senate and the Legislative Research
18 Unit, as required by Section 3.1 of "An Act to revise the law
19 in relation to the General Assembly", approved February 25,
20 1874, as amended, and filing such additional copies with the
21 State Government Report Distribution Center for the General
22 Assembly as is required under paragraph (t) of Section 7 of
23 the State Library Act.
24 (Source: P.A. 85-922; 86-1408.)
25 Section 20. The Illinois Police Training Act is amended
26 by changing Sections 6.1 and 7 as follows:
27 (50 ILCS 705/6.1)
28 Sec. 6.1. Decertification of full-time and part-time
29 police officers.
30 (a) The Board must review police officer conduct and
31 records to ensure that no police officer is certified or
32 provided a valid waiver if that police officer has been:
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1 (1) convicted of a felony offense under the laws of
2 this State or any other state which if committed in this
3 State would be punishable as a felony;.
4 (2)The Board must also ensure that no police
5 officer is certified or provided a valid waiver if that
6 police officer has been convicted on or after the
7 effective date of this amendatory Act of 1999 of any
8 misdemeanor specified in this Section or if committed in
9 any other state would be an offense similar to Section
10 11-6, 11-9.1, 11-14, 11-17, 11-19, 12-2, 12-15, 16-1,
11 17-1, 17-2, 28-3, 29-1, 31-1, 31-6, 31-7, 32-4a, or 32-7
12 of the Criminal Code of 1961 or to Section 5 or 5.2 of
13 the Cannabis Control Act; or
14 (3) the subject of an administrative determination,
15 conducted pursuant to the rules and regulations of the
16 law enforcement agency or department employing the police
17 officer, of knowingly committing perjury in a criminal
18 proceeding. For the purposes of this subsection,
19 "perjury" shall have the meaning as set forth in Section
20 32-2 of the Criminal Code of 1961.
21 The Board must appoint investigators to enforce the
22 duties conferred upon the Board by this Act.
23 (b) It is the responsibility of the sheriff or the chief
24 executive officer of every local law enforcement agency or
25 department within this State to report to the Board any
26 arrest, administrative determination of perjury, or
27 conviction of any officer for an offense identified in this
28 Section.
29 (c) It is the duty and responsibility of every full-time
30 and part-time police officer in this State to report to the
31 Board within 30 days, and the officer's sheriff or chief
32 executive officer, of his or her arrest, administrative
33 determination of perjury, or conviction for an offense
34 identified in this Section. Any full-time or part-time police
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1 officer who knowingly makes, submits, causes to be submitted,
2 or files a false or untruthful report to the Board must have
3 his or her certificate or waiver immediately decertified or
4 revoked.
5 (d) Any person, or a local or State agency, or the Board
6 is immune from liability for submitting, disclosing, or
7 releasing information of arrests, administrative
8 determinations of perjury, or convictions in this Section as
9 long as the information is submitted, disclosed, or released
10 in good faith and without malice. The Board has qualified
11 immunity for the release of the information.
12 (e) Any full-time or part-time police officer with a
13 certificate or waiver issued by the Board who is convicted of
14 any offense described in this Section or is subject to an
15 administrative determination of perjury immediately becomes
16 decertified or no longer has a valid waiver. The
17 decertification and invalidity of waivers occurs as a matter
18 of law. Failure of a convicted person to report to the Board
19 his or her conviction as described in this Section or any
20 continued law enforcement practice after receiving a
21 conviction is a Class 4 felony.
22 (f) The Board's investigators are peace officers and
23 have all the powers possessed by policemen in cities and by
24 sheriff's, provided that the investigators may exercise those
25 powers anywhere in the State, only after contact and
26 cooperation with the appropriate local law enforcement
27 authorities.
28 (g) The Board must request and receive information and
29 assistance from any federal, state, or local governmental
30 agency as part of the authorized criminal background
31 investigation. The Department of State Police must process,
32 retain, and additionally provide and disseminate information
33 to the Board concerning criminal charges, arrests,
34 convictions, and their disposition, that have been filed
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1 before, on, or after the effective date of this amendatory
2 Act of the 91st General Assembly against a basic academy
3 applicant, law enforcement applicant, or law enforcement
4 officer whose fingerprint identification cards are on file or
5 maintained by the Department of State Police. The Federal
6 Bureau of Investigation must provide the Board any criminal
7 history record information contained in its files pertaining
8 to law enforcement officers or any applicant to a Board
9 certified basic law enforcement academy as described in this
10 Act based on fingerprint identification. The Board must make
11 payment of fees to the Department of State Police for each
12 fingerprint card submission in conformance with the
13 requirements of paragraph 22 of Section 55a of the Civil
14 Administrative Code of Illinois.
15 (Source: P.A. 91-495, eff. 1-1-00.)
16 (50 ILCS 705/7) (from Ch. 85, par. 507)
17 Sec. 7. Rules and standards for schools. The Board shall
18 adopt rules and minimum standards for such schools which
19 shall include but not be limited to the following:
20 a. The curriculum for probationary police officers which
21 shall be offered by all certified schools shall include but
22 not be limited to courses of arrest, search and seizure,
23 civil rights, human relations, criminal law, law of criminal
24 procedure, vehicle and traffic law, traffic control and
25 accident investigation, techniques of obtaining physical
26 evidence, court testimonies, statements, reports, firearms
27 training, first-aid (including cardiopulmonary
28 resuscitation), handling of juvenile offenders, recognition
29 of mental conditions which require immediate assistance and
30 methods to safeguard and provide assistance to a person in
31 need of mental treatment, law of evidence, the hazards of
32 high-speed police vehicle chases with an emphasis on
33 alternatives to the high-speed chase, and physical training.
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1 The curriculum shall also include instruction on consular
2 rights and the notification obligations to be followed during
3 the arrest and detention of foreign nationals under the
4 protocols of the Vienna Convention on Consular Relations. The
5 curriculum shall include specific training in techniques for
6 immediate response to and investigation of cases of domestic
7 violence and of sexual assault of adults and children. The
8 curriculum for permanent police officers shall include but
9 not be limited to (1) refresher and in-service training in
10 any of the courses listed above in this subparagraph, (2)
11 advanced courses in any of the subjects listed above in this
12 subparagraph, (3) training for supervisory personnel, and (4)
13 specialized training in subjects and fields to be selected by
14 the board.
15 b. Minimum courses of study, attendance requirements and
16 equipment requirements.
17 c. Minimum requirements for instructors.
18 d. Minimum basic training requirements, which a
19 probationary police officer must satisfactorily complete
20 before being eligible for permanent employment as a local law
21 enforcement officer for a participating local governmental
22 agency. Those requirements shall include training in first
23 aid (including cardiopulmonary resuscitation).
24 e. Minimum basic training requirements, which a
25 probationary county corrections officer must satisfactorily
26 complete before being eligible for permanent employment as a
27 county corrections officer for a participating local
28 governmental agency.
29 f. Minimum basic training requirements which a
30 probationary court security officer must satisfactorily
31 complete before being eligible for permanent employment as a
32 court security officer for a participating local governmental
33 agency. The Board shall establish those training
34 requirements which it considers appropriate for court
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1 security officers and shall certify schools to conduct that
2 training.
3 A person hired to serve as a court security officer must
4 obtain from the Board a certificate (i) attesting to his or
5 her successful completion of the training course; (ii)
6 attesting to his or her satisfactory completion of a training
7 program of similar content and number of hours that has been
8 found acceptable by the Board under the provisions of this
9 Act; or (iii) attesting to the Board's determination that the
10 training course is unnecessary because of the person's
11 extensive prior law enforcement experience.
12 Individuals who currently serve as court security
13 officers shall be deemed qualified to continue to serve in
14 that capacity so long as they are certified as provided by
15 this Act within 24 months of the effective date of this
16 amendatory Act of 1996. Failure to be so certified, absent a
17 waiver from the Board, shall cause the officer to forfeit his
18 or her position.
19 All individuals hired as court security officers on or
20 after the effective date of this amendatory Act of 1996 shall
21 be certified within 12 months of the date of their hire,
22 unless a waiver has been obtained by the Board, or they shall
23 forfeit their positions.
24 The Sheriff's Merit Commission, if one exists, or the
25 Sheriff's Office if there is no Sheriff's Merit Commission,
26 shall maintain a list of all individuals who have filed
27 applications to become court security officers and who meet
28 the eligibility requirements established under this Act.
29 Either the Sheriff's Merit Commission, or the Sheriff's
30 Office if no Sheriff's Merit Commission exists, shall
31 establish a schedule of reasonable intervals for verification
32 of the applicants' qualifications under this Act and as
33 established by the Board.
34 (Source: P.A. 88-661, eff. 1-1-95; 89-685, eff. 6-1-97;
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1 89-707, eff. 6-1-97.)
2 Section 25. The Counties Code is amended by changing
3 Section 3-4006 as follows:
4 (55 ILCS 5/3-4006) (from Ch. 34, par. 3-4006)
5 Sec. 3-4006. Duties of public defender. The Public
6 Defender, as directed by the court, shall act as attorney,
7 without fee, before any court within any county for all
8 persons who are held in custody or who are charged with the
9 commission of any criminal offense, and who the court finds
10 are unable to employ counsel.
11 The Public Defender shall be the attorney, without fee,
12 when so appointed by the court under Section 1-20 of the
13 Juvenile Court Act or Section 1-5 of the Juvenile Court Act
14 of 1987 or by any court under Section 5(b) of the Parental
15 Notice of Abortion Act of 1983 for any party who the court
16 finds is financially unable to employ counsel.
17 The Public Defender may act as attorney, without fee and
18 appointment by the court, for a person in custody during the
19 person's interrogation regarding first degree murder for
20 which the death penalty may be imposed, if the person has
21 requested the advice of counsel and there is a reasonable
22 belief that the person is indigent. Any further
23 representation of the person by the Public Defender shall be
24 pursuant to Section 109-1 of the Code of Criminal Procedure
25 of 1963.
26 Every court shall, with the consent of the defendant and
27 where the court finds that the rights of the defendant would
28 be prejudiced by the appointment of the public defender,
29 appoint counsel other than the public defender, except as
30 otherwise provided in Section 113-3 of the "Code of Criminal
31 Procedure of 1963". That counsel shall be compensated as is
32 provided by law. He shall also, in the case of the conviction
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1 of any such person, prosecute any proceeding in review which
2 in his judgment the interests of justice require.
3 (Source: P.A. 86-962.)
4 Section 30. The Criminal Code of 1961 is amended by
5 changing Sections 8-4, 9-1, and 14-3 as follows:
6 (720 ILCS 5/8-4) (from Ch. 38, par. 8-4)
7 Sec. 8-4. Attempt.
8 (a) Elements of the Offense.
9 A person commits an attempt when, with intent to commit a
10 specific offense, he does any act which constitutes a
11 substantial step toward the commission of that offense.
12 (b) Impossibility.
13 It shall not be a defense to a charge of attempt that
14 because of a misapprehension of the circumstances it would
15 have been impossible for the accused to commit the offense
16 attempted.
17 (c) Sentence.
18 A person convicted of an attempt may be fined or
19 imprisoned or both not to exceed the maximum provided for the
20 offense attempted but, except for an attempt to commit the
21 offense defined in Section 33A-2 of this Act,
22 (1) the sentence for attempt to commit first degree
23 murder is the sentence for a Class X felony, except that
24 (A) an attempt to commit first degree murder
25 when at least one of the aggravating factors
26 specified in paragraphs (1) and, (2) and (12) of
27 subsection (b) of Section 9-1 is present is a Class
28 X felony for which the sentence shall be a term of
29 imprisonment of not less than 20 years and not more
30 than 80 years;
31 (A-5) an attempt to commit first degree murder
32 of an emergency medical technician - ambulance,
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1 emergency medical technician - intermediate,
2 emergency medical technician - paramedic, ambulance
3 driver, or other medical assistance or first aid
4 provider (i) while that provider was employed by a
5 municipality or other governmental unit, (ii) when
6 that provider was acting in the course of performing
7 official duties, when the defendant acted to prevent
8 the provider from performing official duties, or
9 when the defendant acted in retaliation for the
10 provider performing official duties, and (iii) when
11 the defendant knew or should have known that the
12 individual was an emergency medical technician -
13 ambulance, emergency medical technician -
14 intermediate, emergency medical technician -
15 paramedic, ambulance driver, or other medical
16 assistant or first aid provider, is a Class X felony
17 for which the sentence shall be a term of
18 imprisonment of not less than 20 years and not more
19 than 80 years;
20 (B) an attempt to commit first degree murder
21 while armed with a firearm is a Class X felony for
22 which 15 years shall be added to the term of
23 imprisonment imposed by the court;
24 (C) an attempt to commit first degree murder
25 during which the person personally discharged a
26 firearm is a Class X felony for which 20 years shall
27 be added to the term of imprisonment imposed by the
28 court;
29 (D) an attempt to commit first degree murder
30 during which the person personally discharged a
31 firearm that proximately caused great bodily harm,
32 permanent disability, permanent disfigurement, or
33 death to another person, is a Class X felony for
34 which 25 years or up to a term of natural life shall
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1 be added to the term of imprisonment imposed by the
2 court.
3 (2) the sentence for attempt to commit a Class X
4 felony is the sentence for a Class 1 felony;
5 (3) the sentence for attempt to commit a Class 1
6 felony is the sentence for a Class 2 felony;
7 (4) the sentence for attempt to commit a Class 2
8 felony is the sentence for a Class 3 felony; and
9 (5) the sentence for attempt to commit any felony
10 other than those specified in subsections (1), (2), (3)
11 and (4) hereof is the sentence for a Class A misdemeanor.
12 (Source: P.A. 91-404, eff. 1-1-00; 91-696, eff. 4-13-00.)
13 (720 ILCS 5/9-1) (from Ch. 38, par. 9-1)
14 Sec. 9-1. First degree Murder - Death penalties -
15 Exceptions - Separate Hearings - Proof - Findings - Appellate
16 procedures - Reversals.
17 (a) A person who kills an individual without lawful
18 justification commits first degree murder if, in performing
19 the acts which cause the death:
20 (1) he either intends to kill or do great bodily
21 harm to that individual or another, or knows that such
22 acts will cause death to that individual or another; or
23 (2) he knows that such acts create a strong
24 probability of death or great bodily harm to that
25 individual or another; or
26 (3) he is attempting or committing a forcible
27 felony other than second degree murder.
28 (b) Aggravating Factors. A defendant:
29 (i) who at the time of the commission of the
30 offense has attained the age of 18 or more; and
31 (ii) who has been found guilty of first degree
32 murder; and
33 (iii) whose guilt was not, in the
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1 determination of the court, based solely upon the
2 uncorroborated testimony of one eyewitness, of one
3 accomplice, or of one incarcerated informant;
4 may be sentenced to death if:
5 (1) the murdered individual was a peace officer or
6 fireman killed in the course of performing his official
7 duties, to prevent the performance of his official
8 duties, or in retaliation for performing his official
9 duties, and the defendant knew or should have known that
10 the murdered individual was a peace officer or fireman;
11 or
12 (2) the murdered individual was an employee of an
13 institution or facility of the Department of Corrections,
14 or any similar local correctional agency, killed in the
15 course of performing his official duties, to prevent the
16 performance of his official duties, or in retaliation for
17 performing his official duties, or the murdered
18 individual was an inmate at such institution or facility
19 and was killed on the grounds thereof, or the murdered
20 individual was otherwise present in such institution or
21 facility with the knowledge and approval of the chief
22 administrative officer thereof; or
23 (3) the defendant has been convicted of murdering
24 two or more individuals under subsection (a) of this
25 Section or under any law of the United States or of any
26 state which is substantially similar to subsection (a) of
27 this Section regardless of whether the deaths occurred
28 as the result of the same act or of several related or
29 unrelated acts so long as the deaths were the result of
30 either an intent to kill more than one person or of
31 separate acts which the defendant knew would cause death
32 or create a strong probability of death or great bodily
33 harm to the murdered individual or another; or
34 (4) (blank)the murdered individual was killed as a
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1 result of the hijacking of an airplane, train, ship, bus
2 or other public conveyance; or
3 (5) (blank)the defendant committed the murder
4 pursuant to a contract, agreement or understanding by
5 which he was to receive money or anything of value in
6 return for committing the murder or procured another to
7 commit the murder for money or anything of value; or
8 (6) (blank)the murdered individual was killed in
9 the course of another felony if:
10 (a) the murdered individual:
11 (i) was actually killed by the defendant,
12 or
13 (ii) received physical injuries
14 personally inflicted by the defendant
15 substantially contemporaneously with physical
16 injuries caused by one or more persons for
17 whose conduct the defendant is legally
18 accountable under Section 5-2 of this Code, and
19 the physical injuries inflicted by either the
20 defendant or the other person or persons for
21 whose conduct he is legally accountable caused
22 the death of the murdered individual; and
23 (b) in performing the acts which caused the
24 death of the murdered individual or which resulted
25 in physical injuries personally inflicted by the
26 defendant on the murdered individual under the
27 circumstances of subdivision (ii) of subparagraph
28 (a) of paragraph (6) of subsection (b) of this
29 Section, the defendant acted with the intent to kill
30 the murdered individual or with the knowledge that
31 his acts created a strong probability of death or
32 great bodily harm to the murdered individual or
33 another; and
34 (c) the other felony was one of the following:
-20- LRB093 09562 RLC 09800 b
1 armed robbery, armed violence, robbery, predatory
2 criminal sexual assault of a child, aggravated
3 criminal sexual assault, aggravated kidnapping,
4 aggravated vehicular hijacking, forcible detention,
5 arson, aggravated arson, aggravated stalking,
6 burglary, residential burglary, home invasion,
7 calculated criminal drug conspiracy as defined in
8 Section 405 of the Illinois Controlled Substances
9 Act, streetgang criminal drug conspiracy as defined
10 in Section 405.2 of the Illinois Controlled
11 Substances Act, or the attempt to commit any of the
12 felonies listed in this subsection (c); or
13 (7) (blank)the murdered individual was under 12
14 years of age and the death resulted from exceptionally
15 brutal or heinous behavior indicative of wanton cruelty;
16 or
17 (8) the defendant committed the murder with intent
18 to prevent the murdered individual from testifying or
19 participating in any criminal investigation or
20 prosecution or giving material assistance to the State in
21 any investigation or prosecution, either against the
22 defendant or another; or the defendant committed the
23 murder because the murdered individual was a witness or
24 participated in any prosecution or gave material
25 assistance to the State in any investigation or
26 prosecution, either against the defendant or another; or
27 (9) (blank)the defendant, while committing an
28 offense punishable under Sections 401, 401.1, 401.2, 405,
29 405.2, 407 or 407.1 or subsection (b) of Section 404 of
30 the Illinois Controlled Substances Act, or while engaged
31 in a conspiracy or solicitation to commit such offense,
32 intentionally killed an individual or counseled,
33 commanded, induced, procured or caused the intentional
34 killing of the murdered individual; or
-21- LRB093 09562 RLC 09800 b
1 (10) (blank)the defendant was incarcerated in an
2 institution or facility of the Department of Corrections
3 at the time of the murder, and while committing an
4 offense punishable as a felony under Illinois law, or
5 while engaged in a conspiracy or solicitation to commit
6 such offense, intentionally killed an individual or
7 counseled, commanded, induced, procured or caused the
8 intentional killing of the murdered individual; or
9 (11) (blank)the murder was committed in a cold,
10 calculated and premeditated manner pursuant to a
11 preconceived plan, scheme or design to take a human life
12 by unlawful means, and the conduct of the defendant
13 created a reasonable expectation that the death of a
14 human being would result therefrom; or
15 (12) (blank)the murdered individual was an
16 emergency medical technician - ambulance, emergency
17 medical technician - intermediate, emergency medical
18 technician - paramedic, ambulance driver, or other
19 medical assistance or first aid personnel, employed by a
20 municipality or other governmental unit, killed in the
21 course of performing his official duties, to prevent the
22 performance of his official duties, or in retaliation for
23 performing his official duties, and the defendant knew or
24 should have known that the murdered individual was an
25 emergency medical technician - ambulance, emergency
26 medical technician - intermediate, emergency medical
27 technician - paramedic, ambulance driver, or other
28 medical assistance or first aid personnel; or
29 (13) (blank)the defendant was a principal
30 administrator, organizer, or leader of a calculated
31 criminal drug conspiracy consisting of a hierarchical
32 position of authority superior to that of all other
33 members of the conspiracy, and the defendant counseled,
34 commanded, induced, procured, or caused the intentional
-22- LRB093 09562 RLC 09800 b
1 killing of the murdered person; or
2 (14) the murder was intentional and involved the
3 infliction of torture. For the purpose of this Section
4 torture means the infliction of or subjection to extreme
5 physical pain, motivated by an intent to increase or
6 prolong the pain, suffering or agony of the victim; or
7 (15) (blank)the murder was committed as a result
8 of the intentional discharge of a firearm by the
9 defendant from a motor vehicle and the victim was not
10 present within the motor vehicle; or
11 (16) (blank)the murdered individual was 60 years
12 of age or older and the death resulted from exceptionally
13 brutal or heinous behavior indicative of wanton cruelty;
14 or
15 (17) (blank)the murdered individual was a disabled
16 person and the defendant knew or should have known that
17 the murdered individual was disabled. For purposes of
18 this paragraph (17), "disabled person" means a person who
19 suffers from a permanent physical or mental impairment
20 resulting from disease, an injury, a functional disorder,
21 or a congenital condition that renders the person
22 incapable of adequately providing for his or her own
23 health or personal care; or
24 (18) (blank)the murder was committed by reason of
25 any person's activity as a community policing volunteer
26 or to prevent any person from engaging in activity as a
27 community policing volunteer; or
28 (19) (blank)the murdered individual was subject to
29 an order of protection and the murder was committed by a
30 person against whom the same order of protection was
31 issued under the Illinois Domestic Violence Act of 1986;
32 or
33 (20) (blank)the murdered individual was known by
34 the defendant to be a teacher or other person employed in
-23- LRB093 09562 RLC 09800 b
1 any school and the teacher or other employee is upon the
2 grounds of a school or grounds adjacent to a school, or
3 is in any part of a building used for school purposes; or
4 (21) (blank)the murder was committed by the
5 defendant in connection with or as a result of the
6 offense of terrorism as defined in Section 29D-30 of this
7 Code.
8 For the purpose of this Section:
9 "Torture" means the intentional and depraved infliction
10 of extreme physical pain for a prolonged period of time prior
11 to the victim's death.
12 "Depraved" means the defendant relished the infliction of
13 extreme physical pain upon the victim evidencing debasement
14 or perversion or that the defendant evidenced a sense of
15 pleasure in the infliction of extreme physical pain.
16 "Participating in any criminal investigation or
17 prosecution" is intended to include those appearing in the
18 proceedings in any capacity, such as trial judges,
19 prosecutors, defense attorneys, investigators, witnesses, or
20 jurors.
21 (c) Consideration of accomplice or informant testimony
22 and factors in Aggravation and Mitigation.
23 When the sentence of death is being sought by the State,
24 the court shall consider, or shall instruct the jury to
25 consider, that the testimony of an accomplice or incarcerated
26 informant who may provide evidence against a defendant for
27 pay, immunity from punishment, or personal advantage must be
28 examined and weighed with greater care than the testimony of
29 an ordinary witness. Whether the accomplice or informant's
30 testimony has been affected by interest or prejudice against
31 the defendant must be determined. In making the
32 determination, the jury must consider (i) whether the
33 accomplice or incarcerated informant has received anything,
34 including pay, immunity from prosecution, leniency in
-24- LRB093 09562 RLC 09800 b
1 prosecution, or personal advantage, in exchange for
2 testimony, (ii) any other case in which the accomplice or
3 informant testified or offered statements against an
4 individual but was not called, and whether the statements
5 were admitted in the case, and whether the accomplice or
6 informant received any deal, promise, inducement, or benefit
7 in exchange for that testimony or statement, (iii) whether
8 the accomplice or informant has ever changed his or her
9 testimony, (iv) the criminal history of the accomplice or
10 informant, and (v) any other evidence relevant to the
11 credibility of the accomplice or informant.
12 The court shall also consider, or shall also instruct the
13 jury to consider, any aggravating and any mitigating factors
14 which are relevant to the imposition of the death penalty.
15 Before the jury makes a determination with respect to the
16 imposition of the death penalty, the court shall also
17 instruct the jury of the applicable alternative sentences
18 under Chapter V of the Unified Code of Corrections that the
19 court may impose for first degree murder if a jury
20 determination precludes the death sentence. Aggravating
21 factors may include but need not be limited to those factors
22 set forth in subsection (b). Mitigating factors may include
23 but need not be limited to the following:
24 (1) the defendant has no significant history of
25 prior criminal activity;
26 (2) the murder was committed while the defendant
27 was under the influence of extreme mental or emotional
28 disturbance, although not such as to constitute a defense
29 to prosecution;
30 (3) the murdered individual was a participant in
31 the defendant's homicidal conduct or consented to the
32 homicidal act;
33 (4) the defendant acted under the compulsion of
34 threat or menace of the imminent infliction of death or
-25- LRB093 09562 RLC 09800 b
1 great bodily harm;
2 (5) the defendant was not personally present during
3 commission of the act or acts causing death;.
4 (6) the defendant's background includes a history
5 of extreme emotional or physical abuse;
6 (7) the defendant suffers from a reduced mental
7 capacity.
8 (d) Separate sentencing hearing.
9 Where requested by the State, the court shall conduct a
10 separate sentencing proceeding to determine the existence of
11 factors set forth in subsection (b) and to consider any
12 aggravating or mitigating factors as indicated in subsection
13 (c). The proceeding shall be conducted:
14 (1) before the jury that determined the defendant's
15 guilt; or
16 (2) before a jury impanelled for the purpose of the
17 proceeding if:
18 A. the defendant was convicted upon a plea of
19 guilty; or
20 B. the defendant was convicted after a trial
21 before the court sitting without a jury; or
22 C. the court for good cause shown discharges
23 the jury that determined the defendant's guilt; or
24 (3) before the court alone if the defendant waives
25 a jury for the separate proceeding.
26 (e) Evidence and Argument.
27 During the proceeding any information relevant to any of
28 the factors set forth in subsection (b) may be presented by
29 either the State or the defendant under the rules governing
30 the admission of evidence at criminal trials. Any
31 information relevant to any additional aggravating factors or
32 any mitigating factors indicated in subsection (c) may be
33 presented by the State or defendant regardless of its
34 admissibility under the rules governing the admission of
-26- LRB093 09562 RLC 09800 b
1 evidence at criminal trials. The defendant shall be given the
2 opportunity, personally or through counsel, to make a
3 statement that is not subject to cross-examination. If the
4 proceeding is before a jury, the defendant's statement shall
5 be reduced to writing in advance and submitted to the court
6 and the State, so that the court may rule upon any
7 evidentiary objection with respect to admissibility of the
8 statement. The State and the defendant shall be given fair
9 opportunity to rebut any information received at the hearing.
10 (f) Proof.
11 The burden of proof of establishing the existence of any
12 of the factors set forth in subsection (b) is on the State
13 and shall not be satisfied unless established beyond a
14 reasonable doubt.
15 (g) Procedure - Jury.
16 If at the separate sentencing proceeding the jury finds
17 that none of the factors set forth in subsection (b) exists,
18 the court shall sentence the defendant to a term of
19 imprisonment under Chapter V of the Unified Code of
20 Corrections. If there is a unanimous finding by the jury
21 that one or more of the factors set forth in subsection (b)
22 exist, the jury shall consider aggravating and mitigating
23 factors as instructed by the court and shall determine
24 whether the sentence of death shall be imposed. If the jury
25 determines unanimously, after weighing the factors in
26 aggravation and mitigation, that death is the appropriate
27 sentence and the court concurs with the jury determination
28 that there are no mitigating factors sufficient to preclude
29 the imposition of the death sentence, the court shall
30 sentence the defendant to death. If the court does not concur
31 with the jury determination that death is the appropriate
32 sentence, the court shall set forth reasons in writing and
33 shall then sentence the defendant to a term of natural life
34 imprisonment under Chapter V of the Unified Code of
-27- LRB093 09562 RLC 09800 b
1 Corrections.
2 IfUnless the jury determines unanimously, after weighing
3 the factors in aggravation and mitigation, that death is not
4 the appropriate sentence,finds that there are no mitigating
5 factors sufficient to preclude the imposition of the death
6 sentence the court shall sentence the defendant to a term of
7 natural life imprisonment under Chapter V of the Unified Code
8 of Corrections.
9 (h) Procedure - No Jury.
10 In a proceeding before the court alone, if the court
11 finds that none of the factors found in subsection (b)
12 exists, the court shall sentence the defendant to a term of
13 imprisonment under Chapter V of the Unified Code of
14 Corrections.
15 If the Court determines that one or more of the factors
16 set forth in subsection (b) exists, the Court shall consider
17 any aggravating and mitigating factors as indicated in
18 subsection (c). If the Court determines, after weighing the
19 factors in aggravation and mitigation, that death is the
20 appropriate sentencethat there are no mitigating factors
21 sufficient to preclude the imposition of the death sentence,
22 the Court shall sentence the defendant to death.
23 IfUnless the court finds that there are no mitigating
24 factors sufficient to preclude the imposition of the sentence
25 of death is not the appropriate sentence, the court shall
26 sentence the defendant to a term of natural life imprisonment
27 under Chapter V of the Unified Code of Corrections.
28 (i) Appellate Procedure.
29 The conviction and sentence of death shall be subject to
30 automatic review by the Supreme Court. Such review shall be
31 in accordance with rules promulgated by the Supreme Court.
32 Upon the request of the defendant, the Supreme Court must
33 determine whether the sentence was imposed due to some
34 arbitrary factor; whether an independent weighing of the
-28- LRB093 09562 RLC 09800 b
1 aggravating and mitigating circumstances indicates death was
2 the proper sentence; and whether the sentence of death was
3 excessive or disproportionate to the penalty imposed in
4 similar cases. The Supreme Court may order the collection of
5 data and information to support the review required by this
6 subsection (i).
7 (j) Disposition of reversed death sentence.
8 In the event that the death penalty in this Act is held
9 to be unconstitutional by the Supreme Court of the United
10 States or of the State of Illinois, any person convicted of
11 first degree murder shall be sentenced by the court to a term
12 of imprisonment under Chapter V of the Unified Code of
13 Corrections.
14 In the event that any death sentence pursuant to the
15 sentencing provisions of this Section is declared
16 unconstitutional by the Supreme Court of the United States or
17 of the State of Illinois, the court having jurisdiction over
18 a person previously sentenced to death shall cause the
19 defendant to be brought before the court, and the court shall
20 sentence the defendant to a term of imprisonment under
21 Chapter V of the Unified Code of Corrections.
22 (k) Judges trained to try capital cases.
23 The chief judge of the circuit shall require each judge
24 assigned to try capital cases in the circuit to receive
25 periodic training in the following areas, and shall retain
26 experts on these subjects to conduct training and prepare
27 training manuals on those topics:
28 (1) The risks of false testimony by in-custody
29 informants.
30 (2) The risks of false testimony by accomplice
31 witnesses.
32 (3) The dangers of tunnel vision or confirmatory
33 bias.
34 (4) The risks of wrongful convictions in homicide
-29- LRB093 09562 RLC 09800 b
1 cases.
2 (5) Police investigative and interrogation methods.
3 (6) Police investigating and reporting of
4 exculpatory evidence.
5 (7) Forensic evidence.
6 (8) The risks of false confessions.
7 (l) Prosecutors and defense attorneys training in
8 capital cases.
9 Each prosecutor and defense attorney certified by the
10 Illinois Supreme Court under Supreme Court Rule 714 as a
11 member of the Capital Litigation Trial Bar shall receive
12 periodic training in the following areas, and the Supreme
13 Court shall retain experts on these subjects to conduct
14 training and prepare training manuals on those topics:
15 (1) The risks of false testimony by in-custody
16 informants.
17 (2) The risks of false testimony by accomplice
18 witnesses.
19 (3) The dangers of tunnel vision or confirmatory
20 bias.
21 (4) The risks of wrongful convictions in homicide
22 cases.
23 (5) Police investigative and interrogation methods.
24 (6) Police investigating and reporting of
25 exculpatory evidence.
26 (7) Forensic evidence.
27 (8) The risks of false confessions.
28 (Source: P.A. 91-357, eff. 7-29-99; 91-434, eff. 1-1-00;
29 92-854, eff. 12-5-02.)
30 (720 ILCS 5/14-3) (from Ch. 38, par. 14-3)
31 Sec. 14-3. Exemptions. The following activities shall
32 be exempt from the provisions of this Article:
33 (a) Listening to radio, wireless and television
-30- LRB093 09562 RLC 09800 b
1 communications of any sort where the same are publicly made;
2 (b) Hearing conversation when heard by employees of any
3 common carrier by wire incidental to the normal course of
4 their employment in the operation, maintenance or repair of
5 the equipment of such common carrier by wire so long as no
6 information obtained thereby is used or divulged by the
7 hearer;
8 (c) Any broadcast by radio, television or otherwise
9 whether it be a broadcast or recorded for the purpose of
10 later broadcasts of any function where the public is in
11 attendance and the conversations are overheard incidental to
12 the main purpose for which such broadcasts are then being
13 made;
14 (d) Recording or listening with the aid of any device to
15 any emergency communication made in the normal course of
16 operations by any federal, state or local law enforcement
17 agency or institutions dealing in emergency services,
18 including, but not limited to, hospitals, clinics, ambulance
19 services, fire fighting agencies, any public utility,
20 emergency repair facility, civilian defense establishment or
21 military installation;
22 (e) Recording the proceedings of any meeting required to
23 be open by the Open Meetings Act, as amended;
24 (f) Recording or listening with the aid of any device to
25 incoming telephone calls of phone lines publicly listed or
26 advertised as consumer "hotlines" by manufacturers or
27 retailers of food and drug products. Such recordings must be
28 destroyed, erased or turned over to local law enforcement
29 authorities within 24 hours from the time of such recording
30 and shall not be otherwise disseminated. Failure on the part
31 of the individual or business operating any such recording or
32 listening device to comply with the requirements of this
33 subsection shall eliminate any civil or criminal immunity
34 conferred upon that individual or business by the operation
-31- LRB093 09562 RLC 09800 b
1 of this Section;
2 (g) With prior notification to the State's Attorney of
3 the county in which it is to occur, recording or listening
4 with the aid of any device to any conversation where a law
5 enforcement officer, or any person acting at the direction of
6 law enforcement, is a party to the conversation and has
7 consented to it being intercepted or recorded under
8 circumstances where the use of the device is necessary for
9 the protection of the law enforcement officer or any person
10 acting at the direction of law enforcement, in the course of
11 an investigation of a forcible felony, a felony violation of
12 the Illinois Controlled Substances Act, a felony violation of
13 the Cannabis Control Act, or any "streetgang related" or
14 "gang-related" felony as those terms are defined in the
15 Illinois Streetgang Terrorism Omnibus Prevention Act. Any
16 recording or evidence derived as the result of this exemption
17 shall be inadmissible in any proceeding, criminal, civil or
18 administrative, except (i) where a party to the conversation
19 suffers great bodily injury or is killed during such
20 conversation, or (ii) when used as direct impeachment of a
21 witness concerning matters contained in the interception or
22 recording. The Director of the Department of State Police
23 shall issue regulations as are necessary concerning the use
24 of devices, retention of tape recordings, and reports
25 regarding their use;
26 (g-5) With approval of the State's Attorney of the
27 county in which it is to occur, recording or listening with
28 the aid of any device to any conversation where a law
29 enforcement officer, or any person acting at the direction of
30 law enforcement, is a party to the conversation and has
31 consented to it being intercepted or recorded in the course
32 of an investigation of any offense defined in Article 29D of
33 this Code. In all such cases, an application for an order
34 approving the previous or continuing use of an eavesdropping
-32- LRB093 09562 RLC 09800 b
1 device must be made within 48 hours of the commencement of
2 such use. In the absence of such an order, or upon its
3 denial, any continuing use shall immediately terminate. The
4 Director of State Police shall issue rules as are necessary
5 concerning the use of devices, retention of tape recordings,
6 and reports regarding their use.
7 Any recording or evidence obtained or derived in the
8 course of an investigation of any offense defined in Article
9 29D of this Code shall, upon motion of the State's Attorney
10 or Attorney General prosecuting any violation of Article 29D,
11 be reviewed in camera with notice to all parties present by
12 the court presiding over the criminal case, and, if ruled by
13 the court to be relevant and otherwise admissible, it shall
14 be admissible at the trial of the criminal case.
15 This subsection (g-5) is inoperative on and after January
16 1, 2005. No conversations recorded or monitored pursuant to
17 this subsection (g-5) shall be inadmissable in a court of law
18 by virtue of the repeal of this subsection (g-5) on January
19 1, 2005.
20 (h) Recordings made simultaneously with a video
21 recording of an oral conversation between a peace officer,
22 who has identified his or her office, and a person stopped
23 for an investigation of an offense under the Illinois Vehicle
24 Code;
25 (i) Recording of a conversation made by or at the
26 request of a person, not a law enforcement officer or agent
27 of a law enforcement officer, who is a party to the
28 conversation, under reasonable suspicion that another party
29 to the conversation is committing, is about to commit, or has
30 committed a criminal offense against the person or a member
31 of his or her immediate household, and there is reason to
32 believe that evidence of the criminal offense may be obtained
33 by the recording; and
34 (j) The use of a telephone monitoring device by either
-33- LRB093 09562 RLC 09800 b
1 (1) a corporation or other business entity engaged in
2 marketing or opinion research or (2) a corporation or other
3 business entity engaged in telephone solicitation, as defined
4 in this subsection, to record or listen to oral telephone
5 solicitation conversations or marketing or opinion research
6 conversations by an employee of the corporation or other
7 business entity when:
8 (i) the monitoring is used for the purpose of
9 service quality control of marketing or opinion research
10 or telephone solicitation, the education or training of
11 employees or contractors engaged in marketing or opinion
12 research or telephone solicitation, or internal research
13 related to marketing or opinion research or telephone
14 solicitation; and
15 (ii) the monitoring is used with the consent of at
16 least one person who is an active party to the marketing
17 or opinion research conversation or telephone
18 solicitation conversation being monitored.
19 No communication or conversation or any part, portion, or
20 aspect of the communication or conversation made, acquired,
21 or obtained, directly or indirectly, under this exemption
22 (j), may be, directly or indirectly, furnished to any law
23 enforcement officer, agency, or official for any purpose or
24 used in any inquiry or investigation, or used, directly or
25 indirectly, in any administrative, judicial, or other
26 proceeding, or divulged to any third party.
27 When recording or listening authorized by this subsection
28 (j) on telephone lines used for marketing or opinion research
29 or telephone solicitation purposes results in recording or
30 listening to a conversation that does not relate to marketing
31 or opinion research or telephone solicitation; the person
32 recording or listening shall, immediately upon determining
33 that the conversation does not relate to marketing or opinion
34 research or telephone solicitation, terminate the recording
-34- LRB093 09562 RLC 09800 b
1 or listening and destroy any such recording as soon as is
2 practicable.
3 Business entities that use a telephone monitoring or
4 telephone recording system pursuant to this exemption (j)
5 shall provide current and prospective employees with notice
6 that the monitoring or recordings may occur during the course
7 of their employment. The notice shall include prominent
8 signage notification within the workplace.
9 Business entities that use a telephone monitoring or
10 telephone recording system pursuant to this exemption (j)
11 shall provide their employees or agents with access to
12 personal-only telephone lines which may be pay telephones,
13 that are not subject to telephone monitoring or telephone
14 recording.
15 For the purposes of this subsection (j), "telephone
16 solicitation" means a communication through the use of a
17 telephone by live operators:
18 (i) soliciting the sale of goods or services;
19 (ii) receiving orders for the sale of goods or
20 services;
21 (iii) assisting in the use of goods or services; or
22 (iv) engaging in the solicitation, administration,
23 or collection of bank or retail credit accounts.
24 For the purposes of this subsection (j), "marketing or
25 opinion research" means a marketing or opinion research
26 interview conducted by a live telephone interviewer engaged
27 by a corporation or other business entity whose principal
28 business is the design, conduct, and analysis of polls and
29 surveys measuring the opinions, attitudes, and responses of
30 respondents toward products and services, or social or
31 political issues, or both; and
32 (k) Recording the interrogation or statement of a person
33 in custody for first degree murder or a witness in a first
34 degree murder case, when the person in custody or witness
-35- LRB093 09562 RLC 09800 b
1 knows the interrogation is being conducted by a law
2 enforcement officer or prosecutor. For the purposes of this
3 Section, "interrogation of a person in custody" means any
4 interrogation during which the person being interrogated is
5 not free to leave and the person is being asked questions
6 relevant to the first degree murder investigation.
7 (Source: P.A. 91-357, eff. 7-29-99; 92-854, eff. 12-5-02.)
8 Section 35. The Code of Criminal Procedure of 1963 is
9 amended by changing Sections 114-11, 114-13, 115-19, 116-3,
10 122-1, and 122-2.1 and by adding Sections 103-10, 103-11,
11 108-15, 113-8, 114-15, 114-16, 115-16.1, and 115-21 and
12 Articles 106F, 106G, and 107A as follows:
13 (725 ILCS 5/103-10 new)
14 Sec. 103-10. Ascertaining suspect's mental capacity in
15 homicide cases. Before conducting an interrogation of a
16 suspect in a homicide case, the peace officer shall make a
17 reasonable attempt to determine the suspect's mental capacity
18 and if the suspect reasonably appears to the officer to be
19 mentally retarded, the peace officer may only ask the suspect
20 nonleading questions and shall be prohibited from conveying
21 to the suspect the impression that the officer believes that
22 the suspect is guilty of the homicide.
23 (725 ILCS 5/103-11 new)
24 Sec. 103-11. Homicide cases; videotaping of statements.
25 If a peace officer interrogates a person suspected of an
26 offense under Article 9 of the Criminal Code of 1961 and if
27 any of the statements made by the suspect in response to the
28 peace officer's questions are not videotaped, the police
29 officer shall repeat the questions asked of the suspect and
30 videotape the questions and answers.
-36- LRB093 09562 RLC 09800 b
1 (725 ILCS 5/ Art. 106F heading new)
2 ARTICLE 106F. ELECTRONIC RECORDING OF WITNESS
3 INTERVIEWS
4 (725 ILCS 5/106F-5 new)
5 Sec. 106F-5. Electronic recording of witness interviews
6 in homicide cases. A peace officer who interviews a
7 significant witness in a homicide case shall electronically
8 record the interview conducted of the significant witness if
9 it is reasonably foreseeable that the testimony may be
10 challenged at trial.
11 (725 ILCS 5/106G Art. 106G heading new)
12 ARTICLE 106G. VIDEOTAPING OF CUSTODIAL INTERROGATIONS IN
13 HOMICIDE CASES
14 (725 ILCS 5/106G-5 new)
15 Sec. 106G-5. Videotaping of custodial interrogations in
16 homicide cases.
17 (a) In this Section:
18 "Custodial interrogation" means any interrogation during
19 which the person being interrogated is not free to leave and
20 a question is asked that is designed to elicit an
21 incriminating response.
22 "Place of detention" means a facility under the control
23 of a law enforcement agency.
24 (b) A custodial interrogation at a police station or
25 other place of detention of a suspect in a homicide case
26 shall be videotaped. The videotaping shall not be limited to
27 the statements made by the suspect following the
28 interrogation but shall include the entire interrogation
29 process.
30 (c) In circumstances when videotaping the suspect is not
31 practical, an audiotape of the custodial interrogation may be
-37- LRB093 09562 RLC 09800 b
1 made as an alternative to a video recording. Police
2 investigators in homicide cases shall carry tape recorders to
3 audiotape custodial interrogations at places other than
4 police stations or places of detention.
5 (725 ILCS 5/Art. 107A heading new)
6 ARTICLE 107A. LINEUP AND PHOTO SPREAD PROCEDURES
7 IN HOMICIDE CASES
8 (725 ILCS 5/107A-5 new)
9 Sec. 107A-5. Lineup and photo spread procedures in
10 homicide cases.
11 (a) For a homicide offense alleged to have been
12 committed on or after the effective date of this amendatory
13 Act of the 93rd General Assembly, the lineup or photo spread
14 shall be conducted to insure that all persons in the lineup
15 or photo spread fit the general description of the suspect.
16 (b) Whenever possible, the lineup or photo spread
17 administrator in a homicide case shall be someone who is not
18 aware of which member of the lineup or photo spread is the
19 suspect in the case. Prior to presenting the lineup or photo
20 spread, the lineup or photo spread administrator shall:
21 (1) inform the witness that the perpetrator may or
22 may not be among those shown, and the witness should not
23 feel compelled to make an identification; and
24 (2) inform the witness that he or she should not
25 assume that the lineup or photo spread administrator
26 knows which person is the suspect in the case.
27 (c) During the lineup or photo spread, the lineup or
28 photo spread administrator shall ask the witness to state in
29 his or her own words how sure he or she is that the person
30 identified is the actual suspect, and make the witness's
31 words part of the record.
32 (d) For any first degree murder alleged to have been
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1 committed on or after the effective date of this amendatory
2 Act of the 93rd General Assembly the lineup identification
3 procedure shall be presented in the sequential method, in
4 which a witness is shown lineup participants one at a time.
5 The witness shall be requested to state whether the
6 individual shown is the perpetrator of the first degree
7 murder, prior to viewing the next lineup participant. Only
8 one member of the lineup shall be a suspect, and the
9 remainder shall be "fillers" who are not suspects, but fit
10 the general description of the suspect.
11 (e) This Section applies to any live lineups in homicide
12 cases that are composed and presented at a police station,
13 and to all photo lineups in homicide cases regardless of
14 where presented.
15 (725 ILCS 5/108-15 new)
16 Sec. 108-15. Maintenance of evidence.
17 (a) A law enforcement agency shall list on schedules all
18 existing items of relevant evidence collected in a criminal
19 investigation, including exculpatory evidence, and the
20 location of that evidence.
21 (b) Each law enforcement agency must assign to specific
22 peace officers or employees of the law enforcement agency the
23 duty to maintain and list the evidence and the persons
24 assigned to this duty must certify their compliance with
25 subsection (a) to the prosecutor assigned to prosecute the
26 case.
27 (c) Each law enforcement agency must give copies of the
28 schedules to the prosecutor assigned to prosecute the case.
29 (d) The law enforcement agency must give the prosecutor
30 access to all investigatory materials in its possession.
31 (e) In this Section, "law enforcement agency" means the
32 Department of State Police, the Office of the county sheriff,
33 a municipal police department, or any other agency whose
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1 officers are vested by law to make arrests in criminal cases
2 and seize and maintain evidence for trial of a criminal case;
3 and "prosecutor" means a State's Attorney, assistant State's
4 Attorney, Attorney General, assistant or deputy Attorney
5 General, or a special assistant Attorney General or special
6 assistant State's Attorney who is assigned to prosecute a
7 criminal case.
8 (725 ILCS 5/113-8 new)
9 Sec. 113-8. Notice of intention to seek or decline the
10 death penalty; State Death Penalty Review Committee.
11 (a) State Death Penalty Review Committee. The State's
12 Attorney or Attorney General shall provide notice of the
13 State's intention to seek or decline the death penalty by
14 filing a Notice of Intent to Seek or Decline the Death
15 Penalty as soon as practicable. In no event shall the filing
16 of the notice be later than 120 days after arraignment,
17 unless, for good cause shown, the court directs otherwise. A
18 notice of intent to seek the death penalty shall also include
19 all of the statutory aggravating factors enumerated in
20 subsection (b) of Section 9-1 of the Criminal Code of 1961
21 which the State intends to introduce during the death penalty
22 sentencing hearing.
23 (b) The State's Attorney must also submit the decision
24 to seek the death penalty to the State Death Penalty Review
25 Committee for approval. The State Death Penalty Review
26 Committee is created effective January 1, 2004. The Review
27 Committee shall be composed of 5 voting members consisting of
28 the Attorney General or his or her designee, the State's
29 Attorney of Cook County or his or her designee, the president
30 of the Illinois State's Attorney's Association, a State's
31 Attorney appointed by the Governor, and a retired judge
32 appointed by the Governor. The Governor may appoint an
33 alternate member and shall only participate and vote in the
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1 event of a tie vote. The retired judge member shall have
2 experience in criminal law and preferably appellate review of
3 criminal cases. The Attorney General and Cook County State's
4 Attorney shall serve during their respective term of office.
5 The president of the State's Attorney's Association shall
6 serve for one year concurrent with the elected term as
7 president of the State's Attorney's Association. The State's
8 Attorney appointed by the Governor shall serve for one year
9 and the retired judge member shall serve for 4 years. The
10 alternate member shall serve at the pleasure of the Governor.
11 In the event of a vacancy of a member appointed by the
12 Governor, the appointment to fill the vacancy shall be made
13 in the same manner as the original appointment. The appointed
14 members shall serve until their successor is appointed and
15 qualified. The Attorney General or his or designee shall
16 serve as chairman.
17 (c) The State Death Penalty Review Committee must
18 develop standards to assist State's Attorneys in the exercise
19 of discretion in seeking the death penalty on a first degree
20 murder charge. The Review Committee must also approve a
21 State's Attorney's decision to seek the death penalty in a
22 first degree murder case. The review must include the
23 appropriateness of the sentence of death upon conviction and
24 whether the decision is consistent with the application of
25 the death penalty in other counties. The Review Committee
26 must consider information submitted by the State's Attorney
27 and defense counsel that is relevant to the review.
28 Information submitted that is not otherwise subject to
29 discovery at this stage of the court proceedings or for which
30 confidentiality is necessary for security of any individual,
31 is confidential and not subject to disclosure outside of the
32 Review Committee.
33 (d) The approval shall be pursuant to a vote of 3
34 members of the Committee; however, the Attorney General or a
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1 State's Attorney must recuse himself or herself from voting
2 on any case prosecuted by his or her office. The review and
3 comment is confidential and shall only be disclosed to:
4 (1) the submitting State's Attorney;
5 (2) the defendant's attorney; and
6 (3) the Governor, upon request, after the Supreme
7 Court has ordered the final execution date.
8 (e) The Attorney General and the Illinois State's
9 Attorneys Association shall adopt recommendations as to the
10 procedures that State's Attorneys should follow in deciding
11 whether or not to seek the death penalty in a first degree
12 murder case. The failure of a State's Attorney to follow the
13 adopted procedures is not a ground to have the case
14 decertified as a death penalty case or to have any death
15 penalty sentence vacated.
16 (725 ILCS 5/114-11) (from Ch. 38, par. 114-11)
17 Sec. 114-11. Motion to Suppress Confession.
18 (a) Prior to the trial of any criminal case a defendant
19 may move to suppress as evidence any confession given by him
20 on the ground that it was not voluntary.
21 (b) The motion shall be in writing and state facts
22 showing wherein the confession is involuntary.
23 (c) If the allegations of the motion state facts which,
24 if true, show that the confession was not voluntarily made
25 the court shall conduct a hearing into the merits of the
26 motion.
27 (d) The burden of going forward with the evidence and
28 the burden of proving that a confession was voluntary shall
29 be on the State. Objection to the failure of the State to
30 call all material witnesses on the issue of whether the
31 confession was voluntary must be made in the trial court.
32 (e) The motion shall be made only before a court with
33 jurisdiction to try the offense.
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1 (f) The issue of the admissibility of the confession
2 shall not be submitted to the jury. The circumstances
3 surrounding the making of the confession may be submitted to
4 the jury as bearing upon the credibility or the weight to be
5 given to the confession.
6 (g) The motion shall be made before trial unless
7 opportunity therefor did not exist or the defendant was not
8 aware of the grounds for the motion. If the motion is made
9 during trial, and the court determines that the motion is not
10 untimely, and the court conducts a hearing on the merits and
11 enters an order suppressing the confession, the court shall
12 terminate the trial with respect to every defendant who was a
13 party to the hearing and who was within the scope of the
14 order of suppression, without further proceedings, unless the
15 State files a written notice that there will be no
16 interlocutory appeal from such order of suppression. In the
17 event of such termination, the court shall proceed with the
18 trial of other defendants not thus affected. Such termination
19 of trial shall be proper and shall not bar subsequent
20 prosecution of the identical charges and defendants; however,
21 if after such termination the State fails to prosecute the
22 interlocutory appeal until a determination of the merits of
23 the appeal by the reviewing court, the termination shall be
24 improper within the meaning of subparagraph (a) (3) of
25 Section 3--4 of the "Criminal Code of 1961", approved July
26 28, 1961, as amended, and subsequent prosecution of such
27 defendants upon such charges shall be barred.
28 (h) In capital cases, the court may also conduct a
29 hearing pursuant to Section 115-21 on the admissibility of
30 the statement made by the defendant where the statement has
31 not been recorded by electronic video or audio, regardless of
32 whether the defense requests such a hearing.
33 (Source: P. A. 76-1096.)
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1 (725 ILCS 5/114-13) (from Ch. 38, par. 114-13)
2 Sec. 114-13. Discovery in criminal cases.
3 (a) Discovery procedures in criminal cases shall be in
4 accordance with Supreme Court Rules.
5 (b) Discovery deposition procedures applicable in cases
6 for which the death penalty may be imposed shall be in
7 accordance with Supreme Court Rules and this subsection (b),
8 unless the State has given notice of its intention not to
9 seek the death penalty.
10 (1) The intent of this subsection is to (i) ensure
11 that capital defendants receive fair and impartial trials
12 and sentencing hearings within the courts of this State
13 and (ii) minimize the occurrence of error to the maximum
14 extent feasible by identifying and correcting with due
15 promptness any error that may occur.
16 (2) A party may, with leave of court upon a showing
17 of good cause, take the discovery deposition upon oral
18 questions of any person disclosed as a witness as
19 provided by law or Supreme Court Rule. In determining
20 whether to allow a deposition, the court should consider
21 (i) the consequences to the party if the deposition is
22 not allowed, (ii) the complexities of the issues
23 involved, (iii) the complexity of the testimony of the
24 witness, and (iv) the other opportunities available to
25 the party to discover the information sought by
26 deposition. Under no circumstances, however, may the
27 defendant be deposed.
28 (3) The taking of depositions shall be in
29 accordance with rules providing for the taking of
30 depositions in civil actions, and the order for the
31 taking of a deposition may provide that any designated
32 books, papers, documents, or tangible objects, not
33 privileged, be produced at the same time and place.
34 (4) A defendant shall have no right to be
-44- LRB093 09562 RLC 09800 b
1 physically present at a discovery deposition. If there is
2 any concern regarding witness safety, the court may
3 require that the deposition be held in a place or manner
4 that will ensure the security of the witness. The court
5 may also issue protective orders to restrict the use and
6 disclosure of information provided by a witness.
7 (5) Absent good cause shown to the court,
8 depositions shall be completed within 90 days after the
9 disclosure of witnesses. The parties shall have the right
10 to compel depositions under this subsection by subpoena.
11 No witness may be deposed more than once, except by leave
12 of the court upon a showing of good cause.
13 (6) If the defendant is indigent, the costs of
14 taking depositions shall be paid by the county where the
15 criminal charge is initiated with reimbursement to the
16 county from the Capital Litigation Trust Fund. If the
17 defendant is not indigent, the costs shall be allocated
18 as in civil actions.
19 (Source: Laws 1963, p. 2836.)
20 (725 ILCS 5/114-15 new)
21 Sec. 114-15. Motion for genetic marker groupings
22 comparison analysis.
23 (a) A defendant may make a motion for a court order
24 before trial for comparison analysis by the Department of
25 State Police with those genetic marker groupings maintained
26 under subsection (f) of Section 5-4-3 of the Unified Code of
27 Corrections if the defendant meets all of the following
28 requirements:
29 (1) The defendant is charged with any offense.
30 (2) The defendant seeks for the Department of State
31 Police to identify genetic marker groupings from evidence
32 collected by criminal justice agencies pursuant to the
33 alleged offense.
-45- LRB093 09562 RLC 09800 b
1 (3) The defendant seeks comparison analysis of
2 genetic marker groupings of the evidence under
3 subdivision (2) to those of the defendant, to those of
4 other forensic evidence, and to those maintained under
5 subsection (f) of Section 5-4-3 of the Unified Code of
6 Corrections.
7 (4) Genetic marker grouping analysis must be
8 performed by a laboratory compliant with the quality
9 assurance standards required by the Department of State
10 Police for genetic marker grouping analysis comparisons.
11 (5) Reasonable notice of the motion shall be served
12 upon the State.
13 (b) The Department of State Police may promulgate rules
14 for the types of comparisons performed and the quality
15 assurance standards required for submission of genetic marker
16 groupings. The provisions of the Administrative Review Law
17 shall apply to all actions taken under the rules so
18 promulgated.
19 (725 ILCS 5/114-16 new)
20 Sec. 114-16. Motion to preclude death penalty based upon
21 mental retardation.
22 (a) A defendant charged with first degree murder may
23 make a motion prior to trial to preclude the imposition of
24 the death penalty based upon the mental retardation of the
25 defendant. The motion shall be in writing and shall state
26 facts to demonstrate the mental retardation of the defendant.
27 As used in this Section, "mental retardation" means:
28 (1) having significantly subaverage general
29 intellectual functioning as evidence by a functional
30 intelligence quotient (I.Q.) of 70 or below; and
31 (2) having deficits in adaptive behavior.
32 The mental retardation must have been manifested during the
33 developmental period, or by 18 years of age.
-46- LRB093 09562 RLC 09800 b
1 (b) Notwithstanding any provision of law to the
2 contrary, a defendant with mental retardation at the time of
3 committing first degree murder shall not be sentenced to
4 death.
5 (c) The burden of going forward with the evidence and
6 the burden of proving the defendant's mental retardation by a
7 preponderance of the evidence is upon the defendant. The
8 determination of whether the defendant was mentally retarded
9 at the time of the offense of first degree murder shall be
10 made by the court after a hearing.
11 (d) If the issue of mental retardation is raised prior
12 to trial and the court determines that the defendant is not a
13 person with mental retardation, the defendant shall be
14 entitled to offer evidence to the trier of fact of diminished
15 intellectual capacity as a mitigating circumstance pursuant
16 to clause (c)(7) of Section 9-1 of the Criminal Code of 1961.
17 (f) The determination by the trier of fact on the
18 defendant's motion shall not be appealable by interlocutory
19 appeal, but may be a basis of appeal by either the State or
20 defendant following the sentencing stage of the trial.
21 (725 ILCS 5/115-16.1 new)
22 Sec. 115-16.1. Witness qualification in first degree
23 murder trial.
24 (a) In a prosecution for first degree murder where the
25 State has given notice of its intention to seek the death
26 penalty, the prosecution must promptly notify the court and
27 the defendant's attorney of the intention to introduce
28 testimony at trial from a person who is in custody or who was
29 in custody at the time of the factual matters to which the
30 person will testify. The notice to the defendant's attorney
31 must include the identification, criminal history, and
32 background of the witness. The prosecution must also promptly
33 notify the defendant's attorney of any discussion,
-47- LRB093 09562 RLC 09800 b
1 inducement, benefit, or agreement between that witness and a
2 law enforcement agency, officer, or prosecutor for that
3 witness.
4 (b) After notice has been given to the court pursuant to
5 subsection (a), the court must prior to trial conduct an
6 evidentiary hearing to determine the reliability and
7 admissibility of the testimony of the witness. The
8 prosecution has the burden of proving by a preponderance of
9 the evidence the reliability of the testimony of the witness.
10 In making its determination, the court may consider:
11 (1) the specific statements or facts to which the
12 witness will testify;
13 (2) the time, place, and other circumstances
14 regarding the statements or facts to which the witness
15 will testify;
16 (3) any discussion, inducement, benefit, or
17 agreement between the witness and a law enforcement
18 agency or officer for that witness;
19 (4) the criminal history of the witness;
20 (5) whether the witness has ever recanted his or
21 her testimony;
22 (6) other criminal cases in which the witness has
23 testified;
24 (7) the presence or absence of any relationship
25 between the accused and the witness; and
26 (8) any other evidence relevant to the credibility
27 of the witness.
28 (725 ILCS 5/115-19)
29 Sec. 115-19. Polygraph.
30 (a) In the course of a criminal trial the court shall
31 not require, request, or suggest that the defendant submit to
32 a polygraphic detection deception test, commonly known as a
33 lie detector test, to questioning under the effect of
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1 thiopental sodium, or to any other test or questioning by
2 means of a mechanical device or chemical substance.
3 (b) The results of a polygraph examination are
4 inadmissable as evidence in a capital case both during the
5 trial of the case and during the separate sentencing hearing.
6 (Source: P.A. 89-234, eff. 1-1-96.)
7 (725 ILCS 5/115-21 new)
8 Sec. 115-21. Peace officer training. Each peace officer
9 involved in investigating a homicide case shall receive
10 periodic training in the following areas and each law
11 enforcement agency shall retain experts on these topics to
12 conduct the training and prepare training manuals for use by
13 peace officers:
14 (1) the risk of false testimony by in-custody
15 informants;
16 (2) the risks of false testimony by accomplice
17 witnesses;
18 (3) the dangers of tunnel vision or confirmatory bias;
19 (4) the risks of wrongful convictions in homicide cases;
20 (5) police investigative and interrogation methods;
21 (6) forensic evidence; and
22 (7) the risks of false confessions.
23 (725 ILCS 5/116-3)
24 Sec. 116-3. Motion for fingerprint or forensic testing
25 not available at trial regarding actual innocence.
26 (a) A defendant may make a motion before the trial court
27 that entered the judgment of conviction in his or her case
28 for the performance of fingerprint or forensic DNA testing,
29 including comparison analysis of genetic marker groupings of
30 the evidence collected by criminal justice agencies pursuant
31 to the alleged offense, to those of the defendant, to those
32 of other forensic evidence, and to those maintained under
-49- LRB093 09562 RLC 09800 b
1 subsection (f) of Section 5-4-3 of the Unified Code of
2 Corrections, on evidence that was secured in relation to the
3 trial which resulted in his or her conviction, but which was
4 not subject to the testing which is now requested because the
5 technology for the testing was not available at the time of
6 trial. Reasonable notice of the motion shall be served upon
7 the State.
8 (b) The defendant must present a prima facie case that:
9 (1) identity was the issue in the trial which
10 resulted in his or her conviction; and
11 (2) the evidence to be tested has been subject to a
12 chain of custody sufficient to establish that it has not
13 been substituted, tampered with, replaced, or altered in
14 any material aspect.
15 (c) The trial court shall allow the testing under
16 reasonable conditions designed to protect the State's
17 interests in the integrity of the evidence and the testing
18 process upon a determination that:
19 (1) the result of the testing has the scientific
20 potential to produce new, noncumulative evidence
21 materially relevant to the defendant's assertion of
22 actual innocence that significantly advances the
23 defendant's claim of innocence;
24 (2) the testing requested employs a scientific
25 method generally accepted within the relevant scientific
26 community.
27 (Source: P.A. 90-141, eff. 1-1-98.)
28 (725 ILCS 5/122-1) (from Ch. 38, par. 122-1)
29 Sec. 122-1. Petition in the trial court.
30 (a) Any person imprisoned in the penitentiary may
31 institute a proceeding under this Article if the personwho
32 asserts that:
33 (1) in the proceedings which resulted in his or her
-50- LRB093 09562 RLC 09800 b
1 conviction there was a substantial denial of his or her
2 rights under the Constitution of the United States or of
3 the State of Illinois or both; or
4 (2) the death penalty was imposed and there is
5 newly discovered evidence not available to the person at
6 the time of the proceeding that resulted in his or her
7 conviction that establishes the person's innocence.
8 (a-5) A proceeding under paragraph (2) of subsection (a)
9 may be commenced at any time after the person's conviction
10 notwithstanding any other provisions ofmay institute a
11 proceeding under this Article. In such a proceeding regarding
12 actual innocence, if the court determines the petition is
13 frivolous or is patently without merit, it shall dismiss the
14 petition in a written order, specifying the findings of fact
15 and conclusions of law it made in reaching its decision.
16 Such order of dismissal is a final judgment and shall be
17 served upon the petitioner by certified mail within 10 days
18 of its entry.
19 (b) The proceeding shall be commenced by filing with the
20 clerk of the court in which the conviction took place a
21 petition (together with a copy thereof) verified by
22 affidavit. Petitioner shall also serve another copy upon the
23 State's Attorney by any of the methods provided in Rule 7 of
24 the Supreme Court. The clerk shall docket the petition for
25 consideration by the court pursuant to Section 122-2.1 upon
26 his or her receipt thereof and bring the same promptly to the
27 attention of the court.
28 (c) Except as otherwise provided in subsection (a-5), if
29 the petitioner is under sentence of death, no proceedings
30 under this Article shall be commenced more than 6 months
31 after the issuance of the mandate by the Supreme Court
32 following affirmance of the defendant's direct appeal of the
33 trial court verdict. In all other cases, no proceedings
34 under this Article shall be commenced more than 6 months
-51- LRB093 09562 RLC 09800 b
1 after the denial of a petition for leave to appeal or the
2 date for filing such a petition if none is filed or more than
3 45 days after the defendant files his or her brief in the
4 appeal of the sentence before the Illinois Supreme Court (or
5 more than 45 days after the deadline for the filing of the
6 defendant's brief with the Illinois Supreme Court if no brief
7 is filed) or 3 years from the date of conviction, whichever
8 is sooner, unless the petitioner alleges facts showing that
9 the delay was not due to his or her culpable negligence.
10 (d) A person seeking relief by filing a petition under
11 this Section must specify in the petition or its heading that
12 it is filed under this Section. A trial court that has
13 received a petition complaining of a conviction or sentence
14 that fails to specify in the petition or its heading that it
15 is filed under this Section need not evaluate the petition to
16 determine whether it could otherwise have stated some grounds
17 for relief under this Article.
18 (e) A proceeding under this Article may not be commenced
19 on behalf of a defendant who has been sentenced to death
20 without the written consent of the defendant, unless the
21 defendant, because of a mental or physical condition, is
22 incapable of asserting his or her own claim.
23 (Source: P.A. 89-284, eff. 1-1-96; 89-609, eff. 1-1-97;
24 89-684, eff. 6-1-97; 90-14, eff. 7-1-97.)
25 (725 ILCS 5/122-2.1) (from Ch. 38, par. 122-2.1)
26 Sec. 122-2.1. (a) Within 90 days after the filing and
27 docketing of each petition, the court shall examine such
28 petition and enter an order thereon pursuant to this Section.
29 (1) If the petitioner is under sentence of death
30 and is without counsel and alleges that he is without
31 means to procure counsel, he shall state whether or not
32 he wishes counsel to be appointed to represent him. If
33 appointment of counsel is so requested, the court shall
-52- LRB093 09562 RLC 09800 b
1 appoint counsel if satisfied that the petitioner has no
2 means to procure counsel.
3 (2) If the petitioner is sentenced to imprisonment
4 and the court determines the petition is frivolous or is
5 patently without merit, it shall dismiss the petition in
6 a written order, specifying the findings of fact and
7 conclusions of law it made in reaching its decision.
8 Such order of dismissal is a final judgment and shall be
9 served upon the petitioner by certified mail within 10
10 days of its entry.
11 (b) If the petition is not dismissed pursuant to this
12 Section, the court shall order the petition to be docketed
13 for further consideration in accordance with Sections 122-4
14 through 122-6. If the petitioner is under sentence of death,
15 the court shall order the petition to be docketed for further
16 consideration and hearing within one year of the filing of
17 the petition.
18 (c) In considering a petition pursuant to this Section,
19 the court may examine the court file of the proceeding in
20 which the petitioner was convicted, any action taken by an
21 appellate court in such proceeding and any transcripts of
22 such proceeding.
23 (Source: P.A. 86-655; 87-904.)
24 Section 40. The State Appellate Defender Act is amended
25 by changing Section 10 as follows:
26 (725 ILCS 105/10) (from Ch. 38, par. 208-10)
27 Sec. 10. Powers and duties of State Appellate Defender.
28 (a) The State Appellate Defender shall represent
29 indigent persons on appeal in criminal and delinquent minor
30 proceedings, when appointed to do so by a court under a
31 Supreme Court Rule or law of this State.
32 (b) The State Appellate Defender shall submit a budget
-53- LRB093 09562 RLC 09800 b
1 for the approval of the State Appellate Defender Commission.
2 (c) The State Appellate Defender may:
3 (1) maintain a panel of private attorneys available
4 to serve as counsel on a case basis;
5 (2) establish programs, alone or in conjunction
6 with law schools, for the purpose of utilizing volunteer
7 law students as legal assistants;
8 (3) cooperate and consult with state agencies,
9 professional associations, and other groups concerning
10 the causes of criminal conduct, the rehabilitation and
11 correction of persons charged with and convicted of
12 crime, the administration of criminal justice, and, in
13 counties of less than 1,000,000 population, study,
14 design, develop and implement model systems for the
15 delivery of trial level defender services, and make an
16 annual report to the General Assembly;
17 (4) provide investigative services to appointed
18 counsel and county public defenders;
19 (5) in cases in which a death sentence is an
20 authorized disposition, provide trial counsel with the
21 assistance of expert witnesses, investigators, and
22 mitigation specialists from funds appropriated to the
23 State Appellate Defender specifically for that purpose by
24 the General Assembly. The Office of State Appellate
25 Defender shall not be appointed to serve as trial counsel
26 in capital cases.
27 (c-5) The Office of the State Appellate Defender shall
28 disseminate on a Statewide basis the names and business
29 addresses of licensed attorneys who are certified by the
30 Illinois Supreme Court as members of the Capital Litigation
31 Trial Bar under Supreme Court Rule 714.
32 (d) For each State fiscal year, the State Appellate
33 Defender shall appear before the General Assembly and request
34 appropriations to be made from the Capital Litigation Trust
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1 Fund to the State Treasurer for the purpose of providing
2 defense assistance in capital cases outside of Cook County.
3 The State Appellate Defender may appear before the General
4 Assembly at other times during the State's fiscal year to
5 request supplemental appropriations from the Trust Fund to
6 the State Treasurer.
7 (e) The requirement for reporting to the General
8 Assembly shall be satisfied by filing copies of the report
9 with the Speaker, the Minority Leader and the Clerk of the
10 House of Representatives and the President, the Minority
11 Leader and the Secretary of the Senate and the Legislative
12 Research Unit, as required by Section 3.1 of the General
13 Assembly Organization Act and filing such additional copies
14 with the State Government Report Distribution Center for the
15 General Assembly as is required under paragraph (t) of
16 Section 7 of the State Library Act.
17 (Source: P.A. 91-589, eff. 1-1-00.)
18 Section 45. The Capital Crimes Litigation Act is
19 amended by changing Sections 10, 15, and 19 as follows:
20 (725 ILCS 124/10)
21 (Section scheduled to be repealed on July 1, 2004)
22 Sec. 10. Court appointed trial counsel; compensation and
23 expenses.
24 (a) This Section applies only to compensation and
25 expenses of trial counsel appointed by the court as set forth
26 in Section 5, other than public defenders, for the period
27 after arraignment and so long as the State's Attorney has
28 not, at any time, filed a certificate indicating he or she
29 will not seek the death penalty or stated on the record in
30 open court that the death penalty will not be sought.
31 (b) Appointed trial counsel shall be compensated upon
32 presentment and certification by the circuit court of a claim
-55- LRB093 09562 RLC 09800 b
1 for services detailing the date, activity, and time duration
2 for which compensation is sought. Compensation for appointed
3 trial counsel may be paid at a reasonable rate not to exceed
4 $125 per hour.
5 Beginning in 2001, every January 20, the statutory rate
6 prescribed in this subsection shall be automatically
7 increased or decreased, as applicable, by a percentage equal
8 to the percentage change in the consumer price index-u during
9 the preceding 12-month calendar year. "Consumer price
10 index-u" means the index published by the Bureau of Labor
11 Statistics of the United States Department of Labor that
12 measures the average change in prices of goods and services
13 purchased by all urban consumers, United States city average,
14 all items, 1982-84=100. The new rate resulting from each
15 annual adjustment shall be determined by the State Treasurer
16 and made available to the chief judge of each judicial
17 circuit. Payment in excess of the limitations stated in this
18 subsection (b) may be made if the trial court certifies that
19 such payment is necessary to provide fair compensation for
20 representation based upon customary charges in the relevant
21 legal market for attorneys of similar skill, background, and
22 experience. A trial court may entertain the filing of this
23 verified statement before the termination of the cause and
24 may order the provisional payment of sums during the pendency
25 of the cause.
26 (c) Appointed trial counsel may also petition the court
27 for certification of expenses for reasonable and necessary
28 capital litigation expenses including, but not limited to,
29 investigatory and other assistance, expert, forensic, and
30 other witnesses, and mitigation specialists. Counsel may not
31 petition for certification of expenses that may have been
32 provided or compensated by the State Appellate Defender under
33 item (c)(5) of Section 10 of the State Appellate Defender
34 Act.
-56- LRB093 09562 RLC 09800 b
1 (d) Appointed trial counsel shall petition the court for
2 certification of compensation and expenses under this Section
3 periodically during the course of counsel's representation.
4 If the court determines that the compensation and expenses
5 should be paid from the Capital Litigation Trust Fund, the
6 court shall certify, on a form created by the State
7 Treasurer, that all or a designated portion of the amount
8 requested is reasonable, necessary, and appropriate for
9 payment from the Trust Fund. Certification of compensation
10 and expenses by a court in any county other than Cook County
11 shall be delivered by the court to the State Treasurer and
12 paid by the State Treasurer directly from the Capital
13 Litigation Trust Fund if there are sufficient moneys in the
14 Trust Fund to pay the compensation and expenses.
15 Certification of compensation and expenses by a court in Cook
16 County shall be delivered by the court to the county
17 treasurer and paid by the county treasurer from moneys
18 granted to the county from the Capital Litigation Trust Fund.
19 (Source: P.A. 91-589, eff. 1-1-00.)
20 (725 ILCS 124/15)
21 (Section scheduled to be repealed on July 1, 2004)
22 Sec. 15. Capital Litigation Trust Fund.
23 (a) The Capital Litigation Trust Fund is created as a
24 special fund in the State Treasury. The Trust Fund shall be
25 administered by the State Treasurer to provide moneys for the
26 appropriations to be made, grants to be awarded, and
27 compensation and expenses to be paid under this Act. All
28 interest earned from the investment or deposit of moneys
29 accumulated in the Trust Fund shall, under Section 4.1 of the
30 State Finance Act, be deposited into the Trust Fund.
31 (b) Moneys deposited into the Trust Fund shall not be
32 considered general revenue of the State of Illinois.
33 (c) Moneys deposited into the Trust Fund shall be used
-57- LRB093 09562 RLC 09800 b
1 exclusively for the purposes of providing funding for the
2 prosecution and defense of capital cases as provided in this
3 Act and shall not be appropriated, loaned, or in any manner
4 transferred to the General Revenue Fund of the State of
5 Illinois.
6 (d) Every fiscal year the State Treasurer shall transfer
7 from the General Revenue Fund to the Capital Litigation Trust
8 Fund an amount equal to the full amount of moneys
9 appropriated by the General Assembly (both by original and
10 supplemental appropriation), less any unexpended balance from
11 the previous fiscal year, from the Capital Litigation Trust
12 Fund for the specific purpose of making funding available for
13 the prosecution and defense of capital cases. The Public
14 Defender and State's Attorney in Cook County, the State
15 Appellate Defender, the State's Attorneys Appellate
16 Prosecutor, and the Attorney General shall make annual
17 requests for appropriations from the Trust Fund.
18 (1) The Public Defender in Cook County shall
19 request appropriations to the State Treasurer for
20 expenses incurred by the Public Defender and for funding
21 for private appointed defense counsel in Cook County.
22 (2) The State's Attorney in Cook County shall
23 request an appropriation to the State Treasurer for
24 expenses incurred by the State's Attorney.
25 (3) The State Appellate Defender shall request a
26 direct appropriation from the Trust Fund for expenses
27 incurred by the State Appellate Defender in providing
28 assistance to trial attorneys under item (c)(5) of
29 Section 10 of the State Appellate Defender Act and an
30 appropriation to the State Treasurer for payments from
31 the Trust Fund for the defense of cases in counties other
32 than Cook County.
33 (4) The State's Attorneys Appellate Prosecutor
34 shall request a direct appropriation from the Trust Fund
-58- LRB093 09562 RLC 09800 b
1 to pay expenses incurred by the State's Attorneys
2 Appellate Prosecutor and an appropriation to the State
3 Treasurer for payments from the Trust Fund for expenses
4 incurred by State's Attorneys in counties other than Cook
5 County.
6 (5) The Attorney General shall request a direct
7 appropriation from the Trust Fund to pay expenses
8 incurred by the Attorney General in assisting the State's
9 Attorneys in counties other than Cook County.
10 The Public Defender and State's Attorney in Cook County,
11 the State Appellate Defender, the State's Attorneys Appellate
12 Prosecutor, and the Attorney General may each request
13 supplemental appropriations from the Trust Fund during the
14 fiscal year.
15 (e) Moneys in the Trust Fund shall be expended only as
16 follows:
17 (1) To pay the State Treasurer's costs to
18 administer the Trust Fund. The amount for this purpose
19 may not exceed 5% in any one fiscal year of the amount
20 otherwise appropriated from the Trust Fund in the same
21 fiscal year.
22 (2) To pay the capital litigation expenses of trial
23 defense including, but not limited to, investigatory and
24 other assistance, expert, forensic, and other witnesses,
25 and mitigation specialists, and grants and aid provided
26 to public defenders or assistance to attorneys who have
27 been appointed by the court to represent defendants who
28 are charged with capital crimes.
29 (3) To pay the compensation of trial attorneys,
30 other than public defenders, who have been appointed by
31 the court to represent defendants who are charged with
32 capital crimes.
33 (4) To provide State's Attorneys with funding for
34 capital litigation expenses including, but not limited
-59- LRB093 09562 RLC 09800 b
1 to, investigatory and other assistance, including
2 forensic testing under Section 116-3 of the Code of
3 Criminal Procedure of 1963, and expert, forensic, and
4 other witnesses necessary to prosecute capital cases.
5 State's Attorneys in any county other than Cook County
6 seeking funding for capital litigation expenses
7 including, but not limited to, investigatory and other
8 assistance, including forensic testing under Section
9 116-3 of the Code of Criminal Procedure of 1963, and
10 expert, forensic, or other witnesses under this Section
11 may request that the State's Attorneys Appellate
12 Prosecutor or the Attorney General, as the case may be,
13 certify the expenses as reasonable, necessary, and
14 appropriate for payment from the Trust Fund, on a form
15 created by the State Treasurer. Upon certification of
16 the expenses and delivery of the certification to the
17 State Treasurer, the Treasurer shall pay the expenses
18 directly from the Capital Litigation Trust Fund if there
19 are sufficient moneys in the Trust Fund to pay the
20 expenses.
21 (5) To provide financial support through the
22 Attorney General pursuant to the Attorney General Act for
23 the several county State's Attorneys outside of Cook
24 County, but shall not be used to increase personnel for
25 the Attorney General's Office.
26 (6) To provide financial support through the
27 State's Attorneys Appellate Prosecutor pursuant to the
28 State's Attorneys Appellate Prosecutor's Act for the
29 several county State's Attorneys outside of Cook County,
30 but shall not be used to increase personnel for the
31 State's Attorneys Appellate Prosecutor.
32 (7) To provide financial support to the State
33 Appellate Defender pursuant to the State Appellate
34 Defender Act.
-60- LRB093 09562 RLC 09800 b
1 Moneys expended from the Trust Fund shall be in addition
2 to county funding for Public Defenders and State's Attorneys,
3 and shall not be used to supplant or reduce ordinary and
4 customary county funding.
5 (f) Moneys in the Trust Fund shall be appropriated to
6 the State Appellate Defender, the State's Attorneys Appellate
7 Prosecutor, the Attorney General, and the State Treasurer.
8 The State Appellate Defender shall receive an appropriation
9 from the Trust Fund to enable it to provide assistance to
10 appointed defense counsel throughout the State and to Public
11 Defenders in counties other than Cook. The State's Attorneys
12 Appellate Prosecutor and the Attorney General shall receive
13 appropriations from the Trust Fund to enable them to provide
14 assistance to State's Attorneys in counties other than Cook
15 County. Moneys shall be appropriated to the State Treasurer
16 to enable the Treasurer (i) to make grants to Cook County,
17 (ii) to pay the expenses of Public Defenders and State's
18 Attorneys in counties other than Cook County, (iii) to pay
19 the expenses and compensation of appointed defense counsel in
20 counties other than Cook County, and (iv) to pay the costs of
21 administering the Trust Fund. All expenditures and grants
22 made from the Trust Fund shall be subject to audit by the
23 Auditor General.
24 (g) For Cook County, grants from the Trust Fund shall be
25 made and administered as follows:
26 (1) For each State fiscal year, the State's
27 Attorney and Public Defender must each make a separate
28 application to the State Treasurer for capital litigation
29 grants.
30 (2) The State Treasurer shall establish rules and
31 procedures for grant applications. The rules shall
32 require the Cook County Treasurer as the grant recipient
33 to report on a periodic basis to the State Treasurer how
34 much of the grant has been expended, how much of the
-61- LRB093 09562 RLC 09800 b
1 grant is remaining, and the purposes for which the grant
2 has been used. The rules may also require the Cook
3 County Treasurer to certify on a periodic basis that
4 expenditures of the funds have been made for expenses
5 that are reasonable, necessary, and appropriate for
6 payment from the Trust Fund.
7 (3) The State Treasurer shall make the grants to
8 the Cook County Treasurer as soon as possible after the
9 beginning of the State fiscal year.
10 (4) The State's Attorney or Public Defender may
11 apply for supplemental grants during the fiscal year.
12 (5) Grant moneys shall be paid to the Cook County
13 Treasurer in block grants and held in separate accounts
14 for the State's Attorney, the Public Defender, and court
15 appointed defense counsel other than the Cook County
16 Public Defender, respectively, for the designated fiscal
17 year, and are not subject to county appropriation.
18 (6) Expenditure of grant moneys under this
19 subsection (g) is subject to audit by the Auditor
20 General.
21 (7) The Cook County Treasurer shall immediately
22 make payment from the appropriate separate account in the
23 county treasury for capital litigation expenses to the
24 State's Attorney, Public Defender, or court appointed
25 defense counsel other than the Public Defender, as the
26 case may be, upon order of the State's Attorney, Public
27 Defender or the court, respectively.
28 (h) If a defendant in a capital case in Cook County is
29 represented by court appointed counsel other than the Cook
30 County Public Defender, the appointed counsel shall petition
31 the court for an order directing the Cook County Treasurer to
32 pay the court appointed counsel's reasonable and necessary
33 compensation and capital litigation expenses from grant
34 moneys provided from the Trust Fund. These petitions shall be
-62- LRB093 09562 RLC 09800 b
1 considered in camera. Orders denying petitions for
2 compensation or expenses are final. Counsel may not petition
3 for expenses that may have been provided or compensated by
4 the State Appellate Defender under item (c)(5) of Section 10
5 of the State Appellate Defender Act.
6 (i) In counties other than Cook County, and excluding
7 capital litigation expenses or services that may have been
8 provided by the State Appellate Defender under item (c)(5) of
9 Section 10 of the State Appellate Defender Act:
10 (1) Upon certification by the circuit court, on a
11 form created by the State Treasurer, that all or a
12 portion of the expenses are reasonable, necessary, and
13 appropriate for payment from the Trust Fund and the
14 court's delivery of the certification to the Treasurer,
15 the Treasurer shall pay the certified expenses of Public
16 Defenders from the money appropriated to the Treasurer
17 for capital litigation expenses of Public Defenders in
18 any county other than Cook County, if there are
19 sufficient moneys in the Trust Fund to pay the expenses.
20 (2) If a defendant in a capital case is represented
21 by court appointed counsel other than the Public
22 Defender, the appointed counsel shall petition the court
23 to certify compensation and capital litigation expenses
24 including, but not limited to, investigatory and other
25 assistance, expert, forensic, and other witnesses, and
26 mitigation specialists as reasonable, necessary, and
27 appropriate for payment from the Trust Fund. Upon
28 certification on a form created by the State Treasurer of
29 all or a portion of the compensation and expenses
30 certified as reasonable, necessary, and appropriate for
31 payment from the Trust Fund and the court's delivery of
32 the certification to the Treasurer, the State Treasurer
33 shall pay the certified compensation and expenses from
34 the money appropriated to the Treasurer for that purpose,
-63- LRB093 09562 RLC 09800 b
1 if there are sufficient moneys in the Trust Fund to make
2 those payments.
3 (3) A petition for capital litigation expenses
4 under this subsection shall be considered in camera.
5 Orders denying petitions for compensation or expenses are
6 final.
7 (j) If the Trust Fund is discontinued or dissolved by an
8 Act of the General Assembly or by operation of law, any
9 balance remaining in the Trust Fund shall be returned to the
10 General Revenue Fund after deduction of administrative costs,
11 any other provision of this Act to the contrary
12 notwithstanding.
13 (Source: P.A. 91-589, eff. 1-1-00.)
14 (725 ILCS 124/19)
15 (Section scheduled to be repealed on July 1, 2004)
16 Sec. 19. Report; repeal.
17 (a) The Cook County Public Defender, the Cook County
18 State's Attorney, the State Appellate Defender, the State's
19 Attorneys Appellate Prosecutor, and the Attorney General
20 shall each report separately to the General Assembly by
21 January 1, 2004 detailing the amounts of money received by
22 them through this Act, the uses for which those funds were
23 expended, the balances then in the Capital Litigation Trust
24 Fund or county accounts, as the case may be, dedicated to
25 them for the use and support of Public Defenders, appointed
26 trial defense counsel, and State's Attorneys, as the case may
27 be. The report shall describe and discuss the need for
28 continued funding through the Fund and contain any
29 suggestions for changes to this Act.
30 (b) (Blank)Unless the General Assembly provides
31 otherwise, this Act is repealed on July 1, 2004.
32 (Source: P.A. 91-589, eff. 1-1-00.)
-64- LRB093 09562 RLC 09800 b
1 Section 50. The Unified Code of Corrections is amended
2 by adding Section 5-2-7 and changing Sections 3-2-7, 3-3-13
3 and 5-4-3 as follows:
4 (730 ILCS 5/3-2-7) (from Ch. 38, par. 1003-2-7)
5 Sec. 3-2-7. Staff Training and Development.
6 (a) The Department shall train its own personnel and any
7 personnel from local agencies by agreements under Section
8 3-15-2.
9 (b) To develop and train its personnel, the Department
10 may make grants in aid for academic study and training in
11 fields related to corrections. The Department shall establish
12 rules for the conditions and amounts of such grants. The
13 Department may employ any person during his program of
14 studies and may require the person to work for it on
15 completion of his program according to the agreement entered
16 into between the person receiving the grant and the
17 Department.
18 (c) The training of personal of the Department shall
19 include instruction on consular rights and the notification
20 obligations to be followed during the arrest and detention of
21 foreign nationals under the protocols of the Vienna
22 Convention on Consular Relations.
23 (Source: P.A. 77-2097.)
24 (730 ILCS 5/3-3-13) (from Ch. 38, par. 1003-3-13)
25 Sec. 3-3-13. Procedure for Executive Clemency.
26 (a) Petitions seeking pardon, commutation, or reprieve
27 shall be addressed to the Governor and filed with the
28 Prisoner Review Board. The petition shall be in writing and
29 signed by the person under conviction or by a person on his
30 behalf. It shall contain a brief history of the case, the
31 reasons for seeking executive clemency, and other relevant
32 information the Board may require.
-65- LRB093 09562 RLC 09800 b
1 (a-5) After a petition has been denied by the Governor,
2 the Board may not accept a repeat petition for executive
3 clemency for the same person until one full year has elapsed
4 from the date of the denial. The Chairman of the Board may
5 waive the one-year requirement if the petitioner offers in
6 writing new information that was unavailable to the
7 petitioner at the time of the filing of the prior petition
8 and which the Chairman determines to be significant. The
9 Chairman also may waive the one-year waiting period if the
10 petitioner can show that a change in circumstances of a
11 compelling humanitarian nature has arisen since the denial of
12 the prior petition.
13 (b) Notice of the proposed application shall be given by
14 the Board to the committing court and the state's attorney of
15 the county where the conviction was had.
16 (c) The Board shall, if requested and upon due notice,
17 give a hearing to each application, allowing representation
18 by counsel, if desired, after which it shall confidentially
19 advise the Governor by a written report of its
20 recommendations which shall be determined by majority vote.
21 The Board shall meet to consider such petitions no less than
22 4 times each year.
23 Application for executive clemency under this Section may
24 not be commenced on behalf of a person who has been sentenced
25 to death without the written consent of the defendant, unless
26 the defendant, because of a mental or physical condition, is
27 incapable of asserting his or her own claim.
28 All petitions for executive clemency on behalf of a
29 person who is sentenced to death must be filed with the
30 Prisoner Review Board within 30 days from the date that the
31 Supreme Court has issued a final order setting the execution
32 date. The Governor or the Chairman of the Prisoner Review
33 Board may waive the 30-day requirement if the petitioner has
34 just cause for not filing the petition within the appropriate
-66- LRB093 09562 RLC 09800 b
1 time limitations.
2 (d) The Governor shall decide each application and
3 communicate his decision to the Board which shall notify the
4 petitioner.
5 In the event a petitioner who has been convicted of a
6 Class X felony is granted a release, after the Governor has
7 communicated such decision to the Board, the Board shall give
8 written notice to the Sheriff of the county from which the
9 offender was sentenced if such sheriff has requested that
10 such notice be given on a continuing basis. In cases where
11 arrest of the offender or the commission of the offense took
12 place in any municipality with a population of more than
13 10,000 persons, the Board shall also give written notice to
14 the proper law enforcement agency for said municipality which
15 has requested notice on a continuing basis.
16 (e) Nothing in this Section shall be construed to limit
17 the power of the Governor under the constitution to grant a
18 reprieve, commutation of sentence, or pardon.
19 (Source: P.A. 89-112, eff. 7-7-95; 89-684, eff. 6-1-97.)
20 (730 ILCS 5/5-2-7 new)
21 Sec. 5-2-7. Fitness to be executed.
22 (a) A person is unfit to be executed if the person is
23 mentally retarded. For the purposes of this Section,
24 "mentally retarded" means:
25 (1) having significantly sub-average general
26 intellectual functioning as evidenced by a functional
27 intelligence quotient (I.Q.) of 70 or below; and
28 (2) having deficits in adaptive behavior.
29 The mental retardation must have been manifested during
30 the developmental period, or by 18 years of age.
31 (b) The question of fitness to be executed may be raised
32 after pronouncement of the death sentence. The procedure for
33 raising and deciding the question shall be the same as that
-67- LRB093 09562 RLC 09800 b
1 provided for raising and deciding the question of fitness to
2 stand trial subject to the following specific provisions:
3 (1) the question shall be raised by motion filed in
4 the sentencing court;
5 (2) the question shall be decided by the court;
6 (3) the burden of proving that the offender is
7 unfit to be executed is on the offender;
8 (4) if the offender is found to be mentally
9 retarded, the court must resentence the offender to
10 natural life imprisonment under Chapter V of the Unified
11 Code of Corrections.
12 (730 ILCS 5/5-4-3) (from Ch. 38, par. 1005-4-3)
13 Sec. 5-4-3. Persons convicted of, or found delinquent
14 for, certain offenses or institutionalized as sexually
15 dangerous; specimens; genetic marker groups.
16 (a) Any person convicted of, found guilty under the
17 Juvenile Court Act of 1987 for, or who received a disposition
18 of court supervision for, a qualifying offense or attempt of
19 a qualifying offense, convicted or found guilty of any
20 offense classified as a felony under Illinois law, found
21 guilty or given supervision for any offense classified as a
22 felony under the Juvenile Court Act of 1987, or
23 institutionalized as a sexually dangerous person under the
24 Sexually Dangerous Persons Act, or committed as a sexually
25 violent person under the Sexually Violent Persons Commitment
26 Act shall, regardless of the sentence or disposition imposed,
27 be required to submit specimens of blood, saliva, or tissue
28 to the Illinois Department of State Police in accordance with
29 the provisions of this Section, provided such person is:
30 (1) convicted of a qualifying offense or attempt of
31 a qualifying offense on or after July 1, 1990the
32 effective date of this amendatory Act of 1989, and
33 sentenced to a term of imprisonment, periodic
-68- LRB093 09562 RLC 09800 b
1 imprisonment, fine, probation, conditional discharge or
2 any other form of sentence, or given a disposition of
3 court supervision for the offense;, or
4 (1.5) found guilty or given supervision under the
5 Juvenile Court Act of 1987 for a qualifying offense or
6 attempt of a qualifying offense on or after January 1,
7 1997;the effective date of this amendatory Act of 1996,
8 or
9 (2) ordered institutionalized as a sexually
10 dangerous person on or after July 1, 1990;the effective
11 date of this amendatory Act of 1989, or
12 (3) convicted of a qualifying offense or attempt of
13 a qualifying offense before July 1, 1990the effective
14 date of this amendatory Act of 1989 and is presently
15 confined as a result of such conviction in any State
16 correctional facility or county jail or is presently
17 serving a sentence of probation, conditional discharge or
18 periodic imprisonment as a result of such conviction;, or
19 (3.5) convicted or found guilty of any offense
20 classified as a felony under Illinois law or found guilty
21 or given supervision for such an offense under the
22 Juvenile Court Act of 1987 on or after August 22, 2002;
23 the effective date of this amendatory Act of the 92nd
24 General Assembly, or
25 (4) presently institutionalized as a sexually
26 dangerous person or presently institutionalized as a
27 person found guilty but mentally ill of a sexual offense
28 or attempt to commit a sexual offense; or
29 (4.5) ordered committed as a sexually violent
30 person on or after the effective date of the Sexually
31 Violent Persons Commitment Act; or
32 (5) seeking transfer to or residency in Illinois
33 under Sections 3-3-11.05 through 3-3-11.5 of the Unified
34 Code of Corrections and the Interstate Compact for Adult
-69- LRB093 09562 RLC 09800 b
1 Offender Supervision or the Interstate Agreements on
2 Sexually Dangerous Persons Act.
3 Notwithstanding other provisions of this Section, any
4 person incarcerated in a facility of the Illinois Department
5 of Corrections on or after August 22, 2002the effective date
6 of this amendatory Act of the 92nd General Assembly shall be
7 required to submit a specimen of blood, saliva, or tissue
8 prior to his or her release on parole or mandatory supervised
9 release, as a condition of his or her parole or mandatory
10 supervised release.
11 (a-5) Any person who was otherwise convicted of or
12 received a disposition of court supervision for any other
13 offense under the Criminal Code of 1961 or who was found
14 guilty or given supervision for such a violation under the
15 Juvenile Court Act of 1987, may, regardless of the sentence
16 imposed, be required by an order of the court to submit
17 specimens of blood, saliva, or tissue to the Illinois
18 Department of State Police in accordance with the provisions
19 of this Section.
20 (b) Any person required by paragraphs (a)(1), (a)(1.5),
21 (a)(2), (a)(3.5), and (a-5) to provide specimens of blood,
22 saliva, or tissue shall provide specimens of blood, saliva,
23 or tissue within 45 days after sentencing or disposition at a
24 collection site designated by the Illinois Department of
25 State Police.
26 (c) Any person required by paragraphs (a)(3), (a)(4),
27 and (a)(4.5) to provide specimens of blood, saliva, or tissue
28 shall be required to provide such samples prior to final
29 discharge, parole, or release at a collection site designated
30 by the Illinois Department of State Police.
31 (c-5) Any person required by paragraph (a)(5) to provide
32 specimens of blood, saliva, or tissue shall, where feasible,
33 be required to provide the specimens before being accepted
34 for conditioned residency in Illinois under the interstate
-70- LRB093 09562 RLC 09800 b
1 compact or agreement, but no later than 45 days after arrival
2 in this State.
3 (c-6) The Illinois Department of State Police may
4 determine which type of specimen or specimens, blood, saliva,
5 or tissue, is acceptable for submission to the Division of
6 Forensic Services for analysis.
7 (d) The Illinois Department of State Police shall
8 provide all equipment and instructions necessary for the
9 collection of blood samples. The collection of samples shall
10 be performed in a medically approved manner. Only a
11 physician authorized to practice medicine, a registered nurse
12 or other qualified person trained in venipuncture may
13 withdraw blood for the purposes of this Act. The samples
14 shall thereafter be forwarded to the Illinois Department of
15 State Police, Division of Forensic Services, for analysis and
16 categorizing into genetic marker groupings.
17 (d-1) The Illinois Department of State Police shall
18 provide all equipment and instructions necessary for the
19 collection of saliva samples. The collection of saliva
20 samples shall be performed in a medically approved manner.
21 Only a person trained in the instructions promulgated by the
22 Illinois State Police on collecting saliva may collect saliva
23 for the purposes of this Section. The samples shall
24 thereafter be forwarded to the Illinois Department of State
25 Police, Division of Forensic Services, for analysis and
26 categorizing into genetic marker groupings.
27 (d-2) The Illinois Department of State Police shall
28 provide all equipment and instructions necessary for the
29 collection of tissue samples. The collection of tissue
30 samples shall be performed in a medically approved manner.
31 Only a person trained in the instructions promulgated by the
32 Illinois State Police on collecting tissue may collect tissue
33 for the purposes of this Section. The samples shall
34 thereafter be forwarded to the Illinois Department of State
-71- LRB093 09562 RLC 09800 b
1 Police, Division of Forensic Services, for analysis and
2 categorizing into genetic marker groupings.
3 (d-5) To the extent that funds are available, the
4 Illinois Department of State Police shall contract with
5 qualified personnel and certified laboratories for the
6 collection, analysis, and categorization of known samples.
7 (e) The genetic marker groupings shall be maintained by
8 the Illinois Department of State Police, Division of Forensic
9 Services.
10 (f) The genetic marker grouping analysis information
11 obtained pursuant to this Act shall be confidential and shall
12 be released only to peace officers of the United States, of
13 other states or territories, of the insular possessions of
14 the United States, of foreign countries duly authorized to
15 receive the same, to all peace officers of the State of
16 Illinois and to all prosecutorial agencies. Notwithstanding
17 the limits on disclosure stated by this subsection (f), the
18 genetic marker grouping analysis information obtained under
19 this Act also may be released by court order pursuant to a
20 motion under Section 114-15 of the Code of Criminal Procedure
21 of 1963 to a defendant who meets all of the requirements
22 under that Section. The genetic marker grouping analysis
23 information obtained pursuant to this Act shall be used only
24 for (i) valid law enforcement identification purposes and as
25 required by the Federal Bureau of Investigation for
26 participation in the National DNA database or (ii) technology
27 validation purposes. Notwithstanding any other statutory
28 provision to the contrary, all information obtained under
29 this Section shall be maintained in a single State data base,
30 which may be uploaded into a national database, and which
31 information may be subject to expungement only as set forth
32 in subsection (f-1).
33 (f-1) Upon receipt of notification of a reversal of a
34 conviction based on actual innocence, or of the granting of a
-72- LRB093 09562 RLC 09800 b
1 pardon pursuant to Section 12 of Article V of the Illinois
2 Constitution, if that pardon document specifically states
3 that the reason for the pardon is the actual innocence of an
4 individual whose DNA record has been stored in the State or
5 national DNA identification index in accordance with this
6 Section by the Illinois Department of State Police, the DNA
7 record shall be expunged from the DNA identification index,
8 and the Department shall by rule prescribe procedures to
9 ensure that the record and any samples, analyses, or other
10 documents relating to such record, whether in the possession
11 of the Department or any law enforcement or police agency, or
12 any forensic DNA laboratory, including any duplicates or
13 copies thereof, are destroyed and a letter is sent to the
14 court verifying the expungement is completed.
15 (f-5) Any person who intentionally uses genetic marker
16 grouping analysis information, or any other information
17 derived from a DNA sample, beyond the authorized uses as
18 provided under this Section, or any other Illinois law, is
19 guilty of a Class 4 felony, and shall be subject to a fine of
20 not less than $5,000.
21 (g) For the purposes of this Section, "qualifying
22 offense" means any of the following:
23 (1) any violation or inchoate violation of Section
24 11-6, 11-9.1, 11-11, 11-18.1, 12-15, or 12-16 of the
25 Criminal Code of 1961;, or
26 (1.1) any violation or inchoate violation of
27 Section 9-1, 9-2, 10-1, 10-2, 12-11, 12-11.1, 18-1, 18-2,
28 18-3, 18-4, 19-1, or 19-2 of the Criminal Code of 1961
29 for which persons are convicted on or after July 1,
30 2001;, or
31 (2) any former statute of this State which defined
32 a felony sexual offense;, or
33 (3) (blank);, or
34 (4) any inchoate violation of Section 9-3.1,
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1 11-9.3, 12-7.3, or 12-7.4 of the Criminal Code of 1961;,
2 or
3 (5) any violation or inchoate violation of Article
4 29D of the Criminal Code of 1961.
5 (g-5) (Blank).
6 (h) The Illinois Department of State Police shall be the
7 State central repository for all genetic marker grouping
8 analysis information obtained pursuant to this Act. The
9 Illinois Department of State Police may promulgate rules for
10 the form and manner of the collection of blood, saliva, or
11 tissue samples and other procedures for the operation of this
12 Act. The provisions of the Administrative Review Law shall
13 apply to all actions taken under the rules so promulgated.
14 (i) A person required to provide a blood, saliva, or
15 tissue specimen shall cooperate with the collection of the
16 specimen and any deliberate act by that person intended to
17 impede, delay or stop the collection of the blood, saliva, or
18 tissue specimen is a Class A misdemeanor.
19 (j) Any person required by subsection (a) to submit
20 specimens of blood, saliva, or tissue to the Illinois
21 Department of State Police for analysis and categorization
22 into genetic marker grouping, in addition to any other
23 disposition, penalty, or fine imposed, shall pay an analysis
24 fee of $200. If the analysis fee is not paid at the time of
25 sentencing, the court shall establish a fee schedule by which
26 the entire amount of the analysis fee shall be paid in full,
27 such schedule not to exceed 24 months from the time of
28 conviction. The inability to pay this analysis fee shall not
29 be the sole ground to incarcerate the person.
30 (k) All analysis and categorization fees provided for by
31 subsection (j) shall be regulated as follows:
32 (1) The State Offender DNA Identification System
33 Fund is hereby created as a special fund in the State
34 Treasury.
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1 (2) All fees shall be collected by the clerk of the
2 court and forwarded to the State Offender DNA
3 Identification System Fund for deposit. The clerk of the
4 circuit court may retain the amount of $10 from each
5 collected analysis fee to offset administrative costs
6 incurred in carrying out the clerk's responsibilities
7 under this Section.
8 (3) Fees deposited into the State Offender DNA
9 Identification System Fund shall be used by Illinois
10 State Police crime laboratories as designated by the
11 Director of State Police. These funds shall be in
12 addition to any allocations made pursuant to existing
13 laws and shall be designated for the exclusive use of
14 State crime laboratories. These uses may include, but
15 are not limited to, the following:
16 (A) Costs incurred in providing analysis and
17 genetic marker categorization as required by
18 subsection (d).
19 (B) Costs incurred in maintaining genetic
20 marker groupings as required by subsection (e).
21 (C) Costs incurred in the purchase and
22 maintenance of equipment for use in performing
23 analyses.
24 (D) Costs incurred in continuing research and
25 development of new techniques for analysis and
26 genetic marker categorization.
27 (E) Costs incurred in continuing education,
28 training, and professional development of forensic
29 scientists regularly employed by these laboratories.
30 (l) The failure of a person to provide a specimen, or of
31 any person or agency to collect a specimen, within the 45 day
32 period shall in no way alter the obligation of the person to
33 submit such specimen, or the authority of the Illinois
34 Department of State Police or persons designated by the
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1 Department to collect the specimen, or the authority of the
2 Illinois Department of State Police to accept, analyze and
3 maintain the specimen or to maintain or upload results of
4 genetic marker grouping analysis information into a State or
5 national database.
6 (Source: P.A. 91-528, eff. 1-1-00; 92-16, eff. 6-28-01;
7 92-40, eff. 6-29-01; 92-571, eff. 6-26-02; 92-600, eff.
8 6-28-02; 92-829, eff. 8-22-02; 92-854, eff. 12-5-02; revised
9 1-20-03.)
10 Section 99. Effective date. This Act takes effect upon
11 becoming law.
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1 INDEX
2 Statutes amended in order of appearance
3 15 ILCS 205/4 from Ch. 14, par. 4
4 20 ILCS 2610/9.5 new
5 20 ILCS 3930/7 from Ch. 38, par. 210-7
6 50 ILCS 705/6.1
7 50 ILCS 705/7 from Ch. 85, par. 507
8 55 ILCS 5/3-4006 from Ch. 34, par. 3-4006
9 720 ILCS 5/8-4 from Ch. 38, par. 8-4
10 720 ILCS 5/9-1 from Ch. 38, par. 9-1
11 720 ILCS 5/14-3 from Ch. 38, par. 14-3
12 725 ILCS 5/103-10 new
13 725 ILCS 5/103-11 new
14 725 ILCS 5/ Art. 106F heading new
15 725 ILCS 5/106F-5 new
16 725 ILCS 5/106G Art. 106G heading new
17 725 ILCS 5/106G-5 new
18 725 ILCS 5/ Art. 107A heading new
19 725 ILCS 5/107A-5 new
20 725 ILCS 5/108-15 new
21 725 ILCS 5/113-8 new
22 725 ILCS 5/114-11 from Ch. 38, par. 114-11
23 725 ILCS 5/114-13 from Ch. 38, par. 114-13
24 725 ILCS 5/114-15 new
25 725 ILCS 5/114-16 new
26 725 ILCS 5/115-16.1 new
27 725 ILCS 5/115-19
28 725 ILCS 5/115-21 new
29 725 ILCS 5/116-3
30 725 ILCS 5/122-1 from Ch. 38, par. 122-1
31 725 ILCS 5/122-2.1 from Ch. 38, par. 122-2.1
32 725 ILCS 105/10 from Ch. 38, par. 208-10
33 725 ILCS 124/10
34 725 ILCS 124/15
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1 725 ILCS 124/19
2 730 ILCS 5/3-2-7 from Ch. 38, par. 1003-2-7
3 730 ILCS 5/3-3-13 from Ch. 38, par. 1003-3-13
4 730 ILCS 5/5-2-7 new
5 730 ILCS 5/5-4-3 from Ch. 38, par. 1005-4-3
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