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093_HB1281sam005
LRB093 04396 WGH 16428 a
1 AMENDMENT TO HOUSE BILL 1281
2 AMENDMENT NO. . Amend House Bill 1281, AS AMENDED,
3 by replacing everything after the enacting clause with the
4 following:
5 "Section 1. Short title. This Act may be cited as the
6 Capital Punishment Reform Study Committee Act.
7 Section 2. Capital Punishment Reform Study Committee.
8 (a) There is created the Capital Punishment Reform Study
9 Committee, hereinafter referred to as the Committee,
10 consisting of 15 members appointed as follows:
11 (1) Three members appointed by the President of the
12 Senate;
13 (2) Two members appointed by the Minority Leader of
14 the Senate;
15 (3) Three members appointed by the Speaker of the
16 House of Representatives;
17 (4) Two members appointed by the Minority Leader of
18 the House of Representatives;
19 (5) One member appointed by the Attorney General;
20 (6) One member appointed by the Governor;
21 (7) One member appointed by the Cook County State's
22 Attorney;
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1 (8) One member appointed by the Office of the Cook
2 County Public Defender;
3 (9) One member appointed by the Office of the State
4 Appellate Defender; and
5 (10) One member appointed by the office of the
6 State's Attorneys Appellate Prosecutor.
7 (b) The Committee shall study the impact of the various
8 reforms to the capital punishment system enacted by the 93rd
9 General Assembly and annually report to the General Assembly
10 on the effects of these reforms. Each report shall include:
11 (1) The impact of the reforms on the issue of
12 uniformity and proportionality in the application of the
13 death penalty including, but not limited to, the tracking
14 of data related to whether the reforms have eliminated
15 the statistically significant differences in sentencing
16 related to the geographic location of the homicide and
17 the race of the victim found by the Governor's Commission
18 on Capital Punishment in its report issued on April 15,
19 2002.
20 (2) The implementation of training for police,
21 prosecutors, defense attorneys, and judges as recommended
22 by the Governor's Commission on Capital Punishment.
23 (3) The impact of the various reforms on the
24 quality of evidence used during capital prosecutions.
25 (4) The quality of representation provided by
26 defense counsel to defendants in capital prosecutions.
27 (5) The impact of the various reforms on the costs
28 associated with the administration of the Illinois
29 capital punishment system.
30 (c) The Committee shall hold hearings on a periodic
31 basis to receive testimony from the public regarding the
32 manner in which reforms have impacted the capital punishment
33 system.
34 (d) The Committee shall submit its final report to the
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1 General Assembly no later than 5 years after the effective
2 date of this Act.
3 Section 5. The Illinois Criminal Justice Information Act
4 is amended by adding Section 7.2 as follows:
5 (20 ILCS 3930/7.2 new)
6 Sec. 7.2. Custodial Interview Pilot Program.
7 (a) Legislative findings and intent. The General
8 Assembly finds that technology has made it possible to
9 electronically record custodial interviews of suspects during
10 first degree murder investigations. This technology will
11 protect law enforcement agencies against claims of abuse and
12 coercion by suspects while providing a memorialized account
13 of interviews at police stations. The technology will also
14 provide a better means for courts to review confessions of
15 suspects with direct evidence of demeanor, tone, manner, and
16 content of statements. The General Assembly intends to create
17 a Custodial Interview Pilot Program to establish 4 pilot
18 programs at police stations in the State of Illinois. For
19 each program, video and audio experts shall install equipment
20 and train participating law enforcement agencies to
21 electronically record custodial interviews at their
22 respective police stations. Participating law enforcement
23 agencies shall choose how to use the equipment in cooperation
24 with the local State's Attorney's office. The participating
25 law enforcement agencies may choose to electronically record
26 interviews of suspects for offenses other than first degree
27 murder if they adopt local protocols in cooperation with the
28 local State's Attorney's office.
29 (b) Definitions. In this Section:
30 (1) "Electronically record" means to memorialize by
31 video and audio electronic equipment.
32 (2) "Custodial interviews" means interviews of
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1 suspects during first degree murder investigations or
2 other investigations established by local protocol by law
3 enforcement authorities that take place at the police
4 station.
5 (c) Custodial Interview Pilot Program. The Authority
6 shall, subject to appropriation, establish a Custodial
7 Interview Pilot Program to operate 4 custodial interview
8 pilot programs. The programs shall be established in a police
9 station in the County of Cook and in 3 other police stations
10 geographically distributed throughout the State. Each
11 participating law enforcement agency must:
12 (1) Promulgate procedures for recording custodial
13 interviews of suspects during first degree murder
14 investigations by video and audio means.
15 (2) Promulgate procedures for maintaining and
16 storing video and audio recordings.
17 (d) Each of the 4 pilot programs established by the
18 Authority shall be in existence for a minimum of 2 years
19 after its establishment under this Act.
20 (e) Report. No later than one year after the
21 establishment of pilot programs under this Section, the
22 Authority must report to the General Assembly on the efficacy
23 of the Custodial Interview Pilot Program.
24 (f) The Authority shall adopt rules in cooperation with
25 the Illinois Department of State Police to implement this
26 Section.
27 Section 6. The Illinois Police Training Act is amended by
28 changing Section 6.1 as follows:
29 (50 ILCS 705/6.1)
30 Sec. 6.1. Decertification of full-time and part-time
31 police officers.
32 (a) The Board must review police officer conduct and
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1 records to ensure that no police officer is certified or
2 provided a valid waiver if that police officer has been
3 convicted of a felony offense under the laws of this State or
4 any other state which if committed in this State would be
5 punishable as a felony. The Board must also ensure that no
6 police officer is certified or provided a valid waiver if
7 that police officer has been convicted on or after the
8 effective date of this amendatory Act of 1999 of any
9 misdemeanor specified in this Section or if committed in any
10 other state would be an offense similar to Section 11-6,
11 11-9.1, 11-14, 11-17, 11-19, 12-2, 12-15, 16-1, 17-1, 17-2,
12 28-3, 29-1, 31-1, 31-6, 31-7, 32-4a, or 32-7 of the Criminal
13 Code of 1961 or to Section 5 or 5.2 of the Cannabis Control
14 Act. The Board must appoint investigators to enforce the
15 duties conferred upon the Board by this Act.
16 (b) It is the responsibility of the sheriff or the chief
17 executive officer of every local law enforcement agency or
18 department within this State to report to the Board any
19 arrest or conviction of any officer for an offense identified
20 in this Section.
21 (c) It is the duty and responsibility of every full-time
22 and part-time police officer in this State to report to the
23 Board within 30 days, and the officer's sheriff or chief
24 executive officer, of his or her arrest or conviction for an
25 offense identified in this Section. Any full-time or
26 part-time police officer who knowingly makes, submits, causes
27 to be submitted, or files a false or untruthful report to the
28 Board must have his or her certificate or waiver immediately
29 decertified or revoked.
30 (d) Any person, or a local or State agency, or the Board
31 is immune from liability for submitting, disclosing, or
32 releasing information of arrests or convictions in this
33 Section as long as the information is submitted, disclosed,
34 or released in good faith and without malice. The Board has
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1 qualified immunity for the release of the information.
2 (e) Any full-time or part-time police officer with a
3 certificate or waiver issued by the Board who is convicted of
4 any offense described in this Section immediately becomes
5 decertified or no longer has a valid waiver. The
6 decertification and invalidity of waivers occurs as a matter
7 of law. Failure of a convicted person to report to the Board
8 his or her conviction as described in this Section or any
9 continued law enforcement practice after receiving a
10 conviction is a Class 4 felony.
11 (f) The Board's investigators are peace officers and
12 have all the powers possessed by policemen in cities and by
13 sheriff's, provided that the investigators may exercise those
14 powers anywhere in the State, only after contact and
15 cooperation with the appropriate local law enforcement
16 authorities.
17 (g) The Board must request and receive information and
18 assistance from any federal, state, or local governmental
19 agency as part of the authorized criminal background
20 investigation. The Department of State Police must process,
21 retain, and additionally provide and disseminate information
22 to the Board concerning criminal charges, arrests,
23 convictions, and their disposition, that have been filed
24 before, on, or after the effective date of this amendatory
25 Act of the 91st General Assembly against a basic academy
26 applicant, law enforcement applicant, or law enforcement
27 officer whose fingerprint identification cards are on file or
28 maintained by the Department of State Police. The Federal
29 Bureau of Investigation must provide the Board any criminal
30 history record information contained in its files pertaining
31 to law enforcement officers or any applicant to a Board
32 certified basic law enforcement academy as described in this
33 Act based on fingerprint identification. The Board must make
34 payment of fees to the Department of State Police for each
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1 fingerprint card submission in conformance with the
2 requirements of paragraph 22 of Section 55a of the Civil
3 Administrative Code of Illinois.
4 (h) A police officer who has been certified or granted a
5 valid waiver may also be decertified or have his or her
6 waiver revoked upon a determination by the Board that he or
7 she, while under oath, has knowingly and willfully made false
8 statements as to a material fact during a homicide
9 proceeding. A determination may be made only after an
10 investigation and hearing upon a verified complaint filed
11 with the Illinois Law Enforcement Training Standards Board.
12 No action may be taken by the Board regarding a complaint
13 unless a majority of the members of the Board are present at
14 the meeting at which the action is taken.
15 (1) The Board shall adopt rules governing the
16 investigation and hearing of a verified complaint to
17 assure the police officer due process and to eliminate
18 conflicts of interest within the Board itself.
19 (2) Upon receipt of the initial verified complaint,
20 the Board must make a finding within 30 days of receipt
21 of the complaint as to whether sufficient evidence exists
22 to support the complaint. The Board is empowered to
23 investigate and dismiss the complaint if it finds, by a
24 vote of a majority of the members present, that there is
25 insufficient evidence to support it. Upon the initial
26 filing, the sheriff or police chief, or other employing
27 agency, of the accused officer may suspend, with or
28 without pay, the accused officer pending a decision of
29 the Board. Upon a Board finding of insufficient evidence,
30 the police officer shall be reinstated with back pay,
31 benefits, and seniority status as appropriate. The
32 sheriff or police chief, or employing agency, shall take
33 such necessary action as is ordered by the Board.
34 (3) If the Board finds, by a vote of a majority of
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1 the members present, that sufficient evidence exists to
2 support the complaint, it shall authorize a hearing
3 before an administrative law judge within 45 days of the
4 Board's finding, unless, based upon the complexity and
5 extent of the allegations and charges, additional time is
6 needed. In no event may a hearing before an
7 administrative law judge take place later than 60 days
8 after the Board's finding.
9 (i) The Board shall have the power and authority to
10 appoint administrative law judges on a contractual basis.
11 The Administrative law judges must be attorneys licensed to
12 practice law in the State of Illinois. The Board shall also
13 adopt rules governing the appointment of administrative law
14 judges and the conduct of hearings consistent with the
15 requirements of this Section. The administrative law judge
16 shall hear all evidence and prepare a written recommendation
17 of his or her findings to the Board. At the hearing the
18 accused police officer shall be afforded the opportunity to:
19 (1) Be represented by counsel;
20 (2) Be heard in his or her own defense;
21 (3) Produce evidence in his or her defense;
22 (4) Request that the Board compel the attendance of
23 witnesses and production of court records and documents.
24 (j) Once a case has been set for hearing, the person who
25 filed the verified complaint shall have the opportunity to
26 produce evidence to support any charge against a police
27 officer that he or she, while under oath, has knowingly and
28 willfully made false statements as to a material fact during
29 a homicide proceeding.
30 (1) The person who filed the verified complaint
31 shall have the opportunity to be represented by counsel
32 and shall produce evidence to support his or her charges;
33 (2) The person who filed the verified complaint may
34 request the Board to compel the attendance of witnesses
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1 and production of court records and documents.
2 (k) The Board shall have the power to issue subpoenas
3 requiring the attendance and testimony of witnesses and the
4 production of court records and documents and shall have the
5 power to administer oaths.
6 (l) The administrative law judge shall have the
7 responsibility of receiving into evidence relevant testimony
8 and documents, including court records, to support or
9 disprove the allegations made by the person filing the
10 verified complaint, and, at the close of the case, hear
11 arguments. If the administrative law judge finds that there
12 is not clear and convincing evidence to support the verified
13 complaint that the police officer has, while under oath,
14 knowingly and willfully made false statements as to a
15 material fact during a homicide proceeding, the
16 administrative law judge shall make a written recommendation
17 of dismissal to the Board. If the administrative law judge
18 finds that there is clear and convincing evidence to support
19 the verified complaint that the police officer has, while
20 under oath, knowingly and willfully made false statements as
21 to a material fact during a homicide proceeding, the
22 administrative law judge shall make a written recommendation
23 of decertification to the Board.
24 (m) Any person, with the exception of the police officer
25 who is the subject of the hearing, who is served by the Board
26 with a subpoena to appear, testify or produce evidence and
27 refuses to comply with the subpoena is guilty of a Class B
28 misdemeanor. Any circuit court or judge, upon application by
29 the Board, may compel compliance with a subpoena issued by
30 the Board.
31 (n) Within 15 days of receiving the recommendation, the
32 Board shall consider the recommendation of the administrative
33 law judge and the record of the hearing at a Board meeting.
34 If, by a two-thirds vote of the members present at the Board
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1 meeting, the Board finds that there is clear and convincing
2 evidence that the police officer has, while under oath,
3 knowingly and willfully made false statements as to a
4 material fact during a homicide proceeding, the Board shall
5 order that the police officer be decertified as a full-time
6 or part-time police officer. If less than two-thirds of the
7 members present vote to decertify the police officer, the
8 Board shall dismiss the complaint.
9 (o) The provisions of the Administrative Review Law
10 shall govern all proceedings for the judicial review of any
11 order rendered by the Board. The moving party shall pay the
12 reasonable costs of preparing and certifying the record for
13 review. If the moving party is the police officer and he or
14 she prevails, the court may award the police officer actual
15 costs incurred in all proceedings, including reasonable
16 attorney fees. If the court awards the police officer the
17 actual costs incurred in a proceeding, including reasonable
18 attorney fees, the costs and attorney fees shall be paid,
19 subject to appropriation, from the Illinois Law Enforcement
20 Training Standards Board Costs and Attorney Fees Fund, a
21 special fund that is created in the State Treasury. The Fund
22 shall consist of moneys appropriated or transferred into the
23 Fund for the purpose of making payments of costs and attorney
24 fees in accordance with this subsection (o). The Illinois Law
25 Enforcement Training Standards Board shall administer the
26 Fund and adopt rules for the administration of the Fund and
27 for the submission and disposition of claims for costs and
28 attorney fees in accordance with this subsection (o).
29 (p) If the police officer is decertified under
30 subsection (h), the Board shall notify the defendant who was
31 a party to the proceeding that resulted in the police
32 officer's decertification and his or her attorney of the
33 Board's decision. Notification shall be by certified mail,
34 return receipt requested, sent to the party's last known
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1 address and to the party's attorney if any.
2 (q) Limitation of action.
3 (1) No complaint may be filed pursuant to this
4 Section until after a verdict or other disposition is
5 rendered in the underlying case or the underlying case is
6 dismissed in the trial court.
7 (2) A complaint pursuant to this Section may not be
8 filed more than 2 years after the final resolution of the
9 case. For purposes of this Section, final resolution is
10 defined as the trial court's ruling on the State
11 post-conviction proceeding in the case in which it is
12 alleged the police officer, while under oath, knowingly
13 and willfully made false statements as to a material fact
14 during a homicide proceeding. In the event a
15 post-conviction petition is not filed, an action pursuant
16 to this Section may not be commenced more than 2 years
17 after the denial of a petition for certiorari to the
18 United States Supreme Court, or if no petition for
19 certiorari is filed, 2 years after the date such a
20 petition should have been filed. In the event of an
21 acquittal, no proceeding may be commenced pursuant to
22 this Section more than 6 years after the date upon which
23 judgment on the verdict of acquittal was entered.
24 (r) Interested parties. Only interested parties to the
25 criminal prosecution in which the police officer allegedly,
26 while under oath, knowingly and willfully made false
27 statements as to a material fact during a homicide proceeding
28 may file a verified complaint pursuant to this Section. For
29 purposes of this Section, "interested parties" include the
30 defendant and any police officer who has personal knowledge
31 that the police officer who is the subject of the complaint
32 has, while under oath, knowingly and willfully made false
33 statements as to a material fact during a homicide
34 proceeding.
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1 (Source: P.A. 91-495, eff. 1-1-00.)
2 Section 10. The Criminal Code of 1961 is amended by
3 changing Sections 9-1 and 14-3 as follows:
4 (720 ILCS 5/9-1) (from Ch. 38, par. 9-1)
5 Sec. 9-1. First degree Murder - Death penalties -
6 Exceptions - Separate Hearings - Proof - Findings - Appellate
7 procedures - Reversals.
8 (a) A person who kills an individual without lawful
9 justification commits first degree murder if, in performing
10 the acts which cause the death:
11 (1) he either intends to kill or do great bodily
12 harm to that individual or another, or knows that such
13 acts will cause death to that individual or another; or
14 (2) he knows that such acts create a strong
15 probability of death or great bodily harm to that
16 individual or another; or
17 (3) he is attempting or committing a forcible
18 felony other than second degree murder.
19 (b) Aggravating Factors. A defendant who at the time of
20 the commission of the offense has attained the age of 18 or
21 more and who has been found guilty of first degree murder may
22 be sentenced to death if:
23 (1) the murdered individual was a peace officer or
24 fireman killed in the course of performing his official
25 duties, to prevent the performance of his official
26 duties, or in retaliation for performing his official
27 duties, and the defendant knew or should have known that
28 the murdered individual was a peace officer or fireman;
29 or
30 (2) the murdered individual was an employee of an
31 institution or facility of the Department of Corrections,
32 or any similar local correctional agency, killed in the
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1 course of performing his official duties, to prevent the
2 performance of his official duties, or in retaliation for
3 performing his official duties, or the murdered
4 individual was an inmate at such institution or facility
5 and was killed on the grounds thereof, or the murdered
6 individual was otherwise present in such institution or
7 facility with the knowledge and approval of the chief
8 administrative officer thereof; or
9 (3) the defendant has been convicted of murdering
10 two or more individuals under subsection (a) of this
11 Section or under any law of the United States or of any
12 state which is substantially similar to subsection (a) of
13 this Section regardless of whether the deaths occurred
14 as the result of the same act or of several related or
15 unrelated acts so long as the deaths were the result of
16 either an intent to kill more than one person or of
17 separate acts which the defendant knew would cause death
18 or create a strong probability of death or great bodily
19 harm to the murdered individual or another; or
20 (4) the murdered individual was killed as a result
21 of the hijacking of an airplane, train, ship, bus or
22 other public conveyance; or
23 (5) the defendant committed the murder pursuant to
24 a contract, agreement or understanding by which he was to
25 receive money or anything of value in return for
26 committing the murder or procured another to commit the
27 murder for money or anything of value; or
28 (6) the murdered individual was killed in the
29 course of another felony if:
30 (a) the murdered individual:
31 (i) was actually killed by the defendant,
32 or
33 (ii) received physical injuries
34 personally inflicted by the defendant
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1 substantially contemporaneously with physical
2 injuries caused by one or more persons for
3 whose conduct the defendant is legally
4 accountable under Section 5-2 of this Code, and
5 the physical injuries inflicted by either the
6 defendant or the other person or persons for
7 whose conduct he is legally accountable caused
8 the death of the murdered individual; and
9 (b) in performing the acts which caused the
10 death of the murdered individual or which resulted
11 in physical injuries personally inflicted by the
12 defendant on the murdered individual under the
13 circumstances of subdivision (ii) of subparagraph
14 (a) of paragraph (6) of subsection (b) of this
15 Section, the defendant acted with the intent to kill
16 the murdered individual or with the knowledge that
17 his acts created a strong probability of death or
18 great bodily harm to the murdered individual or
19 another; and
20 (c) the other felony was an inherently violent
21 crimeone of the following: armed robbery, armed
22 violence, robbery, predatory criminal sexual assault
23 of a child, aggravated criminal sexual assault,
24 aggravated kidnapping, aggravated vehicular
25 hijacking, forcible detention, arson, aggravated
26 arson, aggravated stalking, burglary, residential
27 burglary, home invasion, calculated criminal drug
28 conspiracy as defined in Section 405 of the Illinois
29 Controlled Substances Act, streetgang criminal drug
30 conspiracy as defined in Section 405.2 of the
31 Illinois Controlled Substances Act, or the attempt
32 to commit an inherently violent crime. In this
33 subparagraph (c), "inherently violent crime"
34 includes, but is not limited to, armed robbery,
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1 robbery, predatory criminal sexual assault of a
2 child, aggravated criminal sexual assault,
3 aggravated kidnapping, aggravated vehicular
4 hijacking, aggravated arson, aggravated stalking,
5 residential burglary, and home invasionany of the
6 felonies listed in this subsection (c); or
7 (7) the murdered individual was under 12 years of
8 age and the death resulted from exceptionally brutal or
9 heinous behavior indicative of wanton cruelty; or
10 (8) the defendant committed the murder with intent
11 to prevent the murdered individual from testifying or
12 participating in any criminal investigation or
13 prosecution or giving material assistance to the State in
14 any investigation or prosecution, either against the
15 defendant or another; or the defendant committed the
16 murder because the murdered individual was a witness in
17 any prosecution or gave material assistance to the State
18 in any investigation or prosecution, either against the
19 defendant or another; for purposes of this paragraph (8),
20 "participating in any criminal investigation or
21 prosecution" is intended to include those appearing in
22 the proceedings in any capacity such as trial judges,
23 prosecutors, defense attorneys, investigators, witnesses,
24 or jurors; or
25 (9) the defendant, while committing an offense
26 punishable under Sections 401, 401.1, 401.2, 405, 405.2,
27 407 or 407.1 or subsection (b) of Section 404 of the
28 Illinois Controlled Substances Act, or while engaged in a
29 conspiracy or solicitation to commit such offense,
30 intentionally killed an individual or counseled,
31 commanded, induced, procured or caused the intentional
32 killing of the murdered individual; or
33 (10) the defendant was incarcerated in an
34 institution or facility of the Department of Corrections
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1 at the time of the murder, and while committing an
2 offense punishable as a felony under Illinois law, or
3 while engaged in a conspiracy or solicitation to commit
4 such offense, intentionally killed an individual or
5 counseled, commanded, induced, procured or caused the
6 intentional killing of the murdered individual; or
7 (11) the murder was committed in a cold, calculated
8 and premeditated manner pursuant to a preconceived plan,
9 scheme or design to take a human life by unlawful means,
10 and the conduct of the defendant created a reasonable
11 expectation that the death of a human being would result
12 therefrom; or
13 (12) the murdered individual was an emergency
14 medical technician - ambulance, emergency medical
15 technician - intermediate, emergency medical technician -
16 paramedic, ambulance driver, or other medical assistance
17 or first aid personnel, employed by a municipality or
18 other governmental unit, killed in the course of
19 performing his official duties, to prevent the
20 performance of his official duties, or in retaliation for
21 performing his official duties, and the defendant knew or
22 should have known that the murdered individual was an
23 emergency medical technician - ambulance, emergency
24 medical technician - intermediate, emergency medical
25 technician - paramedic, ambulance driver, or other
26 medical assistance or first aid personnel; or
27 (13) the defendant was a principal administrator,
28 organizer, or leader of a calculated criminal drug
29 conspiracy consisting of a hierarchical position of
30 authority superior to that of all other members of the
31 conspiracy, and the defendant counseled, commanded,
32 induced, procured, or caused the intentional killing of
33 the murdered person; or
34 (14) the murder was intentional and involved the
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1 infliction of torture. For the purpose of this Section
2 torture means the infliction of or subjection to extreme
3 physical pain, motivated by an intent to increase or
4 prolong the pain, suffering or agony of the victim; or
5 (15) the murder was committed as a result of the
6 intentional discharge of a firearm by the defendant from
7 a motor vehicle and the victim was not present within the
8 motor vehicle; or
9 (16) the murdered individual was 60 years of age or
10 older and the death resulted from exceptionally brutal or
11 heinous behavior indicative of wanton cruelty; or
12 (17) the murdered individual was a disabled person
13 and the defendant knew or should have known that the
14 murdered individual was disabled. For purposes of this
15 paragraph (17), "disabled person" means a person who
16 suffers from a permanent physical or mental impairment
17 resulting from disease, an injury, a functional disorder,
18 or a congenital condition that renders the person
19 incapable of adequately providing for his or her own
20 health or personal care; or
21 (18) the murder was committed by reason of any
22 person's activity as a community policing volunteer or to
23 prevent any person from engaging in activity as a
24 community policing volunteer; or
25 (19) the murdered individual was subject to an
26 order of protection and the murder was committed by a
27 person against whom the same order of protection was
28 issued under the Illinois Domestic Violence Act of 1986;
29 or
30 (20) the murdered individual was known by the
31 defendant to be a teacher or other person employed in any
32 school and the teacher or other employee is upon the
33 grounds of a school or grounds adjacent to a school, or
34 is in any part of a building used for school purposes; or
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1 (21) the murder was committed by the defendant in
2 connection with or as a result of the offense of
3 terrorism as defined in Section 29D-30 of this Code.
4 (c) Consideration of factors in Aggravation and
5 Mitigation.
6 The court shall consider, or shall instruct the jury to
7 consider any aggravating and any mitigating factors which are
8 relevant to the imposition of the death penalty. Aggravating
9 factors may include but need not be limited to those factors
10 set forth in subsection (b). Mitigating factors may include
11 but need not be limited to the following:
12 (1) the defendant has no significant history of
13 prior criminal activity;
14 (2) the murder was committed while the defendant
15 was under the influence of extreme mental or emotional
16 disturbance, although not such as to constitute a defense
17 to prosecution;
18 (3) the murdered individual was a participant in
19 the defendant's homicidal conduct or consented to the
20 homicidal act;
21 (4) the defendant acted under the compulsion of
22 threat or menace of the imminent infliction of death or
23 great bodily harm;
24 (5) the defendant was not personally present during
25 commission of the act or acts causing death;.
26 (6) the defendant's background includes a history
27 of extreme emotional or physical abuse;
28 (7) the defendant suffers from a reduced mental
29 capacity.
30 (d) Separate sentencing hearing.
31 Where requested by the State, the court shall conduct a
32 separate sentencing proceeding to determine the existence of
33 factors set forth in subsection (b) and to consider any
34 aggravating or mitigating factors as indicated in subsection
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1 (c). The proceeding shall be conducted:
2 (1) before the jury that determined the defendant's
3 guilt; or
4 (2) before a jury impanelled for the purpose of the
5 proceeding if:
6 A. the defendant was convicted upon a plea of
7 guilty; or
8 B. the defendant was convicted after a trial
9 before the court sitting without a jury; or
10 C. the court for good cause shown discharges
11 the jury that determined the defendant's guilt; or
12 (3) before the court alone if the defendant waives
13 a jury for the separate proceeding.
14 (e) Evidence and Argument.
15 During the proceeding any information relevant to any of
16 the factors set forth in subsection (b) may be presented by
17 either the State or the defendant under the rules governing
18 the admission of evidence at criminal trials. Any
19 information relevant to any additional aggravating factors or
20 any mitigating factors indicated in subsection (c) may be
21 presented by the State or defendant regardless of its
22 admissibility under the rules governing the admission of
23 evidence at criminal trials. The State and the defendant
24 shall be given fair opportunity to rebut any information
25 received at the hearing.
26 (f) Proof.
27 The burden of proof of establishing the existence of any
28 of the factors set forth in subsection (b) is on the State
29 and shall not be satisfied unless established beyond a
30 reasonable doubt.
31 (g) Procedure - Jury.
32 If at the separate sentencing proceeding the jury finds
33 that none of the factors set forth in subsection (b) exists,
34 the court shall sentence the defendant to a term of
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1 imprisonment under Chapter V of the Unified Code of
2 Corrections. If there is a unanimous finding by the jury
3 that one or more of the factors set forth in subsection (b)
4 exist, the jury shall consider aggravating and mitigating
5 factors as instructed by the court and shall determine
6 whether the sentence of death shall be imposed. If the jury
7 determines unanimously, after weighing the factors in
8 aggravation and mitigation, that death is the appropriate
9 sentencethat there are no mitigating factors sufficient to
10 preclude the imposition of the death sentence, the court
11 shall sentence the defendant to death. If the court does not
12 concur with the jury determination that death is the
13 appropriate sentence, the court shall set forth reasons in
14 writing including what facts or circumstances the court
15 relied upon, along with any relevant documents, that
16 compelled the court to non-concur with the sentence. This
17 document and any attachments shall be part of the record for
18 appellate review. The court shall be bound by the jury's
19 sentencing determination.
20 If after weighing the factors in aggravation and
21 mitigation, one or more jurors determines that death is not
22 the appropriate sentence,Unless the jury unanimously finds
23 that there are no mitigating factors sufficient to preclude
24 the imposition of the death sentence the court shall sentence
25 the defendant to a term of imprisonment under Chapter V of
26 the Unified Code of Corrections.
27 (h) Procedure - No Jury.
28 In a proceeding before the court alone, if the court
29 finds that none of the factors found in subsection (b)
30 exists, the court shall sentence the defendant to a term of
31 imprisonment under Chapter V of the Unified Code of
32 Corrections.
33 If the Court determines that one or more of the factors
34 set forth in subsection (b) exists, the Court shall consider
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1 any aggravating and mitigating factors as indicated in
2 subsection (c). If the Court determines, after weighing the
3 factors in aggravation and mitigation, that death is the
4 appropriate sentencethat there are no mitigating factors
5 sufficient to preclude the imposition of the death sentence,
6 the Court shall sentence the defendant to death.
7 IfUnless the court finds that there are no mitigating
8 factors sufficient to preclude the imposition of the sentence
9 of death is not the appropriate sentence, the court shall
10 sentence the defendant to a term of imprisonment under
11 Chapter V of the Unified Code of Corrections.
12 (h-5) Decertification as a capital case.
13 In a case in which the defendant has been found guilty of
14 first degree murder by a judge or jury, or a case on remand
15 for resentencing, and the State seeks the death penalty as an
16 appropriate sentence, on the court's own motion or the
17 written motion of the defendant, the court may decertify the
18 case as a death penalty case if the court finds that the only
19 evidence supporting the defendant's conviction is the
20 uncorroborated testimony of an informant witness, as defined
21 in Section 115-21 of the Code of Criminal Procedure of 1963,
22 concerning the confession or admission of the defendant or
23 that the sole evidence against the defendant is a single
24 eyewitness or single accomplice without any other
25 corroborating evidence. If the court decertifies the case as
26 a capital case under either of the grounds set forth above,
27 the court shall issue a written finding. The State may
28 pursue its right to appeal the decertification pursuant to
29 Supreme Court Rule 604(a)(1). If the court does not
30 decertify the case as a capital case, the matter shall
31 proceed to the eligibility phase of the sentencing hearing.
32 (i) Appellate Procedure.
33 The conviction and sentence of death shall be subject to
34 automatic review by the Supreme Court. Such review shall be
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1 in accordance with rules promulgated by the Supreme Court.
2 The Illinois Supreme Court may overturn the death sentence,
3 and order the imposition of imprisonment under Chapter V of
4 the Unified Code of Corrections if the court finds that the
5 death sentence is fundamentally unjust as applied to the
6 particular case. If the Illinois Supreme Court finds that the
7 death sentence is fundamentally unjust as applied to the
8 particular case, independent of any procedural grounds for
9 relief, the Illinois Supreme Court shall issue a written
10 opinion explaining this finding.
11 (j) Disposition of reversed death sentence.
12 In the event that the death penalty in this Act is held
13 to be unconstitutional by the Supreme Court of the United
14 States or of the State of Illinois, any person convicted of
15 first degree murder shall be sentenced by the court to a term
16 of imprisonment under Chapter V of the Unified Code of
17 Corrections.
18 In the event that any death sentence pursuant to the
19 sentencing provisions of this Section is declared
20 unconstitutional by the Supreme Court of the United States or
21 of the State of Illinois, the court having jurisdiction over
22 a person previously sentenced to death shall cause the
23 defendant to be brought before the court, and the court shall
24 sentence the defendant to a term of imprisonment under
25 Chapter V of the Unified Code of Corrections.
26 (k) Guidelines for seeking the death penalty.
27 The Attorney General and State's Attorneys Association
28 shall consult on voluntary guidelines for procedures
29 governing whether or not to seek the death penalty. The
30 guidelines do not have the force of law and are only advisory
31 in nature.
32 (Source: P.A. 91-357, eff. 7-29-99; 91-434, eff. 1-1-00;
33 92-854, eff. 12-5-02.)
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1 (720 ILCS 5/14-3) (from Ch. 38, par. 14-3)
2 Sec. 14-3. Exemptions. The following activities shall
3 be exempt from the provisions of this Article:
4 (a) Listening to radio, wireless and television
5 communications of any sort where the same are publicly made;
6 (b) Hearing conversation when heard by employees of any
7 common carrier by wire incidental to the normal course of
8 their employment in the operation, maintenance or repair of
9 the equipment of such common carrier by wire so long as no
10 information obtained thereby is used or divulged by the
11 hearer;
12 (c) Any broadcast by radio, television or otherwise
13 whether it be a broadcast or recorded for the purpose of
14 later broadcasts of any function where the public is in
15 attendance and the conversations are overheard incidental to
16 the main purpose for which such broadcasts are then being
17 made;
18 (d) Recording or listening with the aid of any device to
19 any emergency communication made in the normal course of
20 operations by any federal, state or local law enforcement
21 agency or institutions dealing in emergency services,
22 including, but not limited to, hospitals, clinics, ambulance
23 services, fire fighting agencies, any public utility,
24 emergency repair facility, civilian defense establishment or
25 military installation;
26 (e) Recording the proceedings of any meeting required to
27 be open by the Open Meetings Act, as amended;
28 (f) Recording or listening with the aid of any device to
29 incoming telephone calls of phone lines publicly listed or
30 advertised as consumer "hotlines" by manufacturers or
31 retailers of food and drug products. Such recordings must be
32 destroyed, erased or turned over to local law enforcement
33 authorities within 24 hours from the time of such recording
34 and shall not be otherwise disseminated. Failure on the part
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1 of the individual or business operating any such recording or
2 listening device to comply with the requirements of this
3 subsection shall eliminate any civil or criminal immunity
4 conferred upon that individual or business by the operation
5 of this Section;
6 (g) With prior notification to the State's Attorney of
7 the county in which it is to occur, recording or listening
8 with the aid of any device to any conversation where a law
9 enforcement officer, or any person acting at the direction of
10 law enforcement, is a party to the conversation and has
11 consented to it being intercepted or recorded under
12 circumstances where the use of the device is necessary for
13 the protection of the law enforcement officer or any person
14 acting at the direction of law enforcement, in the course of
15 an investigation of a forcible felony, a felony violation of
16 the Illinois Controlled Substances Act, a felony violation of
17 the Cannabis Control Act, or any "streetgang related" or
18 "gang-related" felony as those terms are defined in the
19 Illinois Streetgang Terrorism Omnibus Prevention Act. Any
20 recording or evidence derived as the result of this exemption
21 shall be inadmissible in any proceeding, criminal, civil or
22 administrative, except (i) where a party to the conversation
23 suffers great bodily injury or is killed during such
24 conversation, or (ii) when used as direct impeachment of a
25 witness concerning matters contained in the interception or
26 recording. The Director of the Department of State Police
27 shall issue regulations as are necessary concerning the use
28 of devices, retention of tape recordings, and reports
29 regarding their use;
30 (g-5) With approval of the State's Attorney of the
31 county in which it is to occur, recording or listening with
32 the aid of any device to any conversation where a law
33 enforcement officer, or any person acting at the direction of
34 law enforcement, is a party to the conversation and has
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1 consented to it being intercepted or recorded in the course
2 of an investigation of any offense defined in Article 29D of
3 this Code. In all such cases, an application for an order
4 approving the previous or continuing use of an eavesdropping
5 device must be made within 48 hours of the commencement of
6 such use. In the absence of such an order, or upon its
7 denial, any continuing use shall immediately terminate. The
8 Director of State Police shall issue rules as are necessary
9 concerning the use of devices, retention of tape recordings,
10 and reports regarding their use.
11 Any recording or evidence obtained or derived in the
12 course of an investigation of any offense defined in Article
13 29D of this Code shall, upon motion of the State's Attorney
14 or Attorney General prosecuting any violation of Article 29D,
15 be reviewed in camera with notice to all parties present by
16 the court presiding over the criminal case, and, if ruled by
17 the court to be relevant and otherwise admissible, it shall
18 be admissible at the trial of the criminal case.
19 This subsection (g-5) is inoperative on and after January
20 1, 2005. No conversations recorded or monitored pursuant to
21 this subsection (g-5) shall be inadmissable in a court of law
22 by virtue of the repeal of this subsection (g-5) on January
23 1, 2005;.
24 (h) Recordings made simultaneously with a video
25 recording of an oral conversation between a peace officer,
26 who has identified his or her office, and a person stopped
27 for an investigation of an offense under the Illinois Vehicle
28 Code;
29 (i) Recording of a conversation made by or at the
30 request of a person, not a law enforcement officer or agent
31 of a law enforcement officer, who is a party to the
32 conversation, under reasonable suspicion that another party
33 to the conversation is committing, is about to commit, or has
34 committed a criminal offense against the person or a member
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1 of his or her immediate household, and there is reason to
2 believe that evidence of the criminal offense may be obtained
3 by the recording; and
4 (j) The use of a telephone monitoring device by either
5 (1) a corporation or other business entity engaged in
6 marketing or opinion research or (2) a corporation or other
7 business entity engaged in telephone solicitation, as defined
8 in this subsection, to record or listen to oral telephone
9 solicitation conversations or marketing or opinion research
10 conversations by an employee of the corporation or other
11 business entity when:
12 (i) the monitoring is used for the purpose of
13 service quality control of marketing or opinion research
14 or telephone solicitation, the education or training of
15 employees or contractors engaged in marketing or opinion
16 research or telephone solicitation, or internal research
17 related to marketing or opinion research or telephone
18 solicitation; and
19 (ii) the monitoring is used with the consent of at
20 least one person who is an active party to the marketing
21 or opinion research conversation or telephone
22 solicitation conversation being monitored.
23 No communication or conversation or any part, portion, or
24 aspect of the communication or conversation made, acquired,
25 or obtained, directly or indirectly, under this exemption
26 (j), may be, directly or indirectly, furnished to any law
27 enforcement officer, agency, or official for any purpose or
28 used in any inquiry or investigation, or used, directly or
29 indirectly, in any administrative, judicial, or other
30 proceeding, or divulged to any third party.
31 When recording or listening authorized by this subsection
32 (j) on telephone lines used for marketing or opinion research
33 or telephone solicitation purposes results in recording or
34 listening to a conversation that does not relate to marketing
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1 or opinion research or telephone solicitation; the person
2 recording or listening shall, immediately upon determining
3 that the conversation does not relate to marketing or opinion
4 research or telephone solicitation, terminate the recording
5 or listening and destroy any such recording as soon as is
6 practicable.
7 Business entities that use a telephone monitoring or
8 telephone recording system pursuant to this exemption (j)
9 shall provide current and prospective employees with notice
10 that the monitoring or recordings may occur during the course
11 of their employment. The notice shall include prominent
12 signage notification within the workplace.
13 Business entities that use a telephone monitoring or
14 telephone recording system pursuant to this exemption (j)
15 shall provide their employees or agents with access to
16 personal-only telephone lines which may be pay telephones,
17 that are not subject to telephone monitoring or telephone
18 recording.
19 For the purposes of this subsection (j), "telephone
20 solicitation" means a communication through the use of a
21 telephone by live operators:
22 (i) soliciting the sale of goods or services;
23 (ii) receiving orders for the sale of goods or
24 services;
25 (iii) assisting in the use of goods or services; or
26 (iv) engaging in the solicitation, administration,
27 or collection of bank or retail credit accounts.
28 For the purposes of this subsection (j), "marketing or
29 opinion research" means a marketing or opinion research
30 interview conducted by a live telephone interviewer engaged
31 by a corporation or other business entity whose principal
32 business is the design, conduct, and analysis of polls and
33 surveys measuring the opinions, attitudes, and responses of
34 respondents toward products and services, or social or
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1 political issues, or both; and
2 (k) Recording the interview or statement of any person
3 when the person knows that the interview is being conducted
4 by a law enforcement officer or prosecutor and the interview
5 takes place at a police station that is currently
6 participating in the Custodial Interview Pilot Program
7 established under the Illinois Criminal Justice Information
8 Act.
9 (Source: P.A. 91-357, eff. 7-29-99; 92-854, eff. 12-5-02.)
10 Section 15. The Code of Criminal Procedure of 1963 is
11 amended by changing Sections 114-13, 116-3, 122-1, and
12 122-2.1 and adding Article 107A and Sections 114-15, 115-21,
13 115-22, 116-5, and 122-2.2 as follows:
14 (725 ILCS 5/107A Art. heading new)
15 ARTICLE 107A. LINEUP AND PHOTO SPREAD PROCEDURE
16 (725 ILCS 5/107A-5 new)
17 Sec. 107A-5. Lineup and photo spread procedure.
18 (a) All lineups shall be photographed or otherwise
19 recorded. These photographs shall be disclosed to the accused
20 and his or her defense counsel during discovery proceedings
21 as provided in Illinois Supreme Court Rules. All photographs
22 of suspects shown to an eyewitness during the photo spread
23 shall be disclosed to the accused and his or her defense
24 counsel during discovery proceedings as provided in Illinois
25 Supreme Court Rules.
26 (b) Each eyewitness who views a lineup or photo spread
27 shall sign a form containing the following information:
28 (1) The suspect might not be in the lineup or photo
29 spread and the eyewitness is not obligated to make an
30 identification.
31 (2) The eyewitness should not assume that the
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1 person administering the lineup or photo spread knows
2 which person is the suspect in the case.
3 (c) Suspects in a lineup or photo spread should not
4 appear to be substantially different from "fillers" or
5 "distracters" in the lineup or photo spread, based on the
6 eyewitness' previous description of the perpetrator, or based
7 on other factors that would draw attention to the suspect.
8 (725 ILCS 5/107A-10 new)
9 Sec. 107A-10. Pilot study on sequential lineup
10 procedures.
11 (a) Legislative intent. Because the goal of a police
12 investigation is to apprehend the person or persons
13 responsible for committing a crime, it is useful to conduct a
14 pilot study in the field on the effectiveness of the
15 sequential method for lineup procedures.
16 (b) Establishment of pilot jurisdictions. The Department
17 of State Police shall select 3 police departments to
18 participate in a one-year pilot study on the effectiveness of
19 the sequential lineup method for photo and live lineup
20 procedures. One such pilot jurisdiction shall be a police
21 district within a police department in a municipality whose
22 population is at least 500,000 residents; one such pilot
23 jurisdiction shall be a police department in a municipality
24 whose population is at least 100,000 but less than 500,000;
25 and one such pilot jurisdiction shall be a police department
26 in a municipality whose population is less than 100,000. All
27 such pilot jurisdictions shall be selected no later than
28 January 1, 2004.
29 (c) Sequential lineup procedures in pilot jurisdictions.
30 For any offense alleged to have been committed in a pilot
31 jurisdiction on or after January 1, 2004, selected lineup
32 identification procedure shall be presented in the sequential
33 method in which a witness is shown lineup participants one at
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1 a time, using the following procedures:
2 (1) The witness shall be requested to state whether
3 the individual shown is the perpetrator of the crime
4 prior to viewing the next lineup participant. Only one
5 member of the lineup shall be a suspect and the remainder
6 shall be "fillers" who are not suspects but fit the
7 general description of the offender without the suspect
8 unduly standing out;
9 (2) The lineup administrator shall be someone who
10 is not aware of which member of the lineup is the suspect
11 in the case; and
12 (3) Prior to presenting the lineup using the
13 sequential method the lineup administrator shall:
14 (A) Inform the witness that the perpetrator
15 may or may not be among those shown, and the witness
16 should not feel compelled to make an identification;
17 (B) Inform the witness that he or she will
18 view individuals one at a time and will be requested
19 to state whether the individual shown is the
20 perpetrator of the crime, prior to viewing the next
21 lineup participant; and
22 (C) Ask the witness to state in his or her own
23 words how sure he or she is that the person
24 identified is the actual offender. During the
25 statement, or as soon thereafter as reasonably
26 possible, the witness's actual words shall be
27 documented.
28 (d) Application. This Section applies to selected live
29 lineups that are composed and presented at a police station
30 and to selected photo lineups regardless of where presented;
31 provided that this Section does not apply in police
32 investigations in which a spontaneous identification is
33 possible and no lineup procedure is being used. This Section
34 does not affect the right to counsel afforded by the U.S. or
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1 Illinois Constitutions or State law at any stage of a
2 criminal proceeding.
3 (e) Selection of lineups. The participating
4 jurisdictions shall develop a protocol for the selection and
5 administration of lineups which is practical, designed to
6 elicit information for comparative evaluation purposes, and
7 is consistent with objective scientific research methodology.
8 (f) Training and administrators. The Department of State
9 Police shall offer training to police officers and any other
10 appropriate personnel on the sequential method of conducting
11 lineup procedures in the pilot jurisdictions and the
12 requirements of this Section. The Department of State Police
13 may seek funding for training and administration from the
14 Illinois Criminal Justice Information Authority and the
15 Illinois Law Enforcement Training Standards Board if
16 necessary.
17 (g) Report on the pilot study. The Department of State
18 Police shall gather information from each of the
19 participating police departments selected as a pilot
20 jurisdiction with respect to the effectiveness of the
21 sequential method for lineup procedures and shall file a
22 report of its findings with the Governor and the General
23 Assembly no later than April 1, 2005.
24 (725 ILCS 5/114-13) (from Ch. 38, par. 114-13)
25 Sec. 114-13. Discovery in criminal cases.
26 (a) Discovery procedures in criminal cases shall be in
27 accordance with Supreme Court Rules.
28 (b) Any public investigative, law enforcement, or other
29 public agency responsible for investigating any homicide
30 offense or participating in an investigation of any homicide
31 offense, other than defense investigators, shall provide to
32 the authority prosecuting the offense all investigative
33 material, including but not limited to reports, memoranda,
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1 and field notes, that have been generated by or have come
2 into the possession of the investigating agency concerning
3 the homicide offense being investigated. In addition, the
4 investigating agency shall provide to the prosecuting
5 authority any material or information, including but not
6 limited to reports, memoranda, and field notes, within its
7 possession or control that would tend to negate the guilt of
8 the accused of the offense charged or reduce his or her
9 punishment for the homicide offense. Every investigative and
10 law enforcement agency in this State shall adopt policies to
11 ensure compliance with these standards. Any investigative,
12 law enforcement, or other public agency responsible for
13 investigating any "non-homicide felony" offense or
14 participating in an investigation of any "non-homicide
15 felony" offense, other than defense investigators, shall
16 provide to the authority prosecuting the offense all
17 investigative material, including but not limited to reports
18 and memoranda that have been generated by or have come into
19 the possession of the investigating agency concerning the
20 "non-homicide felony" offense being investigated. In
21 addition, the investigating agency shall provide to the
22 prosecuting authority any material or information, including
23 but not limited to reports and memoranda, within its
24 possession or control that would tend to negate the guilt of
25 the accused of the "non-homicide felony" offense charged or
26 reduce his or her punishment for the "non-homicide felony"
27 offense. This obligation to furnish exculpatory evidence
28 exists whether the information was recorded or documented in
29 any form. Every investigative and law enforcement agency in
30 this State shall adopt policies to ensure compliance with
31 these standards.
32 (Source: Laws 1963, p. 2836.)
33 (725 ILCS 5/114-15 new)
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1 Sec. 114-15. Mental retardation.
2 (a) In a first degree murder case in which the State
3 seeks the death penalty as an appropriate sentence, any party
4 may raise the issue of the defendant's mental retardation by
5 motion. A defendant wishing to raise the issue of his or her
6 mental retardation shall provide written notice to the State
7 and the court as soon as the defendant reasonably believes
8 such issue will be raised.
9 (b) The issue of the defendant's mental retardation
10 shall be determined in a pretrial hearing. The court shall be
11 the fact finder on the issue of the defendant's mental
12 retardation and shall determine the issue by a preponderance
13 of evidence in which the moving party has the burden of
14 proof. The court may appoint an expert in the field of mental
15 retardation. The defendant and the State may offer experts
16 from the field of mental retardation. The court shall
17 determine admissibility of evidence and qualification as an
18 expert.
19 (c) If after a plea of guilty to first degree murder, or
20 a finding of guilty of first degree murder in a bench trial,
21 or a verdict of guilty for first degree murder in a jury
22 trial, or on a matter remanded from the Supreme Court for
23 sentencing for first degree murder, and the State seeks the
24 death penalty as an appropriate sentence, the defendant may
25 raise the issue of defendant's mental retardation not at
26 eligibility but at aggravation and mitigation. The defendant
27 and the State may offer experts from the field of mental
28 retardation. The court shall determine admissibility of
29 evidence and qualification as an expert.
30 (d) In determining whether the defendant is mentally
31 retarded, the mental retardation must have manifested itself
32 by the age of 18. IQ tests and psychometric tests
33 administered to the defendant must be the kind and type
34 recognized by experts in the field of mental retardation. In
-34- LRB093 04396 WGH 16428 a
1 order for the defendant to be considered mentally retarded, a
2 low IQ must be accompanied by significant deficits in
3 adaptive behavior in at least 2 of the following skill areas:
4 communication, self-care, social or interpersonal skills,
5 home living, self-direction, academics, health and safety,
6 use of community resources, and work. An intelligence
7 quotient (IQ) of 75 or below is presumptive evidence of
8 mental retardation.
9 (e) Evidence of mental retardation that did not result
10 in disqualifying the case as a capital case, may be
11 introduced as evidence in mitigation during a capital
12 sentencing hearing. A failure of the court to determine that
13 the defendant is mentally retarded does not preclude the
14 court during trial from allowing evidence relating to mental
15 disability should the court deem it appropriate.
16 (f) If the court determines at a pretrial hearing or
17 after remand that a capital defendant is mentally retarded,
18 and the State does not appeal pursuant to Supreme Court Rule
19 604, the case shall no longer be considered a capital case
20 and the procedural guidelines established for capital cases
21 shall no longer be applicable to the defendant. In that
22 case, the defendant shall be sentenced under the sentencing
23 provisions of Chapter V of the Unified Code of Corrections.
24 (725 ILCS 5/115-21 new)
25 Sec. 115-21. Informant testimony.
26 (a) For the purposes of this Section, "informant" means
27 someone who is purporting to testify about admissions made to
28 him or her by the accused while incarcerated in a penal
29 institution contemporaneously.
30 (b) This Section applies to any capital case in which
31 the prosecution attempts to introduce evidence of
32 incriminating statements made by the accused to or overheard
33 by an informant.
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1 (c) In any case under this Section, the prosecution
2 shall timely disclose in discovery:
3 (1) the complete criminal history of the informant;
4 (2) any deal, promise, inducement, or benefit that
5 the offering party has made or will make in the future to
6 the informant;
7 (3) the statements made by the accused;
8 (4) the time and place of the statements, the time
9 and place of their disclosure to law enforcement
10 officials, and the names of all persons who were present
11 when the statements were made;
12 (5) whether at any time the informant recanted that
13 testimony or statement and, if so, the time and place of
14 the recantation, the nature of the recantation, and the
15 names of the persons who were present at the recantation;
16 (6) other cases in which the informant testified,
17 provided that the existence of such testimony can be
18 ascertained through reasonable inquiry and whether the
19 informant received any promise, inducement, or benefit in
20 exchange for or subsequent to that testimony or
21 statement; and
22 (7) any other information relevant to the
23 informant's credibility.
24 (d) In any case under this Section, the prosecution must
25 timely disclose its intent to introduce the testimony of an
26 informant. The court shall conduct a hearing to determine
27 whether the testimony of the informant is reliable, unless
28 the defendant waives such a hearing. If the prosecution
29 fails to show by a preponderance of the evidence that the
30 informant's testimony is reliable, the court shall not allow
31 the testimony to be heard at trial. At this hearing, the
32 court shall consider the factors enumerated in subsection (c)
33 as well as any other factors relating to reliability.
34 (e) A hearing required under subsection (d) does not
-36- LRB093 04396 WGH 16428 a
1 apply to statements covered under subsection (b) that are
2 lawfully recorded.
3 (f) This Section applies to all death penalty
4 prosecutions initiated on or after the effective date of this
5 amendatory Act of the 93rd General Assembly.
6 (725 ILCS 5/115-22 new)
7 Sec. 115-22. Witness inducements. When the State
8 intends to introduce the testimony of a witness in a capital
9 case, the State shall, before trial, disclose to the
10 defendant and to his or her defense counsel the following
11 information, which shall be reduced to writing:
12 (1) whether the witness has received or been
13 promised anything, including pay, immunity from
14 prosecution, leniency in prosecution, or personal
15 advantage, in exchange for testimony;
16 (2) any other case in which the witness testified
17 or offered statements against an individual but was not
18 called, and whether the statements were admitted in the
19 case, and whether the witness received any deal, promise,
20 inducement, or benefit in exchange for that testimony or
21 statement; provided that the existence of such testimony
22 can be ascertained through reasonable inquiry;
23 (3) whether the witness has ever changed his or her
24 testimony;
25 (4) the criminal history of the witness; and
26 (5) any other evidence relevant to the credibility
27 of the witness.
28 (725 ILCS 5/116-3)
29 Sec. 116-3. Motion for fingerprint or forensic testing
30 not available at trial regarding actual innocence.
31 (a) A defendant may make a motion before the trial court
32 that entered the judgment of conviction in his or her case
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1 for the performance of fingerprint or forensic DNA testing,
2 including comparison analysis of genetic marker groupings of
3 the evidence collected by criminal justice agencies pursuant
4 to the alleged offense, to those of the defendant, to those
5 of other forensic evidence, and to those maintained under
6 subsection (f) of Section 5-4-3 of the Unified Code of
7 Corrections, on evidence that was secured in relation to the
8 trial which resulted in his or her conviction, but which was
9 not subject to the testing which is now requested because the
10 technology for the testing was not available at the time of
11 trial. Reasonable notice of the motion shall be served upon
12 the State.
13 (b) The defendant must present a prima facie case that:
14 (1) identity was the issue in the trial which
15 resulted in his or her conviction; and
16 (2) the evidence to be tested has been subject to a
17 chain of custody sufficient to establish that it has not
18 been substituted, tampered with, replaced, or altered in
19 any material aspect.
20 (c) The trial court shall allow the testing under
21 reasonable conditions designed to protect the State's
22 interests in the integrity of the evidence and the testing
23 process upon a determination that:
24 (1) the result of the testing has the scientific
25 potential to produce new, noncumulative evidence
26 materially relevant to the defendant's assertion of
27 actual innocence even though the results may not
28 completely exonerate the defendant;
29 (2) the testing requested employs a scientific
30 method generally accepted within the relevant scientific
31 community.
32 (Source: P.A. 90-141, eff. 1-1-98.)
33 (725 ILCS 5/116-5 new)
-38- LRB093 04396 WGH 16428 a
1 Sec. 116-5. Motion for DNA database search (genetic
2 marker groupings comparison analysis).
3 (a) Upon motion by a defendant charged with any offense
4 where DNA evidence may be material to the defense
5 investigation or relevant at trial, a court may order a DNA
6 database search by the Department of State Police. Such
7 analysis may include comparing:
8 (1) the genetic profile from forensic evidence that
9 was secured in relation to the trial against the genetic
10 profile of the defendant,
11 (2) the genetic profile of items of forensic
12 evidence secured in relation to trial to the genetic
13 profile of other forensic evidence secured in relation to
14 trial, or
15 (3) the genetic profiles referred to in
16 subdivisions (1) and (2) against:
17 (i) genetic profiles of offenders maintained
18 under subsection (f) of Section 5-4-3 of the Unified
19 Code of Corrections, or
20 (ii) genetic profiles, including but not
21 limited to, profiles from unsolved crimes maintained
22 in state or local DNA databases by law enforcement
23 agencies.
24 (b) If appropriate federal criteria are met, the court
25 may order the Department of State Police to request the
26 National DNA index system to search its database of genetic
27 profiles.
28 (c) If requested by the defense, a defense
29 representative shall be allowed to view any genetic marker
30 grouping analysis conducted by the Department of State
31 Police. The defense shall be provided with copies of all
32 documentation, correspondence, including digital
33 correspondence, notes, memoranda, and reports generated in
34 relation to the analysis.
-39- LRB093 04396 WGH 16428 a
1 (d) Reasonable notice of the motion shall be served upon
2 the State.
3 (725 ILCS 5/122-1) (from Ch. 38, par. 122-1)
4 Sec. 122-1. Petition in the trial court.
5 (a) Any person imprisoned in the penitentiary may
6 institute a proceeding under this Article if the personwho
7 asserts that:
8 (1) in the proceedings which resulted in his or her
9 conviction there was a substantial denial of his or her
10 rights under the Constitution of the United States or of
11 the State of Illinois or both; ormay institute a
12 proceeding under this Article.
13 (2) the death penalty was imposed and there is
14 newly discovered evidence not available to the person at
15 the time of the proceeding that resulted in his or her
16 conviction that establishes a substantial basis to
17 believe that the defendant is actually innocent by clear
18 and convincing evidence.
19 (a-5) A proceeding under paragraph (2) of subsection (a)
20 may be commenced within a reasonable period of time after the
21 person's conviction notwithstanding any other provisions of
22 this Article. In such a proceeding regarding actual
23 innocence, if the court determines the petition is frivolous
24 or is patently without merit, it shall dismiss the petition
25 in a written order, specifying the findings of fact and
26 conclusions of law it made in reaching its decision. Such
27 order of dismissal is a final judgment and shall be served
28 upon the petitioner by certified mail within 10 days of its
29 entry.
30 (b) The proceeding shall be commenced by filing with the
31 clerk of the court in which the conviction took place a
32 petition (together with a copy thereof) verified by
33 affidavit. Petitioner shall also serve another copy upon the
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1 State's Attorney by any of the methods provided in Rule 7 of
2 the Supreme Court. The clerk shall docket the petition for
3 consideration by the court pursuant to Section 122-2.1 upon
4 his or her receipt thereof and bring the same promptly to the
5 attention of the court.
6 (c) Except as otherwise provided in subsection (a-5), if
7 the petitioner is under sentence of death, no proceedings
8 under this Article shall be commenced more than 6 months
9 after the denial of a petition for certiorari to the United
10 States Supreme Court on direct appeal, or more than 6 months
11 from the date for filing such a petition if none is filed,
12 unless the petitioner alleges facts showing that the delay
13 was not due to his or her culpable negligence.
14 When a defendant has a sentence other than death, no
15 proceedings under this Article shall be commenced more than 6
16 months after the denial of the Petition for Leave to Appeal
17 to the Illinois Supreme Court, or more than 6 months from the
18 date for filing such a petition if none is filed, unless the
19 petitioner alleges facts showing that the delay was not due
20 to his or her culpable negligence.
21 This limitation does not apply to a petition advancing a
22 claim of actual innocence.no proceedings under this Article
23 shall be commenced more than 6 months after the denial of a
24 petition for leave to appeal or the date for filing such a
25 petition if none is filed or more than 45 days after the
26 defendant files his or her brief in the appeal of the
27 sentence before the Illinois Supreme Court (or more than 45
28 days after the deadline for the filing of the defendant's
29 brief with the Illinois Supreme Court if no brief is filed)
30 or 3 years from the date of conviction, whichever is sooner,
31 unless the petitioner alleges facts showing that the delay
32 was not due to his or her culpable negligence.
33 (d) A person seeking relief by filing a petition under
34 this Section must specify in the petition or its heading that
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1 it is filed under this Section. A trial court that has
2 received a petition complaining of a conviction or sentence
3 that fails to specify in the petition or its heading that it
4 is filed under this Section need not evaluate the petition to
5 determine whether it could otherwise have stated some grounds
6 for relief under this Article.
7 (e) A proceeding under this Article may not be commenced
8 on behalf of a defendant who has been sentenced to death
9 without the written consent of the defendant, unless the
10 defendant, because of a mental or physical condition, is
11 incapable of asserting his or her own claim.
12 (Source: P.A. 89-284, eff. 1-1-96; 89-609, eff. 1-1-97;
13 89-684, eff. 6-1-97; 90-14, eff. 7-1-97.)
14 (725 ILCS 5/122-2.1) (from Ch. 38, par. 122-2.1)
15 Sec. 122-2.1. (a) Within 90 days after the filing and
16 docketing of each petition, the court shall examine such
17 petition and enter an order thereon pursuant to this Section.
18 (1) If the petitioner is under sentence of death
19 and is without counsel and alleges that he is without
20 means to procure counsel, he shall state whether or not
21 he wishes counsel to be appointed to represent him. If
22 appointment of counsel is so requested, the court shall
23 appoint counsel if satisfied that the petitioner has no
24 means to procure counsel.
25 (2) If the petitioner is sentenced to imprisonment
26 and the court determines the petition is frivolous or is
27 patently without merit, it shall dismiss the petition in
28 a written order, specifying the findings of fact and
29 conclusions of law it made in reaching its decision.
30 Such order of dismissal is a final judgment and shall be
31 served upon the petitioner by certified mail within 10
32 days of its entry.
33 (b) If the petition is not dismissed pursuant to this
-42- LRB093 04396 WGH 16428 a
1 Section, the court shall order the petition to be docketed
2 for further consideration in accordance with Sections 122-4
3 through 122-6. If the petitioner is under sentence of death,
4 the court shall order the petition to be docketed for further
5 consideration and hearing within one year of the filing of
6 the petition. Continuances may be granted as the court deems
7 appropriate.
8 (c) In considering a petition pursuant to this Section,
9 the court may examine the court file of the proceeding in
10 which the petitioner was convicted, any action taken by an
11 appellate court in such proceeding and any transcripts of
12 such proceeding.
13 (Source: P.A. 86-655; 87-904.)
14 (725 ILCS 5/122-2.2 new)
15 Sec. 122-2.2. Mental retardation and post-conviction
16 relief.
17 (a) In cases where no determination of mental
18 retardation was made and a defendant has been convicted of
19 first-degree murder, sentenced to death, and is in custody
20 pending execution of the sentence of death, the following
21 procedures shall apply:
22 (1) Notwithstanding any other provision of law or
23 rule of court, a defendant may seek relief from the death
24 sentence through a petition for post-conviction relief
25 under this Article alleging that the defendant was
26 mentally retarded as defined in Section 114-15 at the
27 time the offense was alleged to have been committed.
28 (2) The petition must be filed within 180 days of
29 the effective date of this amendatory Act of the 93rd
30 General Assembly or within 180 days of the issuance of
31 the mandate by the Illinois Supreme Court setting the
32 date of execution, whichever is later.
33 (3) All other provisions of this Article governing
-43- LRB093 04396 WGH 16428 a
1 petitions for post-conviction relief shall apply to a
2 petition for post-conviction relief alleging mental
3 retardation.
4 Section 20. The Capital Crimes Litigation Act is amended
5 by changing Sections 15 and 19 as follows:
6 (725 ILCS 124/15)
7 (Section scheduled to be repealed on July 1, 2004)
8 Sec. 15. Capital Litigation Trust Fund.
9 (a) The Capital Litigation Trust Fund is created as a
10 special fund in the State Treasury. The Trust Fund shall be
11 administered by the State Treasurer to provide moneys for the
12 appropriations to be made, grants to be awarded, and
13 compensation and expenses to be paid under this Act. All
14 interest earned from the investment or deposit of moneys
15 accumulated in the Trust Fund shall, under Section 4.1 of the
16 State Finance Act, be deposited into the Trust Fund.
17 (b) Moneys deposited into the Trust Fund shall not be
18 considered general revenue of the State of Illinois.
19 (c) Moneys deposited into the Trust Fund shall be used
20 exclusively for the purposes of providing funding for the
21 prosecution and defense of capital cases as provided in this
22 Act and shall not be appropriated, loaned, or in any manner
23 transferred to the General Revenue Fund of the State of
24 Illinois.
25 (d) Every fiscal year the State Treasurer shall transfer
26 from the General Revenue Fund to the Capital Litigation Trust
27 Fund an amount equal to the full amount of moneys
28 appropriated by the General Assembly (both by original and
29 supplemental appropriation), less any unexpended balance from
30 the previous fiscal year, from the Capital Litigation Trust
31 Fund for the specific purpose of making funding available for
32 the prosecution and defense of capital cases. The Public
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1 Defender and State's Attorney in Cook County, the State
2 Appellate Defender, the State's Attorneys Appellate
3 Prosecutor, and the Attorney General shall make annual
4 requests for appropriations from the Trust Fund.
5 (1) The Public Defender in Cook County shall
6 request appropriations to the State Treasurer for
7 expenses incurred by the Public Defender and for funding
8 for private appointed defense counsel in Cook County.
9 (2) The State's Attorney in Cook County shall
10 request an appropriation to the State Treasurer for
11 expenses incurred by the State's Attorney.
12 (3) The State Appellate Defender shall request a
13 direct appropriation from the Trust Fund for expenses
14 incurred by the State Appellate Defender in providing
15 assistance to trial attorneys under item (c)(5) of
16 Section 10 of the State Appellate Defender Act and an
17 appropriation to the State Treasurer for payments from
18 the Trust Fund for the defense of cases in counties other
19 than Cook County.
20 (4) The State's Attorneys Appellate Prosecutor
21 shall request a direct appropriation from the Trust Fund
22 to pay expenses incurred by the State's Attorneys
23 Appellate Prosecutor and an appropriation to the State
24 Treasurer for payments from the Trust Fund for expenses
25 incurred by State's Attorneys in counties other than Cook
26 County.
27 (5) The Attorney General shall request a direct
28 appropriation from the Trust Fund to pay expenses
29 incurred by the Attorney General in assisting the State's
30 Attorneys in counties other than Cook County.
31 The Public Defender and State's Attorney in Cook County,
32 the State Appellate Defender, the State's Attorneys Appellate
33 Prosecutor, and the Attorney General may each request
34 supplemental appropriations from the Trust Fund during the
-45- LRB093 04396 WGH 16428 a
1 fiscal year.
2 (e) Moneys in the Trust Fund shall be expended only as
3 follows:
4 (1) To pay the State Treasurer's costs to
5 administer the Trust Fund. The amount for this purpose
6 may not exceed 5% in any one fiscal year of the amount
7 otherwise appropriated from the Trust Fund in the same
8 fiscal year.
9 (2) To pay the capital litigation expenses of trial
10 defense including, but not limited to, DNA testing,
11 including DNA testing under Section 116-3 of the Code of
12 Criminal Procedure of 1963, analysis, and expert
13 testimony, investigatory and other assistance, expert,
14 forensic, and other witnesses, and mitigation
15 specialists, and grants and aid provided to public
16 defenders or assistance to attorneys who have been
17 appointed by the court to represent defendants who are
18 charged with capital crimes.
19 (3) To pay the compensation of trial attorneys,
20 other than public defenders, who have been appointed by
21 the court to represent defendants who are charged with
22 capital crimes.
23 (4) To provide State's Attorneys with funding for
24 capital litigation expenses including, but not limited
25 to, investigatory and other assistance and expert,
26 forensic, and other witnesses necessary to prosecute
27 capital cases. State's Attorneys in any county other
28 than Cook County seeking funding for capital litigation
29 expenses including, but not limited to, investigatory and
30 other assistance and expert, forensic, or other witnesses
31 under this Section may request that the State's Attorneys
32 Appellate Prosecutor or the Attorney General, as the case
33 may be, certify the expenses as reasonable, necessary,
34 and appropriate for payment from the Trust Fund, on a
-46- LRB093 04396 WGH 16428 a
1 form created by the State Treasurer. Upon certification
2 of the expenses and delivery of the certification to the
3 State Treasurer, the Treasurer shall pay the expenses
4 directly from the Capital Litigation Trust Fund if there
5 are sufficient moneys in the Trust Fund to pay the
6 expenses.
7 (5) To provide financial support through the
8 Attorney General pursuant to the Attorney General Act for
9 the several county State's Attorneys outside of Cook
10 County, but shall not be used to increase personnel for
11 the Attorney General's Office.
12 (6) To provide financial support through the
13 State's Attorneys Appellate Prosecutor pursuant to the
14 State's Attorneys Appellate Prosecutor's Act for the
15 several county State's Attorneys outside of Cook County,
16 but shall not be used to increase personnel for the
17 State's Attorneys Appellate Prosecutor.
18 (7) To provide financial support to the State
19 Appellate Defender pursuant to the State Appellate
20 Defender Act.
21 Moneys expended from the Trust Fund shall be in addition
22 to county funding for Public Defenders and State's Attorneys,
23 and shall not be used to supplant or reduce ordinary and
24 customary county funding.
25 (f) Moneys in the Trust Fund shall be appropriated to
26 the State Appellate Defender, the State's Attorneys Appellate
27 Prosecutor, the Attorney General, and the State Treasurer.
28 The State Appellate Defender shall receive an appropriation
29 from the Trust Fund to enable it to provide assistance to
30 appointed defense counsel throughout the State and to Public
31 Defenders in counties other than Cook. The State's Attorneys
32 Appellate Prosecutor and the Attorney General shall receive
33 appropriations from the Trust Fund to enable them to provide
34 assistance to State's Attorneys in counties other than Cook
-47- LRB093 04396 WGH 16428 a
1 County. Moneys shall be appropriated to the State Treasurer
2 to enable the Treasurer (i) to make grants to Cook County,
3 (ii) to pay the expenses of Public Defenders and State's
4 Attorneys in counties other than Cook County, (iii) to pay
5 the expenses and compensation of appointed defense counsel in
6 counties other than Cook County, and (iv) to pay the costs of
7 administering the Trust Fund. All expenditures and grants
8 made from the Trust Fund shall be subject to audit by the
9 Auditor General.
10 (g) For Cook County, grants from the Trust Fund shall be
11 made and administered as follows:
12 (1) For each State fiscal year, the State's
13 Attorney and Public Defender must each make a separate
14 application to the State Treasurer for capital litigation
15 grants.
16 (2) The State Treasurer shall establish rules and
17 procedures for grant applications. The rules shall
18 require the Cook County Treasurer as the grant recipient
19 to report on a periodic basis to the State Treasurer how
20 much of the grant has been expended, how much of the
21 grant is remaining, and the purposes for which the grant
22 has been used. The rules may also require the Cook
23 County Treasurer to certify on a periodic basis that
24 expenditures of the funds have been made for expenses
25 that are reasonable, necessary, and appropriate for
26 payment from the Trust Fund.
27 (3) The State Treasurer shall make the grants to
28 the Cook County Treasurer as soon as possible after the
29 beginning of the State fiscal year.
30 (4) The State's Attorney or Public Defender may
31 apply for supplemental grants during the fiscal year.
32 (5) Grant moneys shall be paid to the Cook County
33 Treasurer in block grants and held in separate accounts
34 for the State's Attorney, the Public Defender, and court
-48- LRB093 04396 WGH 16428 a
1 appointed defense counsel other than the Cook County
2 Public Defender, respectively, for the designated fiscal
3 year, and are not subject to county appropriation.
4 (6) Expenditure of grant moneys under this
5 subsection (g) is subject to audit by the Auditor
6 General.
7 (7) The Cook County Treasurer shall immediately
8 make payment from the appropriate separate account in the
9 county treasury for capital litigation expenses to the
10 State's Attorney, Public Defender, or court appointed
11 defense counsel other than the Public Defender, as the
12 case may be, upon order of the State's Attorney, Public
13 Defender or the court, respectively.
14 (h) If a defendant in a capital case in Cook County is
15 represented by court appointed counsel other than the Cook
16 County Public Defender, the appointed counsel shall petition
17 the court for an order directing the Cook County Treasurer to
18 pay the court appointed counsel's reasonable and necessary
19 compensation and capital litigation expenses from grant
20 moneys provided from the Trust Fund. These petitions shall be
21 considered in camera. Orders denying petitions for
22 compensation or expenses are final. Counsel may not petition
23 for expenses that may have been provided or compensated by
24 the State Appellate Defender under item (c)(5) of Section 10
25 of the State Appellate Defender Act.
26 (i) In counties other than Cook County, and excluding
27 capital litigation expenses or services that may have been
28 provided by the State Appellate Defender under item (c)(5) of
29 Section 10 of the State Appellate Defender Act:
30 (1) Upon certification by the circuit court, on a
31 form created by the State Treasurer, that all or a
32 portion of the expenses are reasonable, necessary, and
33 appropriate for payment from the Trust Fund and the
34 court's delivery of the certification to the Treasurer,
-49- LRB093 04396 WGH 16428 a
1 the Treasurer shall pay the certified expenses of Public
2 Defenders from the money appropriated to the Treasurer
3 for capital litigation expenses of Public Defenders in
4 any county other than Cook County, if there are
5 sufficient moneys in the Trust Fund to pay the expenses.
6 (2) If a defendant in a capital case is represented
7 by court appointed counsel other than the Public
8 Defender, the appointed counsel shall petition the court
9 to certify compensation and capital litigation expenses
10 including, but not limited to, investigatory and other
11 assistance, expert, forensic, and other witnesses, and
12 mitigation specialists as reasonable, necessary, and
13 appropriate for payment from the Trust Fund. Upon
14 certification on a form created by the State Treasurer of
15 all or a portion of the compensation and expenses
16 certified as reasonable, necessary, and appropriate for
17 payment from the Trust Fund and the court's delivery of
18 the certification to the Treasurer, the State Treasurer
19 shall pay the certified compensation and expenses from
20 the money appropriated to the Treasurer for that purpose,
21 if there are sufficient moneys in the Trust Fund to make
22 those payments.
23 (3) A petition for capital litigation expenses
24 under this subsection shall be considered in camera.
25 Orders denying petitions for compensation or expenses are
26 final.
27 (j) If the Trust Fund is discontinued or dissolved by an
28 Act of the General Assembly or by operation of law, any
29 balance remaining in the Trust Fund shall be returned to the
30 General Revenue Fund after deduction of administrative costs,
31 any other provision of this Act to the contrary
32 notwithstanding.
33 (Source: P.A. 91-589, eff. 1-1-00.)
-50- LRB093 04396 WGH 16428 a
1 (725 ILCS 124/19)
2 (Section scheduled to be repealed on July 1, 2004)
3 Sec. 19. Report; repeal.
4 (a) The Cook County Public Defender, the Cook County
5 State's Attorney, the State Appellate Defender, the State's
6 Attorneys Appellate Prosecutor, and the Attorney General
7 shall each report separately to the General Assembly by
8 January 1, 2004 detailing the amounts of money received by
9 them through this Act, the uses for which those funds were
10 expended, the balances then in the Capital Litigation Trust
11 Fund or county accounts, as the case may be, dedicated to
12 them for the use and support of Public Defenders, appointed
13 trial defense counsel, and State's Attorneys, as the case may
14 be. The report shall describe and discuss the need for
15 continued funding through the Fund and contain any
16 suggestions for changes to this Act.
17 (b) (Blank).Unless the General Assembly provides
18 otherwise, this Act is repealed on July 1, 2004.
19 (Source: P.A. 91-589, eff. 1-1-00.)
20 Section 25. The Unified Code of Corrections is amended
21 by changing Section 5-4-3 as follows:
22 (730 ILCS 5/5-4-3) (from Ch. 38, par. 1005-4-3)
23 Sec. 5-4-3. Persons convicted of, or found delinquent
24 for, certain offenses or institutionalized as sexually
25 dangerous; specimens; genetic marker groups.
26 (a) Any person convicted of, found guilty under the
27 Juvenile Court Act of 1987 for, or who received a disposition
28 of court supervision for, a qualifying offense or attempt of
29 a qualifying offense, convicted or found guilty of any
30 offense classified as a felony under Illinois law, found
31 guilty or given supervision for any offense classified as a
32 felony under the Juvenile Court Act of 1987, or
-51- LRB093 04396 WGH 16428 a
1 institutionalized as a sexually dangerous person under the
2 Sexually Dangerous Persons Act, or committed as a sexually
3 violent person under the Sexually Violent Persons Commitment
4 Act shall, regardless of the sentence or disposition imposed,
5 be required to submit specimens of blood, saliva, or tissue
6 to the Illinois Department of State Police in accordance with
7 the provisions of this Section, provided such person is:
8 (1) convicted of a qualifying offense or attempt of
9 a qualifying offense on or after July 1, 1990the
10 effective date of this amendatory Act of 1989, and
11 sentenced to a term of imprisonment, periodic
12 imprisonment, fine, probation, conditional discharge or
13 any other form of sentence, or given a disposition of
14 court supervision for the offense;, or
15 (1.5) found guilty or given supervision under the
16 Juvenile Court Act of 1987 for a qualifying offense or
17 attempt of a qualifying offense on or after January 1,
18 1997;the effective date of this amendatory Act of 1996,
19 or
20 (2) ordered institutionalized as a sexually
21 dangerous person on or after July 1, 1990;the effective
22 date of this amendatory Act of 1989, or
23 (3) convicted of a qualifying offense or attempt of
24 a qualifying offense before July 1, 1990the effective
25 date of this amendatory Act of 1989 and is presently
26 confined as a result of such conviction in any State
27 correctional facility or county jail or is presently
28 serving a sentence of probation, conditional discharge or
29 periodic imprisonment as a result of such conviction;, or
30 (3.5) convicted or found guilty of any offense
31 classified as a felony under Illinois law or found guilty
32 or given supervision for such an offense under the
33 Juvenile Court Act of 1987 on or after August 22, 2002;
34 the effective date of this amendatory Act of the 92nd
-52- LRB093 04396 WGH 16428 a
1 General Assembly, or
2 (4) presently institutionalized as a sexually
3 dangerous person or presently institutionalized as a
4 person found guilty but mentally ill of a sexual offense
5 or attempt to commit a sexual offense; or
6 (4.5) ordered committed as a sexually violent
7 person on or after the effective date of the Sexually
8 Violent Persons Commitment Act; or
9 (5) seeking transfer to or residency in Illinois
10 under Sections 3-3-11.05 through 3-3-11.5 of the Unified
11 Code of Corrections and the Interstate Compact for Adult
12 Offender Supervision or the Interstate Agreements on
13 Sexually Dangerous Persons Act.
14 Notwithstanding other provisions of this Section, any
15 person incarcerated in a facility of the Illinois Department
16 of Corrections on or after August 22, 2002the effective date
17 of this amendatory Act of the 92nd General Assembly shall be
18 required to submit a specimen of blood, saliva, or tissue
19 prior to his or her release on parole or mandatory supervised
20 release, as a condition of his or her parole or mandatory
21 supervised release.
22 (a-5) Any person who was otherwise convicted of or
23 received a disposition of court supervision for any other
24 offense under the Criminal Code of 1961 or who was found
25 guilty or given supervision for such a violation under the
26 Juvenile Court Act of 1987, may, regardless of the sentence
27 imposed, be required by an order of the court to submit
28 specimens of blood, saliva, or tissue to the Illinois
29 Department of State Police in accordance with the provisions
30 of this Section.
31 (b) Any person required by paragraphs (a)(1), (a)(1.5),
32 (a)(2), (a)(3.5), and (a-5) to provide specimens of blood,
33 saliva, or tissue shall provide specimens of blood, saliva,
34 or tissue within 45 days after sentencing or disposition at a
-53- LRB093 04396 WGH 16428 a
1 collection site designated by the Illinois Department of
2 State Police.
3 (c) Any person required by paragraphs (a)(3), (a)(4),
4 and (a)(4.5) to provide specimens of blood, saliva, or tissue
5 shall be required to provide such samples prior to final
6 discharge, parole, or release at a collection site designated
7 by the Illinois Department of State Police.
8 (c-5) Any person required by paragraph (a)(5) to provide
9 specimens of blood, saliva, or tissue shall, where feasible,
10 be required to provide the specimens before being accepted
11 for conditioned residency in Illinois under the interstate
12 compact or agreement, but no later than 45 days after arrival
13 in this State.
14 (c-6) The Illinois Department of State Police may
15 determine which type of specimen or specimens, blood, saliva,
16 or tissue, is acceptable for submission to the Division of
17 Forensic Services for analysis.
18 (d) The Illinois Department of State Police shall
19 provide all equipment and instructions necessary for the
20 collection of blood samples. The collection of samples shall
21 be performed in a medically approved manner. Only a
22 physician authorized to practice medicine, a registered nurse
23 or other qualified person trained in venipuncture may
24 withdraw blood for the purposes of this Act. The samples
25 shall thereafter be forwarded to the Illinois Department of
26 State Police, Division of Forensic Services, for analysis and
27 categorizing into genetic marker groupings.
28 (d-1) The Illinois Department of State Police shall
29 provide all equipment and instructions necessary for the
30 collection of saliva samples. The collection of saliva
31 samples shall be performed in a medically approved manner.
32 Only a person trained in the instructions promulgated by the
33 Illinois State Police on collecting saliva may collect saliva
34 for the purposes of this Section. The samples shall
-54- LRB093 04396 WGH 16428 a
1 thereafter be forwarded to the Illinois Department of State
2 Police, Division of Forensic Services, for analysis and
3 categorizing into genetic marker groupings.
4 (d-2) The Illinois Department of State Police shall
5 provide all equipment and instructions necessary for the
6 collection of tissue samples. The collection of tissue
7 samples shall be performed in a medically approved manner.
8 Only a person trained in the instructions promulgated by the
9 Illinois State Police on collecting tissue may collect tissue
10 for the purposes of this Section. The samples shall
11 thereafter be forwarded to the Illinois Department of State
12 Police, Division of Forensic Services, for analysis and
13 categorizing into genetic marker groupings.
14 (d-5) To the extent that funds are available, the
15 Illinois Department of State Police shall contract with
16 qualified personnel and certified laboratories for the
17 collection, analysis, and categorization of known samples.
18 (e) The genetic marker groupings shall be maintained by
19 the Illinois Department of State Police, Division of Forensic
20 Services.
21 (f) The genetic marker grouping analysis information
22 obtained pursuant to this Act shall be confidential and shall
23 be released only to peace officers of the United States, of
24 other states or territories, of the insular possessions of
25 the United States, of foreign countries duly authorized to
26 receive the same, to all peace officers of the State of
27 Illinois and to all prosecutorial agencies, and to defense
28 counsel as provided by Section 116-5 of the Code of Criminal
29 Procedure of 1963. The genetic marker grouping analysis
30 information obtained pursuant to this Act shall be used only
31 for (i) valid law enforcement identification purposes and as
32 required by the Federal Bureau of Investigation for
33 participation in the National DNA database or (ii) technology
34 validation purposes or (iii) assisting in the defense of the
-55- LRB093 04396 WGH 16428 a
1 criminally accused pursuant to Section 116-5 of the Code of
2 Criminal Procedure of 1963. Notwithstanding any other
3 statutory provision to the contrary, all information obtained
4 under this Section shall be maintained in a single State data
5 base, which may be uploaded into a national database, and
6 which information may be subject to expungement only as set
7 forth in subsection (f-1).
8 (f-1) Upon receipt of notification of a reversal of a
9 conviction based on actual innocence, or of the granting of a
10 pardon pursuant to Section 12 of Article V of the Illinois
11 Constitution, if that pardon document specifically states
12 that the reason for the pardon is the actual innocence of an
13 individual whose DNA record has been stored in the State or
14 national DNA identification index in accordance with this
15 Section by the Illinois Department of State Police, the DNA
16 record shall be expunged from the DNA identification index,
17 and the Department shall by rule prescribe procedures to
18 ensure that the record and any samples, analyses, or other
19 documents relating to such record, whether in the possession
20 of the Department or any law enforcement or police agency, or
21 any forensic DNA laboratory, including any duplicates or
22 copies thereof, are destroyed and a letter is sent to the
23 court verifying the expungement is completed.
24 (f-5) Any person who intentionally uses genetic marker
25 grouping analysis information, or any other information
26 derived from a DNA sample, beyond the authorized uses as
27 provided under this Section, or any other Illinois law, is
28 guilty of a Class 4 felony, and shall be subject to a fine of
29 not less than $5,000.
30 (g) For the purposes of this Section, "qualifying
31 offense" means any of the following:
32 (1) any violation or inchoate violation of Section
33 11-6, 11-9.1, 11-11, 11-18.1, 12-15, or 12-16 of the
34 Criminal Code of 1961;, or
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1 (1.1) any violation or inchoate violation of
2 Section 9-1, 9-2, 10-1, 10-2, 12-11, 12-11.1, 18-1, 18-2,
3 18-3, 18-4, 19-1, or 19-2 of the Criminal Code of 1961
4 for which persons are convicted on or after July 1,
5 2001;, or
6 (2) any former statute of this State which defined
7 a felony sexual offense;, or
8 (3) (blank);, or
9 (4) any inchoate violation of Section 9-3.1,
10 11-9.3, 12-7.3, or 12-7.4 of the Criminal Code of 1961;,
11 or
12 (5) any violation or inchoate violation of Article
13 29D of the Criminal Code of 1961.
14 (g-5) (Blank).
15 (h) The Illinois Department of State Police shall be the
16 State central repository for all genetic marker grouping
17 analysis information obtained pursuant to this Act. The
18 Illinois Department of State Police may promulgate rules for
19 the form and manner of the collection of blood, saliva, or
20 tissue samples and other procedures for the operation of this
21 Act. The provisions of the Administrative Review Law shall
22 apply to all actions taken under the rules so promulgated.
23 (i) A person required to provide a blood, saliva, or
24 tissue specimen shall cooperate with the collection of the
25 specimen and any deliberate act by that person intended to
26 impede, delay or stop the collection of the blood, saliva, or
27 tissue specimen is a Class A misdemeanor.
28 (j) Any person required by subsection (a) to submit
29 specimens of blood, saliva, or tissue to the Illinois
30 Department of State Police for analysis and categorization
31 into genetic marker grouping, in addition to any other
32 disposition, penalty, or fine imposed, shall pay an analysis
33 fee of $200. If the analysis fee is not paid at the time of
34 sentencing, the court shall establish a fee schedule by which
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1 the entire amount of the analysis fee shall be paid in full,
2 such schedule not to exceed 24 months from the time of
3 conviction. The inability to pay this analysis fee shall not
4 be the sole ground to incarcerate the person.
5 (k) All analysis and categorization fees provided for by
6 subsection (j) shall be regulated as follows:
7 (1) The State Offender DNA Identification System
8 Fund is hereby created as a special fund in the State
9 Treasury.
10 (2) All fees shall be collected by the clerk of the
11 court and forwarded to the State Offender DNA
12 Identification System Fund for deposit. The clerk of the
13 circuit court may retain the amount of $10 from each
14 collected analysis fee to offset administrative costs
15 incurred in carrying out the clerk's responsibilities
16 under this Section.
17 (3) Fees deposited into the State Offender DNA
18 Identification System Fund shall be used by Illinois
19 State Police crime laboratories as designated by the
20 Director of State Police. These funds shall be in
21 addition to any allocations made pursuant to existing
22 laws and shall be designated for the exclusive use of
23 State crime laboratories. These uses may include, but
24 are not limited to, the following:
25 (A) Costs incurred in providing analysis and
26 genetic marker categorization as required by
27 subsection (d).
28 (B) Costs incurred in maintaining genetic
29 marker groupings as required by subsection (e).
30 (C) Costs incurred in the purchase and
31 maintenance of equipment for use in performing
32 analyses.
33 (D) Costs incurred in continuing research and
34 development of new techniques for analysis and
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1 genetic marker categorization.
2 (E) Costs incurred in continuing education,
3 training, and professional development of forensic
4 scientists regularly employed by these laboratories.
5 (l) The failure of a person to provide a specimen, or of
6 any person or agency to collect a specimen, within the 45 day
7 period shall in no way alter the obligation of the person to
8 submit such specimen, or the authority of the Illinois
9 Department of State Police or persons designated by the
10 Department to collect the specimen, or the authority of the
11 Illinois Department of State Police to accept, analyze and
12 maintain the specimen or to maintain or upload results of
13 genetic marker grouping analysis information into a State or
14 national database.
15 (Source: P.A. 91-528, eff. 1-1-00; 92-16, eff. 6-28-01;
16 92-40, eff. 6-29-01; 92-571, eff. 6-26-02; 92-600, eff.
17 6-28-02; 92-829, eff. 8-22-02; 92-854, eff. 12-5-02; revised
18 1-20-03.)
19 Section 90. The State Finance Act is amended by adding
20 Section 5.595 as follows:
21 (30 ILCS 105/5.595 new)
22 Sec. 5.595. The Illinois Law Enforcement Training
23 Standards Board Costs and Attorney Fees Fund.
24 Section 95. Severability. The provisions of this Act
25 are severable under Section 1.31 of the Statute on Statutes.
26 Section 99. Effective date. This Act takes effect upon
27 becoming law.".
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