Illinois General Assembly - Full Text of HB5330
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Full Text of HB5330  97th General Assembly

HB5330enr 97TH GENERAL ASSEMBLY

  
  
  

 


 
HB5330 EnrolledLRB097 18170 RLC 65641 b

1    AN ACT concerning sexually violent persons.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Sexually Violent Persons Commitment Act is
5amended by changing Sections 55, 60, and 65 and adding Section
621 as follows:
 
7    (725 ILCS 207/21 new)
8    Sec. 21. Service of petitions. If a person alleged to be a
9sexually violent person is in the custody of or is being
10supervised on parole or mandatory supervised release by the
11Department of Corrections or Department of Juvenile Justice, a
12petition filed under this Act may be served on the person by
13personnel of the Department of Corrections or Department of
14Juvenile Justice. Service may be proved by affidavit of the
15person making service. The affidavit shall be returned to the
16Attorney General or State's Attorney of the county where the
17petition is pending for filing with the court. Service provided
18for in this Section is in addition to other manners of service
19provided for in Section 20 of this Act and the Code of Civil
20Procedure.
 
21    (725 ILCS 207/55)
22    Sec. 55. Periodic reexamination; report.

 

 

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1    (a) If a person has been committed under Section 40 of this
2Act and has not been discharged under Section 65 of this Act,
3the Department shall submit a written report to the court on
4his or her mental condition within 6 months after an initial
5commitment under Section 40 and then at least once every 12
6months after an initial commitment under Section 40 thereafter
7for the purpose of determining whether: (1) the person has made
8sufficient progress in treatment to be conditionally released
9and (2) whether the person's condition has so changed since the
10most recent periodic reexamination (or initial commitment, if
11there has not yet been a periodic reexamination) that he or she
12is no longer a sexually violent person or discharged. At the
13time of a reexamination under this Section, the person who has
14been committed may retain or, if he or she is indigent and so
15requests, the court may appoint a qualified expert or a
16professional person to examine him or her.
17    (b) Any examiner conducting an examination under this
18Section shall prepare a written report of the examination no
19later than 30 days after the date of the examination. The
20examiner shall place a copy of the report in the person's
21health care records and shall provide a copy of the report to
22the court that committed the person under Section 40. The
23examination shall be conducted in conformance with the
24standards developed under the Sex Offender Management Board Act
25and by an evaluator approved by the Board.
26    (c) Notwithstanding subsection (a) of this Section, the

 

 

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1court that committed a person under Section 40 may order a
2reexamination of the person at any time during the period in
3which the person is subject to the commitment order. Any
4examiner conducting an examination under this Section shall
5prepare a written report of the examination no later than 30
6days after the date of the examination.
7    (d) Petitions for discharge after reexamination must
8follow the procedure outlined in Section 65 of this Act.
9(Source: P.A. 93-616, eff. 1-1-04; 93-885, eff. 8-6-04.)
 
10    (725 ILCS 207/60)
11    Sec. 60. Petition for conditional release.
12    (a) Any person who is committed for institutional care in a
13secure facility or other facility under Section 40 of this Act
14may petition the committing court to modify its order by
15authorizing conditional release if at least 12 6 months have
16elapsed since the initial commitment order was entered, an
17order continuing commitment was entered pursuant to Section 65,
18the most recent release petition was denied or the most recent
19order for conditional release was revoked. The director of the
20facility at which the person is placed may file a petition
21under this Section on the person's behalf at any time. If the
22evaluator on behalf of the Department recommends that the
23committed person is appropriate for conditional release, then
24the director or designee shall, within 30 days of receipt of
25the evaluator's report, file with the committing court notice

 

 

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1of his or her intention whether or not to petition for
2conditional release on the committed person's behalf.
3    (b) If the person files a timely petition without counsel,
4the court shall serve a copy of the petition on the Attorney
5General or State's Attorney, whichever is applicable and,
6subject to paragraph (c)(1) of Section 25 of this Act, appoint
7counsel. If the person petitions through counsel, his or her
8attorney shall serve the Attorney General or State's Attorney,
9whichever is applicable.
10    (c) Within 20 days after receipt of the petition, upon the
11request of the committed person or on the court's own motion,
12the court may appoint an examiner having the specialized
13knowledge determined by the court to be appropriate, who shall
14examine the mental condition of the person and furnish a
15written report of the examination to the court within 30 days
16after appointment. The examiners shall have reasonable access
17to the person for purposes of examination and to the person's
18past and present treatment records and patient health care
19records. If any such examiner believes that the person is
20appropriate for conditional release, the examiner shall report
21on the type of treatment and services that the person may need
22while in the community on conditional release. The State has
23the right to have the person evaluated by experts chosen by the
24State. Any examination or evaluation conducted under this
25Section shall be in conformance with the standards developed
26under the Sex Offender Management Board Act and conducted by an

 

 

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1evaluator approved by the Board. The court shall set a probable
2cause hearing as soon as practical after the examiners' reports
3are filed. The probable cause hearing shall consist of a review
4of the examining evaluators' reports and arguments on behalf of
5the parties. If the court finds probable cause to believe the
6person has made sufficient progress in treatment to the point
7where he or she is no longer substantially probable to engage
8in acts of sexual violence if on conditional release If the
9court determines at the probable cause hearing that cause
10exists to believe that it is not substantially probable that
11the person will engage in acts of sexual violence if on release
12or conditional release, the court shall set a hearing on the
13issue.
14    (d) The court, without a jury, shall hear the petition as
15soon as practical after the reports of all examiners are filed
16with the court. The court shall grant the petition unless the
17State proves by clear and convincing evidence that the person
18has not made sufficient progress in treatment to the point
19where he or she is no longer substantially probable to engage
20in acts of sexual violence if on conditional release to be
21conditionally released. In making a decision under this
22subsection, the court must consider the nature and
23circumstances of the behavior that was the basis of the
24allegation in the petition under paragraph (b)(1) of Section 15
25of this Act, the person's mental history and present mental
26condition, and what arrangements are available to ensure that

 

 

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1the person has access to and will participate in necessary
2treatment.
3    (e) Before the court may enter an order directing
4conditional release to a less restrictive alternative it must
5find the following: (1) the person will be treated by a
6Department approved treatment provider, (2) the treatment
7provider has presented a specific course of treatment and has
8agreed to assume responsibility for the treatment and will
9report progress to the Department on a regular basis, and will
10report violations immediately to the Department, consistent
11with treatment and supervision needs of the respondent, (3)
12housing exists that is sufficiently secure to protect the
13community, and the person or agency providing housing to the
14conditionally released person has agreed in writing to accept
15the person, to provide the level of security required by the
16court, and immediately to report to the Department if the
17person leaves the housing to which he or she has been assigned
18without authorization, (4) the person is willing to or has
19agreed to comply with the treatment provider, the Department,
20and the court, and (5) the person has agreed or is willing to
21agree to comply with the behavioral monitoring requirements
22imposed by the court and the Department.
23    (f) If the court finds that the person is appropriate for
24conditional release, the court shall notify the Department. The
25Department shall prepare a plan that identifies the treatment
26and services, if any, that the person will receive in the

 

 

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1community. The plan shall address the person's need, if any,
2for supervision, counseling, medication, community support
3services, residential services, vocational services, and
4alcohol or other drug abuse treatment. The Department may
5contract with a county health department, with another public
6agency or with a private agency to provide the treatment and
7services identified in the plan. The plan shall specify who
8will be responsible for providing the treatment and services
9identified in the plan. The plan shall be presented to the
10court for its approval within 60 days after the court finding
11that the person is appropriate for conditional release, unless
12the Department and the person to be released request additional
13time to develop the plan.
14    (g) The provisions of paragraphs (b)(4), (b)(5), and (b)(6)
15of Section 40 of this Act apply to an order for conditional
16release issued under this Section.
17(Source: P.A. 96-1128, eff. 1-1-11.)
 
18    (725 ILCS 207/65)
19    Sec. 65. Petition for discharge; procedure.
20    (a)(1) If the Secretary determines at any time that a
21person committed under this Act is no longer a sexually violent
22person, the Secretary shall authorize the person to petition
23the committing court for discharge. If the evaluator on behalf
24of the Department recommends that the committed person is no
25longer a sexually violent person, then the Secretary or

 

 

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1designee shall, within 30 days of receipt of the evaluator's
2report, file with the committing court notice of his or her
3determination whether or not to authorize the committed person
4to petition the committing court for discharge. The person
5shall file the petition with the court and serve a copy upon
6the Attorney General or the State's Attorney's office that
7filed the petition under subsection (a) of Section 15 of this
8Act, whichever is applicable. The court, upon receipt of the
9petition for discharge, shall order a hearing to be held as
10soon as practical after the date of receipt of the petition.
11    (2) At a hearing under this subsection, the Attorney
12General or State's Attorney, whichever filed the original
13petition, shall represent the State. The State has the right to
14have the person evaluated by experts chosen by the State and
15shall have the right to have the petitioner examined by an
16expert or professional person of his or her choice. The
17examination shall be conducted in conformance with the
18standards developed under the Sex Offender Management Board Act
19and by an evaluator approved by the Board. The committed person
20or the State may elect to have the hearing before a jury. The
21State has the burden of proving by clear and convincing
22evidence that the petitioner is still a sexually violent
23person.
24    (3) If the court or jury is satisfied that the State has
25not met its burden of proof under paragraph (a)(2) of this
26Section, the petitioner shall be discharged from the custody or

 

 

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1supervision of the Department. If the court is satisfied that
2the State has met its burden of proof under paragraph (a)(2),
3the court may proceed under Section 40 of this Act to determine
4whether to modify the petitioner's existing commitment order.
5    (b)(1) A person may petition the committing court for
6discharge from custody or supervision without the Secretary's
7approval. At the time of an examination under subsection (a) of
8Section 55 of this Act, the Secretary shall provide the
9committed person with a written notice of the person's right to
10petition the court for discharge over the Secretary's
11objection. The notice shall contain a waiver of rights. The
12Secretary shall forward the notice and waiver form to the court
13with the report of the Department's examination under Section
1455 of this Act. If the person does not affirmatively waive the
15right to petition, the court shall set a probable cause hearing
16to determine whether facts exist to believe that since the most
17recent periodic reexamination (or initial commitment, if there
18has not yet been a periodic reexamination), the condition of
19the committed person has so changed that he or she is no longer
20a sexually violent person. However, if a person has previously
21filed a petition for discharge without the Secretary's approval
22and the court determined, either upon review of the petition or
23following a hearing, that the person's petition was frivolous
24or that the person was still a sexually violent person, then
25the court shall deny any subsequent petition under this Section
26without a hearing unless the petition contains facts upon which

 

 

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1a court could reasonably find that the condition of the person
2had so changed that a hearing was warranted that warrant a
3hearing on whether the person is still a sexually violent
4person. If a person does not file a petition for discharge, yet
5fails to waive the right to petition under this Section, then
6the probable cause hearing consists only of a review of the
7reexamination reports and arguments on behalf of the parties.
8The committed person has a right to have an attorney represent
9him or her at the probable cause hearing, but the person is not
10entitled to be present at the probable cause hearing. The
11probable cause hearing under this Section must be held as soon
12as practical after the filing of the reexamination report under
13Section 55 of this Act.
14    (2) If the court determines at the probable cause hearing
15under paragraph (b)(1) of this Section that probable cause
16exists to believe that since the most recent periodic
17reexamination (or initial commitment, if there has not yet been
18a periodic reexamination), the condition of the committed
19person has so changed that he or she is no longer a sexually
20violent person, then the court shall set a hearing on the
21issue. At a hearing under this Section, the committed person is
22entitled to be present and to the benefit of the protections
23afforded to the person under Section 25 of this Act. The
24committed person or the State may elect to have a hearing under
25this Section before a jury. A verdict of a jury under this
26Section is not valid unless it is unanimous. The Attorney

 

 

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1General or State's Attorney, whichever filed the original
2petition, shall represent the State at a hearing under this
3Section. The State has the right to have the committed person
4evaluated by experts chosen by the State. The examination shall
5be conducted in conformance with the standards developed under
6the Sex Offender Management Board Act and by an evaluator
7approved by the Board. At the hearing, the State has the burden
8of proving by clear and convincing evidence that the committed
9person is still a sexually violent person.
10    (3) If the court or jury is satisfied that the State has
11not met its burden of proof under paragraph (b)(2) of this
12Section, the person shall be discharged from the custody or
13supervision of the Department. If the court or jury is
14satisfied that the State has met its burden of proof under
15paragraph (b)(2) of this Section, the court may proceed under
16Section 40 of this Act to determine whether to modify the
17person's existing commitment order.
18    (c) This Section applies to petitions pending on the
19effective date of this amendatory Act of the 97th General
20Assembly and to petitions filed on or after that date. This
21provision is severable from the other provisions of this
22Section under Section 1.31 of the Statute on Statutes.
23(Source: P.A. 96-1128, eff. 1-1-11.)
 
24    (725 ILCS 207/70 rep.)
25    Section 10. The Sexually Violent Persons Commitment Act is

 

 

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1amended by repealing Section 70.
 
2    Section 15. The Unified Code of Corrections is amended by
3changing Sections 3-3-4 and 3-3-5 as follows:
 
4    (730 ILCS 5/3-3-4)  (from Ch. 38, par. 1003-3-4)
5    Sec. 3-3-4. Preparation for Parole Hearing.
6    (a) The Prisoner Review Board shall consider the parole of
7each eligible person committed to the Adult Division at least
830 days prior to the date he shall first become eligible for
9parole, and shall consider the parole of each person committed
10to the Department of Juvenile Justice as a delinquent at least
1130 days prior to the expiration of the first year of
12confinement.
13    (b) A person eligible for parole shall, no less than 15
14days in advance of his parole interview, prepare a parole plan
15in accordance with the rules of the Prisoner Review Board. The
16person shall be assisted in preparing his parole plan by
17personnel of the Department of Corrections, or the Department
18of Juvenile Justice in the case of a person committed to that
19Department, and may, for this purpose, be released on furlough
20under Article 11 or on authorized absence under Section 3-9-4.
21The appropriate Department shall also provide assistance in
22obtaining information and records helpful to the individual for
23his parole hearing. If the person eligible for parole has a
24petition or any written submissions prepared on his or her

 

 

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1behalf by an attorney or other representative, the attorney or
2representative for the person eligible for parole must serve by
3certified mail the State's Attorney of the county where he or
4she was prosecuted with the petition or any written submissions
515 days after his or her parole interview. The State's Attorney
6shall provide the attorney for the person eligible for parole
7with a copy of his or her letter in opposition to parole via
8certified mail within 5 business days of the en banc hearing.
9    (c) Any member of the Board shall have access at all
10reasonable times to any committed person and to his master
11record file within the Department, and the Department shall
12furnish such a report to the Board concerning the conduct and
13character of any such person prior to his or her parole
14interview.
15    (d) In making its determination of parole, the Board shall
16consider:
17        (1) material transmitted to the Department of Juvenile
18    Justice by the clerk of the committing court under Section
19    5-4-1 or Section 5-10 of the Juvenile Court Act or Section
20    5-750 of the Juvenile Court Act of 1987;
21        (2) the report under Section 3-8-2 or 3-10-2;
22        (3) a report by the Department and any report by the
23    chief administrative officer of the institution or
24    facility;
25        (4) a parole progress report;
26        (5) a medical and psychological report, if requested by

 

 

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1    the Board;
2        (6) material in writing, or on film, video tape or
3    other electronic means in the form of a recording submitted
4    by the person whose parole is being considered; and
5        (7) material in writing, or on film, video tape or
6    other electronic means in the form of a recording or
7    testimony submitted by the State's Attorney and the victim
8    or a concerned citizen pursuant to the Rights of Crime
9    Victims and Witnesses Act; and .
10        (8) the person's eligibility for commitment under the
11    Sexually Violent Persons Commitment Act.
12    (e) The prosecuting State's Attorney's office shall
13receive from the Board reasonable written notice not less than
1430 days prior to the parole interview and may submit relevant
15information by oral argument or testimony of victims and
16concerned citizens, or both, in writing, or on film, video tape
17or other electronic means or in the form of a recording to the
18Board for its consideration. Upon written request of the
19State's Attorney's office, the Prisoner Review Board shall hear
20protests to parole, except in counties of 1,500,000 or more
21inhabitants where there shall be standing objections to all
22such petitions. If a State's Attorney who represents a county
23of less than 1,500,000 inhabitants requests a protest hearing,
24the inmate's counsel or other representative shall also receive
25notice of such request. This hearing shall take place the month
26following the inmate's parole interview. If the inmate's parole

 

 

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1interview is rescheduled then the Prisoner Review Board shall
2promptly notify the State's Attorney of the new date. The
3person eligible for parole shall be heard at the next scheduled
4en banc hearing date. If the case is to be continued, the
5State's Attorney's office and the attorney or representative
6for the person eligible for parole will be notified of any
7continuance within 5 business days. The State's Attorney may
8waive the written notice.
9    (f) The victim of the violent crime for which the prisoner
10has been sentenced shall receive notice of a parole hearing as
11provided in paragraph (4) of subsection (d) of Section 4.5 of
12the Rights of Crime Victims and Witnesses Act.
13    (g) Any recording considered under the provisions of
14subsection (d)(6), (d)(7) or (e) of this Section shall be in
15the form designated by the Board. Such recording shall be both
16visual and aural. Every voice on the recording and person
17present shall be identified and the recording shall contain
18either a visual or aural statement of the person submitting
19such recording, the date of the recording and the name of the
20person whose parole eligibility is being considered. Such
21recordings shall be retained by the Board and shall be deemed
22to be submitted at any subsequent parole hearing if the victim
23or State's Attorney submits in writing a declaration clearly
24identifying such recording as representing the present
25position of the victim or State's Attorney regarding the issues
26to be considered at the parole hearing.

 

 

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1    (h) The Board shall not release any material to the inmate,
2the inmate's attorney, any third party, or any other person
3containing any information from the victim or from a person
4related to the victim by blood, adoption, or marriage who has
5written objections, testified at any hearing, or submitted
6audio or visual objections to the inmate's parole, unless
7provided with a waiver from that objecting party.
8(Source: P.A. 96-875, eff. 1-22-10; 97-523, eff. 1-1-12.)
 
9    (730 ILCS 5/3-3-5)  (from Ch. 38, par. 1003-3-5)
10    Sec. 3-3-5. Hearing and Determination.
11    (a) The Prisoner Review Board shall meet as often as need
12requires to consider the cases of persons eligible for parole.
13Except as otherwise provided in paragraph (2) of subsection (a)
14of Section 3-3-2 of this Act, the Prisoner Review Board may
15meet and order its actions in panels of 3 or more members. The
16action of a majority of the panel shall be the action of the
17Board. In consideration of persons committed to the Department
18of Juvenile Justice, the panel shall have at least a majority
19of members experienced in juvenile matters.
20    (b) If the person under consideration for parole is in the
21custody of the Department, at least one member of the Board
22shall interview him, and a report of that interview shall be
23available for the Board's consideration. However, in the
24discretion of the Board, the interview need not be conducted if
25a psychiatric examination determines that the person could not

 

 

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1meaningfully contribute to the Board's consideration. The
2Board may in its discretion parole a person who is then outside
3the jurisdiction on his record without an interview. The Board
4need not hold a hearing or interview a person who is paroled
5under paragraphs (d) or (e) of this Section or released on
6Mandatory release under Section 3-3-10.
7    (c) The Board shall not parole a person eligible for parole
8if it determines that:
9        (1) there is a substantial risk that he will not
10    conform to reasonable conditions of parole; or
11        (2) his release at that time would deprecate the
12    seriousness of his offense or promote disrespect for the
13    law; or
14        (3) his release would have a substantially adverse
15    effect on institutional discipline.
16    (d) A person committed under the Juvenile Court Act or the
17Juvenile Court Act of 1987 who has not been sooner released
18shall be paroled on or before his 20th birthday to begin
19serving a period of parole under Section 3-3-8.
20    (e) A person who has served the maximum term of
21imprisonment imposed at the time of sentencing less time credit
22for good behavior shall be released on parole to serve a period
23of parole under Section 5-8-1.
24    (f) The Board shall render its decision within a reasonable
25time after hearing and shall state the basis therefor both in
26the records of the Board and in written notice to the person on

 

 

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1whose application it has acted. In its decision, the Board
2shall set the person's time for parole, or if it denies parole
3it shall provide for a rehearing not less frequently than once
4every year, except that the Board may, after denying parole,
5schedule a rehearing no later than 5 years from the date of the
6parole denial, if the Board finds that it is not reasonable to
7expect that parole would be granted at a hearing prior to the
8scheduled rehearing date. If the Board shall parole a person,
9and, if he is not released within 90 days from the effective
10date of the order granting parole, the matter shall be returned
11to the Board for review.
12    (f-1) If the Board paroles a person who is eligible for
13commitment as a sexually violent person, the effective date of
14the Board's order shall be stayed for 90 days for the purpose
15of evaluation and proceedings under the Sexually Violent
16Persons Commitment Act.
17    (g) The Board shall maintain a registry of decisions in
18which parole has been granted, which shall include the name and
19case number of the prisoner, the highest charge for which the
20prisoner was sentenced, the length of sentence imposed, the
21date of the sentence, the date of the parole, and the basis for
22the decision of the Board to grant parole and the vote of the
23Board on any such decisions. The registry shall be made
24available for public inspection and copying during business
25hours and shall be a public record pursuant to the provisions
26of the Freedom of Information Act.

 

 

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1    (h) The Board shall promulgate rules regarding the exercise
2of its discretion under this Section.
3(Source: P.A. 96-875, eff. 1-22-10; 97-522, eff. 1-1-12.)
 
4    Section 99. Effective date. This Act takes effect upon
5becoming law.