HB2404ham001 98TH GENERAL ASSEMBLY

Rep. Barbara Flynn Currie

Filed: 3/12/2013

09800HB2404ham001 LRB098 07733 RLC 42707 a

AMENDMENT TO HOUSE BILL 2404

AMENDMENT NO. ______. Amend House Bill 2404 on page 1, by replacing lines 4 through 6 with the following:

"Section 5. The Juvenile Court Act of 1987 is amended by changing Sections 1-7, 1-8, 5-105, 5-120, 5-401.5, 5-410, 5-901, 5-905, and 5-915 as follows:"; and

on page 26, by inserting immediately below line 19 the following:

"(705 ILCS 405/5-401.5)

Sec. 5-401.5. When statements by minor may be used.

(a) In this Section, "custodial interrogation" means any interrogation (i) during which a reasonable person in the subject's position would consider himself or herself to be in custody and (ii) during which a question is asked that is reasonably likely to elicit an incriminating response.

In this Section, "electronic recording" includes motion picture, audiotape, videotape, or digital recording.

In this Section, "place of detention" means a building or a police station that is a place of operation for a municipal police department or county sheriff department or other law enforcement agency at which persons are or may be held in detention in connection with criminal charges against those persons or allegations that those persons are delinquent minors.

(b) An oral, written, or sign language statement of a minor who, at the time of the commission of the offense was under the age of 18 17 years, made as a result of a custodial interrogation conducted at a police station or other place of detention on or after the effective date of this amendatory Act of the 93rd General Assembly shall be presumed to be inadmissible as evidence against the minor in any criminal proceeding or juvenile court proceeding, for an act that if committed by an adult would be brought under Section 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, or 9-3.3, of the Criminal Code of 1961 or the Criminal Code of 2012, or under clause (d)(1)(F) of Section 11-501 of the Illinois Vehicle Code unless:

(1) an electronic recording is made of the custodial interrogation; and

(2) the recording is substantially accurate and not intentionally altered.

(c) Every electronic recording required under this Section must be preserved until such time as the minor's adjudication for any offense relating to the statement is final and all direct and habeas corpus appeals are exhausted, or the prosecution of such offenses is barred by law.

(d) If the court finds, by a preponderance of the evidence, that the minor was subjected to a custodial interrogation in violation of this Section, then any statements made by the minor during or following that non-recorded custodial interrogation, even if otherwise in compliance with this Section, are presumed to be inadmissible in any criminal proceeding or juvenile court proceeding against the minor except for the purposes of impeachment.

(e) Nothing in this Section precludes the admission (i) of a statement made by the minor in open court in any criminal proceeding or juvenile court proceeding, before a grand jury, or at a preliminary hearing, (ii) of a statement made during a custodial interrogation that was not recorded as required by this Section because electronic recording was not feasible, (iii) of a voluntary statement, whether or not the result of a custodial interrogation, that has a bearing on the credibility of the accused as a witness, (iv) of a spontaneous statement that is not made in response to a question, (v) of a statement made after questioning that is routinely asked during the processing of the arrest of the suspect, (vi) of a statement made during a custodial interrogation by a suspect who requests, prior to making the statement, to respond to the interrogator's questions only if an electronic recording is not made of the statement, provided that an electronic recording is made of the statement of agreeing to respond to the interrogator's question, only if a recording is not made of the statement, (vii) of a statement made during a custodial interrogation that is conducted out-of-state, (viii) of a statement given at a time when the interrogators are unaware that a death has in fact occurred, or (ix) of any other statement that may be admissible under law. The State shall bear the burden of proving, by a preponderance of the evidence, that one of the exceptions described in this subsection (e) is applicable. Nothing in this Section precludes the admission of a statement, otherwise inadmissible under this Section, that is used only for impeachment and not as substantive evidence.

(f) The presumption of inadmissibility of a statement made by a suspect at a custodial interrogation at a police station or other place of detention may be overcome by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances.

(g) Any electronic recording of any statement made by a minor during a custodial interrogation that is compiled by any law enforcement agency as required by this Section for the purposes of fulfilling the requirements of this Section shall be confidential and exempt from public inspection and copying, as provided under Section 7 of the Freedom of Information Act, and the information shall not be transmitted to anyone except as needed to comply with this Section.

(h) A statement, admission, confession, or incriminating information made by or obtained from a minor related to the instant offense, as part of any behavioral health screening, assessment, evaluation, or treatment, whether or not court-ordered, shall not be admissible as evidence against the minor on the issue of guilt only in the instant juvenile court proceeding. The provisions of this subsection (h) are in addition to and do not override any existing statutory and constitutional prohibition on the admission into evidence in delinquency proceedings of information obtained during screening, assessment, or treatment.

The changes made to this Section by this amendatory Act of the 98th General Assembly apply to statements of a minor made on or after the effective date of this amendatory Act.

(Source: P.A. 96-1251, eff. 1-1-11; 97-1150, eff. 1-25-13.)

(705 ILCS 405/5-410)

Sec. 5-410. Non-secure custody or detention.

(1) Any minor arrested or taken into custody pursuant to this Act who requires care away from his or her home but who does not require physical restriction shall be given temporary care in a foster family home or other shelter facility designated by the court.

(2) (a) Any minor 10 years of age or older arrested pursuant to this Act where there is probable cause to believe that the minor is a delinquent minor and that (i) secured custody is a matter of immediate and urgent necessity for the protection of the minor or of the person or property of another, (ii) the minor is likely to flee the jurisdiction of the court, or (iii) the minor was taken into custody under a warrant, may be kept or detained in an authorized detention facility. No minor under 12 years of age shall be detained in a county jail or a municipal lockup for more than 6 hours.

(b) The written authorization of the probation officer or detention officer (or other public officer designated by the court in a county having 3,000,000 or more inhabitants) constitutes authority for the superintendent of any juvenile detention home to detain and keep a minor for up to 40 hours, excluding Saturdays, Sundays and court-designated holidays. These records shall be available to the same persons and pursuant to the same conditions as are law enforcement records as provided in Section 5-905.

(b-4) The consultation required by subsection (b-5) shall not be applicable if the probation officer or detention officer (or other public officer designated by the court in a county having 3,000,000 or more inhabitants) utilizes a scorable detention screening instrument, which has been developed with input by the State's Attorney, to determine whether a minor should be detained, however, subsection (b-5) shall still be applicable where no such screening instrument is used or where the probation officer, detention officer (or other public officer designated by the court in a county having 3,000,000 or more inhabitants) deviates from the screening instrument.

(b-5) Subject to the provisions of subsection (b-4), if a probation officer or detention officer (or other public officer designated by the court in a county having 3,000,000 or more inhabitants) does not intend to detain a minor for an offense which constitutes one of the following offenses he or she shall consult with the State's Attorney's Office prior to the release of the minor: first degree murder, second degree murder, involuntary manslaughter, criminal sexual assault, aggravated criminal sexual assault, aggravated battery with a firearm as described in Section 12-4.2 or subdivision (e)(1), (e)(2), (e)(3), or (e)(4) of Section 12-3.05, aggravated or heinous battery involving permanent disability or disfigurement or great bodily harm, robbery, aggravated robbery, armed robbery, vehicular hijacking, aggravated vehicular hijacking, vehicular invasion, arson, aggravated arson, kidnapping, aggravated kidnapping, home invasion, burglary, or residential burglary.

(c) Except as otherwise provided in paragraph (a), (d), or (e), no minor shall be detained in a county jail or municipal lockup for more than 12 hours, unless the offense is a crime of violence in which case the minor may be detained up to 24 hours. For the purpose of this paragraph, "crime of violence" has the meaning ascribed to it in Section 1-10 of the Alcoholism and Other Drug Abuse and Dependency Act.

(i) The period of detention is deemed to have begun once the minor has been placed in a locked room or cell or handcuffed to a stationary object in a building housing a county jail or municipal lockup. Time spent transporting a minor is not considered to be time in detention or secure custody.

(ii) Any minor so confined shall be under periodic supervision and shall not be permitted to come into or remain in contact with adults in custody in the building.

(iii) Upon placement in secure custody in a jail or lockup, the minor shall be informed of the purpose of the detention, the time it is expected to last and the fact that it cannot exceed the time specified under this Act.

(iv) A log shall be kept which shows the offense which is the basis for the detention, the reasons and circumstances for the decision to detain and the length of time the minor was in detention.

(v) Violation of the time limit on detention in a county jail or municipal lockup shall not, in and of itself, render inadmissible evidence obtained as a result of the violation of this time limit. Minors under 18 17 years of age shall be kept separate from confined adults and may not at any time be kept in the same cell, room or yard with adults confined pursuant to criminal law. Persons 18 17 years of age and older who have a petition of delinquency filed against them may be confined in an adult detention facility. In making a determination whether to confine a person 18 17 years of age or older who has a petition of delinquency filed against the person, these factors, among other matters, shall be considered:

(A) The age of the person;

(B) Any previous delinquent or criminal history of the person;

(C) Any previous abuse or neglect history of the person; and

(D) Any mental health or educational history of the person, or both.

(d) (i) If a minor 12 years of age or older is confined in a county jail in a county with a population below 3,000,000 inhabitants, then the minor's confinement shall be implemented in such a manner that there will be no contact by sight, sound or otherwise between the minor and adult prisoners. Minors 12 years of age or older must be kept separate from confined adults and may not at any time be kept in the same cell, room, or yard with confined adults. This paragraph (d)(i) shall only apply to confinement pending an adjudicatory hearing and shall not exceed 40 hours, excluding Saturdays, Sundays and court designated holidays. To accept or hold minors during this time period, county jails shall comply with all monitoring standards promulgated by the Department of Corrections and training standards approved by the Illinois Law Enforcement Training Standards Board.

(ii) To accept or hold minors, 12 years of age or older, after the time period prescribed in paragraph (d)(i) of this subsection (2) of this Section but not exceeding 7 days including Saturdays, Sundays and holidays pending an adjudicatory hearing, county jails shall comply with all temporary detention standards promulgated by the Department of Corrections and training standards approved by the Illinois Law Enforcement Training Standards Board.

(iii) To accept or hold minors 12 years of age or older, after the time period prescribed in paragraphs (d)(i) and (d)(ii) of this subsection (2) of this Section, county jails shall comply with all programmatic and training standards for juvenile detention homes promulgated by the Department of Corrections.

(e) When a minor who is at least 15 years of age is prosecuted under the criminal laws of this State, the court may enter an order directing that the juvenile be confined in the county jail. However, any juvenile confined in the county jail under this provision shall be separated from adults who are confined in the county jail in such a manner that there will be no contact by sight, sound or otherwise between the juvenile and adult prisoners.

(f) For purposes of appearing in a physical lineup, the minor may be taken to a county jail or municipal lockup under the direct and constant supervision of a juvenile police officer. During such time as is necessary to conduct a lineup, and while supervised by a juvenile police officer, the sight and sound separation provisions shall not apply.

(g) For purposes of processing a minor, the minor may be taken to a County Jail or municipal lockup under the direct and constant supervision of a law enforcement officer or correctional officer. During such time as is necessary to process the minor, and while supervised by a law enforcement officer or correctional officer, the sight and sound separation provisions shall not apply.

(3) If the probation officer or State's Attorney (or such other public officer designated by the court in a county having 3,000,000 or more inhabitants) determines that the minor may be a delinquent minor as described in subsection (3) of Section 5-105, and should be retained in custody but does not require physical restriction, the minor may be placed in non-secure custody for up to 40 hours pending a detention hearing.

(4) Any minor taken into temporary custody, not requiring secure detention, may, however, be detained in the home of his or her parent or guardian subject to such conditions as the court may impose.

The changes made to this Section by this amendatory Act of the 98th General Assembly apply to a minor who has been arrested or taken into custody on or after the effective date of this amendatory Act.

(Source: P.A. 96-1551, eff. 7-1-11.)

(705 ILCS 405/5-901)

Sec. 5-901. Court file.

(1) The Court file with respect to proceedings under this Article shall consist of the petitions, pleadings, victim impact statements, process, service of process, orders, writs and docket entries reflecting hearings held and judgments and decrees entered by the court. The court file shall be kept separate from other records of the court.

(a) The file, including information identifying the victim or alleged victim of any sex offense, shall be disclosed only to the following parties when necessary for discharge of their official duties:

(i) A judge of the circuit court and members of the staff of the court designated by the judge;

(ii) Parties to the proceedings and their attorneys;

(iii) Victims and their attorneys, except in cases of multiple victims of sex offenses in which case the information identifying the nonrequesting victims shall be redacted;

(iv) Probation officers, law enforcement officers or prosecutors or their staff;

(v) Adult and juvenile Prisoner Review Boards.

(b) The Court file redacted to remove any information identifying the victim or alleged victim of any sex offense shall be disclosed only to the following parties when necessary for discharge of their official duties:

(i) Authorized military personnel;

(ii) Persons engaged in bona fide research, with the permission of the judge of the juvenile court and the chief executive of the agency that prepared the particular recording: provided that publication of such research results in no disclosure of a minor's identity and protects the confidentiality of the record;

(iii) The Secretary of State to whom the Clerk of the Court shall report the disposition of all cases, as required in Section 6-204 or Section 6-205.1 of the Illinois Vehicle Code. However, information reported relative to these offenses shall be privileged and available only to the Secretary of State, courts, and police officers;

(iv) The administrator of a bonafide substance abuse student assistance program with the permission of the presiding judge of the juvenile court;

(v) Any individual, or any public or private agency or institution, having custody of the juvenile under court order or providing educational, medical or mental health services to the juvenile or a court-approved advocate for the juvenile or any placement provider or potential placement provider as determined by the court.

(3) A minor who is the victim or alleged victim in a juvenile proceeding shall be provided the same confidentiality regarding disclosure of identity as the minor who is the subject of record. Information identifying victims and alleged victims of sex offenses, shall not be disclosed or open to public inspection under any circumstances. Nothing in this Section shall prohibit the victim or alleged victim of any sex offense from voluntarily disclosing his or her identity.

(4) Relevant information, reports and records shall be made available to the Department of Juvenile Justice when a juvenile offender has been placed in the custody of the Department of Juvenile Justice.

(5) Except as otherwise provided in this subsection (5), juvenile court records shall not be made available to the general public but may be inspected by representatives of agencies, associations and news media or other properly interested persons by general or special order of the court. The State's Attorney, the minor, his or her parents, guardian and counsel shall at all times have the right to examine court files and records.

(a) The court shall allow the general public to have access to the name, address, and offense of a minor who is adjudicated a delinquent minor under this Act under either of the following circumstances:

(i) The adjudication of delinquency was based upon the minor's commission of first degree murder, attempt to commit first degree murder, aggravated criminal sexual assault, or criminal sexual assault; or

(ii) The court has made a finding that the minor was at least 13 years of age at the time the act was committed and the adjudication of delinquency was based upon the minor's commission of: (A) an act in furtherance of the commission of a felony as a member of or on behalf of a criminal street gang, (B) an act involving the use of a firearm in the commission of a felony, (C) an act that would be a Class X felony offense under or the minor's second or subsequent Class 2 or greater felony offense under the Cannabis Control Act if committed by an adult, (D) an act that would be a second or subsequent offense under Section 402 of the Illinois Controlled Substances Act if committed by an adult, (E) an act that would be an offense under Section 401 of the Illinois Controlled Substances Act if committed by an adult, or (F) an act that would be an offense under the Methamphetamine Control and Community Protection Act if committed by an adult.

(b) The court shall allow the general public to have access to the name, address, and offense of a minor who is at least 13 years of age at the time the offense is committed and who is convicted, in criminal proceedings permitted or required under Section 5-805, under either of the following circumstances:

(i) The minor has been convicted of first degree murder, attempt to commit first degree murder, aggravated criminal sexual assault, or criminal sexual assault,

(ii) The court has made a finding that the minor was at least 13 years of age at the time the offense was committed and the conviction was based upon the minor's commission of: (A) an offense in furtherance of the commission of a felony as a member of or on behalf of a criminal street gang, (B) an offense involving the use of a firearm in the commission of a felony, (C) a Class X felony offense under the Cannabis Control Act or a second or subsequent Class 2 or greater felony offense under the Cannabis Control Act, (D) a second or subsequent offense under Section 402 of the Illinois Controlled Substances Act, (E) an offense under Section 401 of the Illinois Controlled Substances Act, or (F) an offense under the Methamphetamine Control and Community Protection Act.

(6) Nothing in this Section shall be construed to limit the use of a adjudication of delinquency as evidence in any juvenile or criminal proceeding, where it would otherwise be admissible under the rules of evidence, including but not limited to, use as impeachment evidence against any witness, including the minor if he or she testifies.

(7) Nothing in this Section shall affect the right of a Civil Service Commission or appointing authority examining the character and fitness of an applicant for a position as a law enforcement officer to ascertain whether that applicant was ever adjudicated to be a delinquent minor and, if so, to examine the records or evidence which were made in proceedings under this Act.

(8) Following any adjudication of delinquency for a crime which would be a felony if committed by an adult, or following any adjudication of delinquency for a violation of Section 24-1, 24-3, 24-3.1, or 24-5 of the Criminal Code of 1961 or the Criminal Code of 2012, the State's Attorney shall ascertain whether the minor respondent is enrolled in school and, if so, shall provide a copy of the sentencing order to the principal or chief administrative officer of the school. Access to such juvenile records shall be limited to the principal or chief administrative officer of the school and any guidance counselor designated by him or her.

(9) Nothing contained in this Act prevents the sharing or disclosure of information or records relating or pertaining to juveniles subject to the provisions of the Serious Habitual Offender Comprehensive Action Program when that information is used to assist in the early identification and treatment of habitual juvenile offenders.

(11) The Clerk of the Circuit Court shall report to the Department of State Police, in the form and manner required by the Department of State Police, the final disposition of each minor who has been arrested or taken into custody before his or her 18th 17th birthday for those offenses required to be reported under Section 5 of the Criminal Identification Act. Information reported to the Department under this Section may be maintained with records that the Department files under Section 2.1 of the Criminal Identification Act.

(12) Information or records may be disclosed to the general public when the court is conducting hearings under Section 5-805 or 5-810.

The changes made to this Section by this amendatory Act of the 98th General Assembly apply to juvenile court records of a minor who has been arrested or taken into custody on or after the effective date of this amendatory Act.

(Source: P.A. 97-1150, eff. 1-25-13.)".