SB1276 103RD GENERAL ASSEMBLY

LRB103 26040 LNS 52395 b

103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB1276

Introduced 2/3/2023, by Sen. Robert Peters

SYNOPSIS AS INTRODUCED:

775 ILCS 40/5
775 ILCS 40/25
775 ILCS 40/40
775 ILCS 40/45
775 ILCS 40/50
775 ILCS 40/75 new
775 ILCS 40/70 rep.

Amends the Illinois Torture Inquiry and Relief Commission Act. In the definition of "claim of torture": provides that it also means a third party was tortured into implicating a person for the crime for which the person was convicted; provides that it also means a witness statement was used to obtain the conviction; and removes language providing that the allegations of torture occur within a county of more than 3,000,000 inhabitants. Defines "torture" as: any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; any pain or suffering that is intentionally inflicted on a person for such purposes as obtaining from that person a confession or information about a third party; any pain or suffering that is intentionally inflicted on a person for purposes of punishing a suspected act by that person; or any intimidation or coercion for any reason based on discrimination of any kind. Requires the Torture Inquiry and Relief Commission to determine the resources necessary to assess the credibility or lack thereof of each claim within 2 years after the date upon the claim was received, and to make a report of its findings to the Governor and the General Assembly. Repeals a provision providing that the Act applies to claims of torture filed not later than 10 years after the effective date of the Act (August 10, 2009). Makes conforming changes.

A BILL FOR

AN ACT concerning human rights.

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

Section 5. The Illinois Torture Inquiry and Relief Commission Act is amended by changing Sections 5, 25, 40, 45, and 50 and by adding Section 75 as follows:

(775 ILCS 40/5)

Sec. 5. Definitions. As used in this Act:

(1) "Claim of torture" means a claim on behalf of a living person convicted of a felony in Illinois asserting that he or she was tortured into confessing to the crime or a third party was tortured into implicating him or her for the crime for which the person was convicted and the tortured confession or witness statement was used to obtain the conviction and for which there is some credible evidence related to allegations of torture occurring within a county of more than 3,000,000 inhabitants.

(2) "Commission" means the Illinois Torture Inquiry and Relief Commission established by this Act.

(3) "Convicted person" means the person making a claim of torture under this Act.

(4) "Director" means the Director of the Illinois Torture Inquiry and Relief Commission.

(4.5) "Torture" means:

(i) Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.

(ii) Any pain or suffering that is intentionally inflicted on a person for such purposes as obtaining from that person a confession or information about a third party.

(iii) Any pain or suffering that is intentionally inflicted on a person for purposes of punishing a suspected act by that person.

(iv) Any intimidation or coercion for any reason based on discrimination of any kind.

(5) "Victim" means the victim of the crime, or if the victim of the crime is deceased, the next of kin of the victim, which shall be the parent, spouse, child, or sibling of the deceased victim.

(Source: P.A. 99-688, eff. 7-29-16.)

(775 ILCS 40/25)

Sec. 25. Terms of members; compensation; expenses.

(a) Of the initial members, the appointments under clauses (a)(3) and (6) of Section 20 shall be for one-year terms, the appointments under clauses (a)(1), (2), and (4) of Section 20 shall be for 2-year terms, and the appointments under clause (a)(5) of Section 20 shall be for 3-year terms. Thereafter, all terms shall be for 3 years. Members of the Commission shall serve no more than 2 consecutive 3-year terms plus any initial term of less than 3 years. Unless provided otherwise by this Act, all terms of members shall begin on January 1 and end on December 31.

Members serving by virtue of elective or appointive office, may serve only so long as the office holders hold those respective offices. The Chief Judge of the original jurisdiction Cook County Circuit Court may remove members for good cause shown. Vacancies occurring before the expiration of a term shall be filled in the manner provided for the members first appointed.

(b) The Commission members shall receive no salary for serving, but may be reimbursed for reasonable expenses incurred as a result of their duties as members of the Commission from funds appropriated by the General Assembly for that purpose, or from funds obtained from sources other than the General Assembly.

(Source: P.A. 96-223, eff. 8-10-09.)

(775 ILCS 40/40)

Sec. 40. Claims of torture; waiver of convicted person's procedural safeguards and privileges; formal inquiry; notification of the crime victim.

(a) A claim of torture may be referred to the Commission by any court, person, or agency. The Commission shall not consider a claim of torture if the convicted person is deceased. The determination of whether to grant a formal inquiry regarding any other claim of torture is in the discretion of the Commission. The Commission may informally screen and dismiss a case summarily at its discretion.

(b) No formal inquiry into a claim of torture shall be made by the Commission unless the Director or the Director's designee first obtains a signed agreement from the convicted person in which the convicted person waives his or her procedural safeguards and privileges including but not limited to the right against self-incrimination under the United States Constitution and the Constitution of the State of Illinois, agrees to cooperate with the Commission, and agrees to provide full disclosure regarding inquiry requirements of the Commission. The waiver under this subsection does not apply to matters unrelated to a convicted person's claim of torture. The convicted person shall have the right to advice of counsel prior to the execution of the agreement and, if a formal inquiry is granted, throughout the formal inquiry. If counsel represents the convicted person, then the convicted person's counsel must be present at the signing of the agreement. If counsel does not represent the convicted person, the Commission Chair shall determine the convicted person's indigency status and, if appropriate, enter an order for the appointment of counsel for the purpose of advising on the agreement.

(c) If a formal inquiry regarding a claim of torture is granted, the Director shall use all due diligence to notify the victim in the case and explain the inquiry process. The Commission shall give the victim notice that the victim has the right to present his or her views and concerns throughout the Commission's investigation.

(d) The Commission may use any measure provided in the Code of Civil Procedure and the Code of Criminal Procedure of 1963 to obtain information necessary to its inquiry. The Commission may also do any of the following: issue subpoenas or other process to compel the attendance of witnesses and the production of evidence, administer oaths, petition the Circuit Court of Cook County or of the original jurisdiction for enforcement of process or for other relief, and prescribe its own rules of procedure. All challenges with regard to the Commission's authority or the Commission's access to evidence shall be heard by the Circuit Court of the original jurisdiction of Cook County, including any in camera review.

(e) While performing duties for the Commission, the Director or the Director's designee may serve subpoenas or other process issued by the Commission throughout the State in the same manner and with the same effect as an officer authorized to serve process under the laws of this State.

(f) All State discovery and disclosure statutes in effect at the time of formal inquiry shall be enforceable as if the convicted person were currently being tried for the charge for which the convicted person is claiming torture.

(g) If, at any point during an inquiry, the convicted person refuses to comply with requests of the Commission or is otherwise deemed to be uncooperative by the Commission, the Commission shall discontinue the inquiry.

(Source: P.A. 96-223, eff. 8-10-09.)

(775 ILCS 40/45)

Sec. 45. Commission proceedings.

(a) At the completion of a formal inquiry, all relevant evidence shall be presented to the full Commission. As part of its proceedings, the Commission may conduct hearings. The determination as to whether to conduct hearings is solely in the discretion of the Commission. Any hearing held in accordance with this Section shall be a public hearing and shall be held subject to the Commission's rules of operation, and conducted pursuant to the Open Meetings Act.

(b) The Director shall use all due diligence to notify the victim at least 30 days prior to any proceedings of the full Commission held in regard to the victim's case. The Commission shall notify the victim that the victim is permitted to attend proceedings otherwise closed to the public, subject to any limitations imposed by this Act, and subject to Section 2(c)(14) of the Open Meetings Act. If the victim plans to attend proceedings otherwise closed to the public, the victim shall notify the Commission at least 10 days in advance of the proceedings of his or her intent to attend. The Commission may close any portion of the proceedings to the victim, if the victim is to testify and the Commission determines that the victim's testimony would be materially affected if the victim hears other testimony at the proceeding.

(c) After hearing the evidence, the full Commission shall vote to establish further case disposition as provided by this subsection. All 8 voting members of the Commission shall participate in that vote.

If 5 or more of the 8 voting members of the Commission conclude by a preponderance of the evidence that there is sufficient evidence of torture to merit judicial review, the case shall be referred to the Chief Judge of the original jurisdiction Circuit Court of Cook County by filing with the clerk of court the opinion of the Commission with supporting findings of fact, as well as the record in support of such opinion, with service on the State's Attorney in non-capital cases and service on both the State's Attorney and Attorney General in capital cases.

If less than 5 of the 8 voting members of the Commission conclude by a preponderance of the evidence that there is sufficient evidence of torture to merit judicial review, the Commission shall conclude there is insufficient evidence of torture to merit judicial review. The Commission shall document that opinion, along with supporting findings of fact, and file those documents and supporting materials with the court clerk in the circuit of original jurisdiction, with a copy to the State's Attorney and the chief judge.

The Director of the Commission shall use all due diligence to notify immediately the victim of the Commission's conclusion in a case.

(d) Evidence of criminal acts, professional misconduct, or other wrongdoing disclosed through formal inquiry or Commission proceedings shall be referred to the appropriate authority. Evidence favorable to the convicted person disclosed through formal inquiry or Commission proceedings shall be disclosed to the convicted person and the convicted person's counsel, if the convicted person has counsel. The Commission shall have the discretion to refer its findings together with the supporting record and evidence, to such other parties or entities as the Commission in its discretion shall deem appropriate.

(e) All proceedings of the Commission shall be recorded and transcribed as part of the record. All Commission member votes shall be recorded in the record. All records of the Commission shall be confidential until the proceedings before the Commission are concluded and a final decision has been made by the Commission.

(Source: P.A. 96-223, eff. 8-10-09.)

(775 ILCS 40/50)

Sec. 50. Post-commission judicial review.

(a) If the Commission concludes there is sufficient evidence of torture to merit judicial review, the Chair of the Commission shall request the Chief Judge of the original jurisdiction Circuit Court of Cook County for assignment to a trial judge for consideration. The court may receive proof by affidavits, depositions, oral testimony, or other evidence. In its discretion the court may order the petitioner brought before the court for the hearing. Notwithstanding the status of any other postconviction proceedings relating to the petitioner, if the court finds in favor of the petitioner, it shall enter an appropriate order with respect to the judgment or sentence in the former proceedings and such supplementary orders as to rearraignment, retrial, custody, pretrial release or discharge, or for such relief as may be granted under a petition for a certificate of innocence, as may be necessary and proper.

(b) The State's Attorney, or the State's Attorney's designee, shall represent the State at the hearing before the assigned judge.

(Source: P.A. 101-652, eff. 1-1-23.)

(775 ILCS 40/75 new)

Sec. 75. Processing of claims.

(a) No later than one year after the effective date of this amendatory Act of the 103rd General Assembly, the Commission shall determine the resources necessary to assess the credibility or lack thereof of each claim within 2 years after the date upon the claim was received, and shall make a report of its findings to the Governor and the General Assembly.

(b) This Section is repealed 2 years after the effective date of this amendatory Act of the 103rd General Assembly.

(775 ILCS 40/70 rep.)

Section 10. The Illinois Torture Inquiry and Relief Commission Act is amended by repealing Section 70.