HB2412ham002 94TH GENERAL ASSEMBLY

Rep. John E. Bradley

Filed: 3/15/2005

09400HB2412ham002 LRB094 08327 RLC 43888 a

AMENDMENT TO HOUSE BILL 2412

AMENDMENT NO. ______. Amend House Bill 2412, AS AMENDED, by replacing everything after the enacting clause with the following:

"Section 5. The Criminal Code of 1961 is amended by re-enacting in their entirety and changing Sections 31A-1.1 and 31A-1.2 as follows:

(720 ILCS 5/31A-1.1) (from Ch. 38, par. 31A-1.1)

Sec. 31A-1.1. Bringing Contraband into a Penal Institution; Possessing Contraband in a Penal Institution.

(a) A person commits the offense of bringing contraband into a penal institution when he knowingly and without authority of any person designated or authorized to grant such authority (1) brings an item of contraband into a penal institution or (2) causes another to bring an item of contraband into a penal institution or (3) places an item of contraband in such proximity to a penal institution as to give an inmate access to the contraband.

(b) A person commits the offense of possessing contraband in a penal institution when he possesses contraband in a penal institution, regardless of the intent with which he possesses it.

(c) For the purposes of this Section, the words and phrases listed below shall be defined as follows:

(1) "Penal institution" for the purposes of items of contraband specified in clauses (i) through (xi) of subsection (c)(2) means any penitentiary, State farm, reformatory, prison, jail, house of correction, police detention area, half-way house or other institution or place for the incarceration or custody of persons under sentence for offenses awaiting trial or sentence for offenses, under arrest for an offense, a violation of probation, a violation of parole, or a violation of mandatory supervised release, or awaiting a bail setting hearing or preliminary hearing; provided that where the place for incarceration or custody is housed within another public building this Act shall not apply to that part of such building unrelated to the incarceration or custody of persons. "Penal institution" for purposes of items of contraband specified in paragraph (xii) of subsection (c)(2) means an institution or facility of the Juvenile Division of the Illinois Department of Corrections that houses minors who have been adjudicated delinquent.

(2) "Item of contraband" means any of the following:

(i) "Alcoholic liquor" as such term is defined in Section 1-3.05 of The Liquor Control Act of 1934 as such Act may be now or hereafter amended.

(ii) "Cannabis" as such term is defined in subsection (a) of Section 3 of the "Cannabis Control Act", approved August 16, 1971, as now or hereafter amended.

(iii) "Controlled substance" as such term is defined in the "Illinois Controlled Substances Act", approved August 16, 1971, as now or hereafter amended.

(iv) "Hypodermic syringe" or hypodermic needle, or any instrument adapted for use of controlled substances or cannabis by subcutaneous injection.

(v) "Weapon" means any knife, dagger, dirk, billy, razor, stiletto, broken bottle, or other piece of glass which could be used as a dangerous weapon. Such term includes any of the devices or implements designated in subsections (a)(1), (a)(3) and (a)(6) of Section 24-1 of this Act, or any other dangerous weapon or instrument of like character.

(vi) "Firearm" means any device, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas, including but not limited to:

(A) any pneumatic gun, spring gun, or B-B gun which expels a single globular projectile not exceeding .18 inch in diameter, or;

(B) any device used exclusively for signaling or safety and required as recommended by the United States Coast Guard or the Interstate Commerce Commission; or

(C) any device used exclusively for the firing of stud cartridges, explosive rivets or industrial ammunition; or

(D) any device which is powered by electrical charging units, such as batteries, and which fires one or several barbs attached to a length of wire and which, upon hitting a human, can send out current capable of disrupting the person's nervous system in such a manner as to render him incapable of normal functioning, commonly referred to as a stun gun or taser.

(vii) "Firearm ammunition" means any self-contained cartridge or shotgun shell, by whatever name known, which is designed to be used or adaptable to use in a firearm, including but not limited to:

(A) any ammunition exclusively designed for use with a device used exclusively for signaling or safety and required or recommended by the United States Coast Guard or the Interstate Commerce Commission; or

(B) any ammunition designed exclusively for use with a stud or rivet driver or other similar industrial ammunition.

(viii) "Explosive" means, but is not limited to, bomb, bombshell, grenade, bottle or other container containing an explosive substance of over one-quarter ounce for like purposes such as black powder bombs and Molotov cocktails or artillery projectiles.

(ix) "Tool to defeat security mechanisms" means, but is not limited to, handcuff or security restraint key, tool designed to pick locks, or device or instrument capable of unlocking handcuff or security restraints, doors to cells, rooms, gates or other areas of the penal institution.

(x) "Cutting tool" means, but is not limited to, hacksaw blade, wirecutter, or device, instrument or file capable of cutting through metal.

(xi) "Electronic contraband" means, but is not limited to, any electronic, video recording device, computer, or cellular communications equipment, including, but not limited to, cellular telephones, cellular telephone batteries, videotape recorders, pagers, computers, and computer peripheral equipment brought into or possessed in a penal institution without the written authorization of the Chief Administrative Officer.

(xii) With respect to institutions and facilities of the Juvenile Division of the Illinois Department of Corrections that house minors who have been adjudicated delinquent only, video games that are harmful to minors and violent video games.

(3) "Harmful to minors" means that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sado-masochistic abuse, when, taken as a whole, it (i) predominately appeals to the prurient interest in sex of minors, (ii) is patently offensive to prevailing standards in the adult community in the State as a whole with respect to what is suitable material for minors, and (iii) lacks serious literary, artistic, political, or scientific value for minors.

(4) "Nudity" means the showing of the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion below the top of the nipple, or the depiction of covered male genitals in a discernably turgid state.

(5) "Sado-masochistic abuse" means flagellation or torture by or upon a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one clothed for sexual gratification or stimulation.

(6) "Sexual conduct" means acts of masturbation, sexual intercourse, or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks or, if such person be a female, breast.

"Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal.

(7) "Video game" means an object or device that stores recorded data or instructions, receives data or instructions generated by a person who uses it, and, by processing the data or instructions, creates an interactive game capable of being played, viewed, or experienced on or through a computer, gaming system, console, or other technology.

(8) "Violent" video games include depictions of or simulations of human-on-human violence in which the player kills, seriously injures, or otherwise causes serious physical harm to another human, including but not limited to depictions of death, dismemberment, amputation, decapitation, maiming, disfigurement, mutilation of body parts, or rape.

(c-5) Bringing a video game that is harmful to minors or a violent video game into an institution or facility of the Juvenile Division of the Illinois Department of Corrections is a Class A misdemeanor. Possessing a video game that is harmful to minors or a violent video game in an institution or facility of the Juvenile Division of the Illinois Department of Corrections is a Class A misdemeanor.

(d) Bringing alcoholic liquor into a penal institution is a Class 4 felony. Possessing alcoholic liquor in a penal institution is a Class 4 felony.

(e) Bringing cannabis into a penal institution is a Class 3 felony. Possessing cannabis in a penal institution is a Class 3 felony.

(f) Bringing any amount of a controlled substance classified in Schedules III, IV or V of Article II of the Controlled Substance Act into a penal institution is a Class 2 felony. Possessing any amount of a controlled substance classified in Schedule III, IV, or V of Article II of the Controlled Substance Act in a penal institution is a Class 2 felony.

(g) Bringing any amount of a controlled substance classified in Schedules I or II of Article II of the Controlled Substance Act into a penal institution is a Class 1 felony. Possessing any amount of a controlled substance classified in Schedules I or II of Article II of the Controlled Substance Act in a penal institution is a Class 1 felony.

(h) Bringing an item of contraband listed in paragraph (iv) of subsection (c)(2) into a penal institution is a Class 1 felony. Possessing an item of contraband listed in paragraph (iv) of subsection (c)(2) in a penal institution is a Class 1 felony.

(i) Bringing an item of contraband listed in paragraph (v), (ix), (x), or (xi) of subsection (c)(2) into a penal institution is a Class 1 felony. Possessing an item of contraband listed in paragraph (v), (ix), (x), or (xi) of subsection (c)(2) in a penal institution is a Class 1 felony.

(j) Bringing an item of contraband listed in paragraphs (vi), (vii) or (viii) of subsection (c)(2) in a penal institution is a Class X felony. Possessing an item of contraband listed in paragraphs (vi), (vii), or (viii) of subsection (c)(2) in a penal institution is a Class X felony.

(k) It shall be an affirmative defense to subsection (b) hereof, that such possession was specifically authorized by rule, regulation, or directive of the governing authority of the penal institution or order issued pursuant thereto.

(l) It shall be an affirmative defense to subsection (a)(1) and subsection (b) hereof that the person bringing into or possessing contraband in a penal institution had been arrested, and that that person possessed such contraband at the time of his arrest, and that such contraband was brought into or possessed in the penal institution by that person as a direct and immediate result of his arrest.

(l-5) The Director of Corrections or chief administrative officer of an institution or facility of the Juvenile Division of the Department of Corrections may not authorize the bringing into or possession of a video game that is harmful to minors or a violent video game in an institution or facility of the Juvenile Division of the Department of Corrections.

(m) Items confiscated may be retained for use by the Department of Corrections or disposed of as deemed appropriate by the Chief Administrative Officer in accordance with Department rules or disposed of as required by law.

(Source: P.A. 88-678, eff. 7-1-95; 89-688, eff. 6-1-97.)

(720 ILCS 5/31A-1.2) (from Ch. 38, par. 31A-1.2)

Sec. 31A-1.2. Unauthorized bringing of contraband into a penal institution by an employee; unauthorized possessing of contraband in a penal institution by an employee; unauthorized delivery of contraband in a penal institution by an employee.

(a) A person commits the offense of unauthorized bringing of contraband into a penal institution by an employee when a person who is an employee knowingly and without authority or any person designated or authorized to grant such authority:

(1) brings or attempts to bring an item of contraband listed in paragraphs (i) through (iv) or (xii) of subsection (d)(4) into a penal institution, or

(2) causes or permits another to bring an item of contraband listed in paragraphs (i) through (iv) or (xii) of subsection (d)(4) into a penal institution.

(b) A person commits the offense of unauthorized possession of contraband in a penal institution by an employee when a person who is an employee knowingly and without authority of any person designated or authorized to grant such authority possesses contraband listed in paragraphs (i) through (iv) or (xii) of subsection (d)(4) in a penal institution, regardless of the intent with which he possesses it.

(c) A person commits the offense of unauthorized delivery of contraband in a penal institution by an employee when a person who is an employee knowingly and without authority of any person designated or authorized to grant such authority:

(1) delivers or possesses with intent to deliver an item of contraband to any inmate of a penal institution, or

(2) conspires to deliver or solicits the delivery of an item of contraband to any inmate of a penal institution, or

(3) causes or permits the delivery of an item of contraband to any inmate of a penal institution, or

(4) permits another person to attempt to deliver an item of contraband to any inmate of a penal institution.

(d) For purpose of this Section, the words and phrases listed below shall be defined as follows:

(1) "Penal Institution" shall have the meaning ascribed to it in subsection (c)(1) of Section 31A-1.1 of this Code;

(2) "Employee" means any elected or appointed officer, trustee or employee of a penal institution or of the governing authority of the penal institution, or any person who performs services for the penal institution pursuant to contract with the penal institution or its governing authority.

(3) "Deliver" or "delivery" means the actual, constructive or attempted transfer of possession of an item of contraband, with or without consideration, whether or not there is an agency relationship;

(4) "Item of contraband" means any of the following:

(i) "Alcoholic liquor" as such term is defined in Section 1-3.05 of the Liquor Control Act of 1934.

(ii) "Cannabis" as such term is defined in subsection (a) of Section 3 of the Cannabis Control Act.

(iii) "Controlled substance" as such term is defined in the Illinois Controlled Substances Act.

(iv) "Hypodermic syringe" or hypodermic needle, or any instrument adapted for use of controlled substances or cannabis by subcutaneous injection.

(v) "Weapon" means any knife, dagger, dirk, billy, razor, stiletto, broken bottle, or other piece of glass which could be used as a dangerous weapon. Such term includes any of the devices or implements designated in subsections (a)(1), (a)(3) and (a)(6) of Section 24-1 of this Act, or any other dangerous weapon or instrument of like character.

(vi) "Firearm" means any device, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas, including but not limited to:

(A) any pneumatic gun, spring gun, or B-B gun which expels a single globular projectile not exceeding .18 inch in diameter; or

(B) any device used exclusively for signaling or safety and required or recommended by the United States Coast Guard or the Interstate Commerce Commission; or

(C) any device used exclusively for the firing of stud cartridges, explosive rivets or industrial ammunition; or

(D) any device which is powered by electrical charging units, such as batteries, and which fires one or several barbs attached to a length of wire and which, upon hitting a human, can send out current capable of disrupting the person's nervous system in such a manner as to render him incapable of normal functioning, commonly referred to as a stun gun or taser.

(vii) "Firearm ammunition" means any self-contained cartridge or shotgun shell, by whatever name known, which is designed to be used or adaptable to use in a firearm, including but not limited to:

(A) any ammunition exclusively designed for use with a device used exclusively for signaling or safety and required or recommended by the United States Coast Guard or the Interstate Commerce Commission; or

(B) any ammunition designed exclusively for use with a stud or rivet driver or other similar industrial ammunition.

(viii) "Explosive" means, but is not limited to, bomb, bombshell, grenade, bottle or other container containing an explosive substance of over one-quarter ounce for like purposes such as black powder bombs and Molotov cocktails or artillery projectiles.

(ix) "Tool to defeat security mechanisms" means, but is not limited to, handcuff or security restraint key, tool designed to pick locks, or device or instrument capable of unlocking handcuff or security restraints, doors to cells, rooms, gates or other areas of the penal institution.

(x) "Cutting tool" means, but is not limited to, hacksaw blade, wirecutter, or device, instrument or file capable of cutting through metal.

(xi) "Electronic contraband" means, but is not limited to, any electronic, video recording device, computer, or cellular communications equipment, including, but not limited to, cellular telephones, cellular telephone batteries, videotape recorders, pagers, computers, and computer peripheral equipment.

(xii) With respect to institutions and facilities of the Juvenile Division of the Illinois Department of Corrections only, video games that are harmful to minors and violent video games.

(5) "Harmful to minors", "video game", and "violent" have the meanings ascribed to them in Section 31A-1.1 of this Code.

(e) A violation of paragraph (a) or (b) of this Section involving a video game that is harmful to minors or a violent video game is a Class A misdemeanor. A violation of paragraphs (a) or (b) of this Section involving alcohol is a Class 4 felony. A violation of paragraph (a) or (b) of this Section involving cannabis is a Class 2 felony. A violation of paragraph (a) or (b) involving any amount of a controlled substance classified in Schedules III, IV or V of Article II of the Illinois Controlled Substances Act is a Class 1 felony. A violation of paragraph (a) or (b) of this Section involving any amount of a controlled substance classified in Schedules I or II of Article II of the Illinois Controlled Substances Act is a Class X felony. A violation of paragraph (a) or (b) involving an item of contraband listed in paragraph (iv) of subsection (d)(4) is a Class X felony. A violation of paragraph (a) or (b) involving an item of contraband listed in paragraph (v) or (xi) of subsection (d)(4) is a Class 1 felony. A violation of paragraph (a) or (b) involving an item of contraband listed in paragraphs (vi), (vii) or (viii) of subsection (d)(4) is a Class X felony.

(f) A violation of paragraph (c) of this Section involving a video game that is harmful to minors or a violent video game is a Class A misdemeanor. A violation of paragraph (c) of this Section involving alcoholic liquor is a Class 3 felony. A violation of paragraph (c) involving cannabis is a Class 1 felony. A violation of paragraph (c) involving any amount of a controlled substance classified in Schedules III, IV or V of Article II of the Illinois Controlled Substances Act is a Class X felony. A violation of paragraph (c) involving any amount of a controlled substance classified in Schedules I or II of Article II of the Illinois Controlled Substances Act is a Class X felony for which the minimum term of imprisonment shall be 8 years. A violation of paragraph (c) involving an item of contraband listed in paragraph (iv) of subsection (d)(4) is a Class X felony for which the minimum term of imprisonment shall be 8 years. A violation of paragraph (c) involving an item of contraband listed in paragraph (v), (ix) or (x) of subsection (d)(4) is a Class X felony for which the minimum term of imprisonment shall be 10 years. A violation of paragraph (c) involving an item of contraband listed in paragraphs (vi), (vii) or (viii) of subsection (d)(4) is a Class X felony for which the minimum term of imprisonment shall be 12 years.

(f-5) The Director of Corrections or chief administrative officer of an institution or facility of the Juvenile Division of the Department of Corrections may not authorize the bringing into or possession of a video game that is harmful to minors or a violent video game by an employee in an institution or facility of the Juvenile Division of the Department of Corrections.

(g) Items confiscated may be retained for use by the Department of Corrections or disposed of as deemed appropriate by the Chief Administrative Officer in accordance with Department rules or disposed of as required by law.

(Source: P.A. 90-655, eff. 7-30-98; 91-357, eff. 7-29-99.)".