Full Text of SB0697 95th General Assembly
SB0697sam002 95TH GENERAL ASSEMBLY
|
Sen. A. J. Wilhelmi
Filed: 3/22/2007
|
|
09500SB0697sam002 |
|
LRB095 10951 RLC 34337 a |
|
| 1 |
| AMENDMENT TO SENATE BILL 697
| 2 |
| AMENDMENT NO. ______. Amend Senate Bill 697 by replacing | 3 |
| everything after the enacting clause with the following:
| 4 |
| "Section 5. The Criminal Code of 1961 is amended by | 5 |
| changing Sections 11-20.1A and 11-20.2 and by adding Section | 6 |
| 11-20.3 as follows:
| 7 |
| (720 ILCS 5/11-20.1A) (from Ch. 38, par. 11-20.1A)
| 8 |
| Sec. 11-20.1A. Forfeitures.
| 9 |
| (a) A person who commits the offense of keeping a place of
| 10 |
| juvenile prostitution, exploitation of a child, or child | 11 |
| pornography under
Section 11-17.1, 11-19.2, or 11-20.1 , or | 12 |
| 11-20.3 of this Code
shall forfeit to the State
of Illinois:
| 13 |
| (1) Any profits or proceeds and any interest or | 14 |
| property he or she has
acquired
or maintained in violation | 15 |
| of Section 11-17.1, 11-19.2, or
11-20.1 , or 11-20.3 of this
| 16 |
| Code that the sentencing court determines, after a |
|
|
|
09500SB0697sam002 |
- 2 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| forfeiture hearing, to
have been acquired or maintained as | 2 |
| a result of keeping a place of juvenile
prostitution, | 3 |
| exploitation of a child, or child pornography , or | 4 |
| aggravated child pornography .
| 5 |
| (2) Any interest in, security of, claim against, or | 6 |
| property or
contractual right of any kind affording a | 7 |
| source of influence over any
enterprise that he or she has | 8 |
| established, operated,
controlled, or conducted
in | 9 |
| violation of Section 11-17.1, 11-19.2, or 11-20.1 , or | 10 |
| 11-20.3 of
this Code that the
sentencing court determines, | 11 |
| after a forfeiture hearing, to have been
acquired or | 12 |
| maintained as a result of keeping a place of juvenile
| 13 |
| prostitution, exploitation of a child, or child | 14 |
| pornography , or aggravated child pornography .
| 15 |
| (3) Any computer that contains a depiction of child | 16 |
| pornography in any
encoded or decoded format in violation | 17 |
| of Section 11-20.1 of this Code. For
purposes of this | 18 |
| paragraph (3), "computer" has the meaning ascribed to it in
| 19 |
| Section 16D-2 of this Code.
| 20 |
| (b) (1) The court shall, upon petition by the Attorney | 21 |
| General or State's
Attorney at any time following | 22 |
| sentencing, conduct a hearing to determine
whether any | 23 |
| property or property interest is subject to forfeiture | 24 |
| under
this Section. At the forfeiture hearing the people | 25 |
| shall have the burden of
establishing, by a preponderance | 26 |
| of the evidence, that property or property
interests are |
|
|
|
09500SB0697sam002 |
- 3 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| subject to forfeiture under this Section.
| 2 |
| (2) In any action brought by the People of the State of | 3 |
| Illinois under
this Section, wherein any restraining | 4 |
| order, injunction or prohibition or
any other action in | 5 |
| connection with any property or interest subject to
| 6 |
| forfeiture under this Section is sought, the circuit court | 7 |
| presiding over
the trial of the person or persons charged | 8 |
| with keeping a place of juvenile
prostitution, | 9 |
| exploitation of a child or child pornography
shall first | 10 |
| determine whether there is
probable cause to believe that | 11 |
| the person or persons so charged have
committed the offense | 12 |
| of keeping a place of juvenile prostitution,
exploitation | 13 |
| of a child or child pornography
and whether the property or | 14 |
| interest is subject to forfeiture
pursuant to this Section. | 15 |
| In order to make such a determination, prior to
entering | 16 |
| any such order, the court shall conduct a hearing without a
| 17 |
| jury, wherein the People shall establish that there is: (i)
| 18 |
| probable cause that the person or persons so charged have | 19 |
| committed the
offense of keeping a place of juvenile | 20 |
| prostitution, exploitation of a
child or child pornography | 21 |
| and (ii) probable cause that any
property or interest may | 22 |
| be subject to forfeiture
pursuant to this Section. Such | 23 |
| hearing may be conducted simultaneously with a
preliminary | 24 |
| hearing, if the prosecution is commenced by information or
| 25 |
| complaint, or by motion of the People, at any stage in the | 26 |
| proceedings.
The court may accept a finding of probable |
|
|
|
09500SB0697sam002 |
- 4 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| cause at a preliminary hearing
following the filing of an | 2 |
| information charging the offense
of keeping a place of | 3 |
| juvenile prostitution, exploitation of a child or
child | 4 |
| pornography or the return of an indictment by a grand jury | 5 |
| charging
the offense of keeping a place of juvenile | 6 |
| prostitution, exploitation of a
child or child pornography | 7 |
| as sufficient evidence of
probable cause as provided in | 8 |
| item (i) above. Upon such a finding,
the circuit court | 9 |
| shall enter such restraining order,
injunction or | 10 |
| prohibition, or shall take such other action in connection
| 11 |
| with any such property or other interest subject to | 12 |
| forfeiture,
as is necessary to insure that such property is | 13 |
| not removed from the
jurisdiction of the court, concealed, | 14 |
| destroyed or otherwise disposed of by
the owner of that | 15 |
| property or interest prior to a forfeiture hearing under
| 16 |
| this Section. The Attorney General or State's Attorney | 17 |
| shall file a
certified copy of such restraining order, | 18 |
| injunction or other prohibition
with the recorder of deeds | 19 |
| or registrar of titles of each county where any
such | 20 |
| property of the defendant may be located. No such | 21 |
| injunction,
restraining order or other prohibition shall | 22 |
| affect the rights of any bona
fide purchaser, mortgagee, | 23 |
| judgment creditor or other lienholder arising
prior to the | 24 |
| date of such filing. The court may, at any time, upon | 25 |
| verified
petition by the defendant or an innocent owner or | 26 |
| innocent bona fide third
party lienholder who neither had |
|
|
|
09500SB0697sam002 |
- 5 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| knowledge of, nor consented to, the
illegal act or | 2 |
| omission, conduct a hearing to release
all or portions of | 3 |
| any such property or interest which the court
previously | 4 |
| determined to be subject to forfeiture or subject to any
| 5 |
| restraining order, injunction, or prohibition or other | 6 |
| action. The
court may release such property to the | 7 |
| defendant
or innocent owner or innocent bona fide third | 8 |
| party lienholder who
neither had knowledge of, nor | 9 |
| consented to, the illegal act or omission for
good cause | 10 |
| shown and within the sound discretion of the court.
| 11 |
| A forfeiture under this Section may be commenced by the | 12 |
| Attorney General
or a State's Attorney.
| 13 |
| (3) Upon conviction of a person of keeping a place of | 14 |
| juvenile
prostitution, exploitation of a child or child | 15 |
| pornography, the court shall
authorize the Attorney | 16 |
| General to seize all property or other interest
declared | 17 |
| forfeited under this Section upon such terms and conditions | 18 |
| as the
court shall deem proper.
| 19 |
| (4) The Attorney General is authorized to sell all | 20 |
| property forfeited
and seized pursuant to this Section, | 21 |
| unless such property is required by law
to be destroyed or | 22 |
| is harmful to the public, and, after the deduction of
all | 23 |
| requisite expenses of administration and sale, shall | 24 |
| distribute the
proceeds of such sale, along with any moneys | 25 |
| forfeited or seized, in
accordance with subsection (c) of | 26 |
| this Section.
|
|
|
|
09500SB0697sam002 |
- 6 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| (c) All monies forfeited and the sale proceeds of all other | 2 |
| property
forfeited and seized under this Section shall be | 3 |
| distributed as follows:
| 4 |
| (1) One-half shall be divided equally among all State | 5 |
| agencies and units
of local government
whose officers or | 6 |
| employees conducted the investigation which resulted in
| 7 |
| the forfeiture; and
| 8 |
| (2) One-half shall be deposited in the Violent Crime | 9 |
| Victims Assistance
Fund.
| 10 |
| (Source: P.A. 91-229, eff. 1-1-00; 92-175, eff. 1-1-02.)
| 11 |
| (720 ILCS 5/11-20.2) (from Ch. 38, par. 11-20.2)
| 12 |
| Sec. 11-20.2. Duty to report child pornography.
| 13 |
| (a) Any commercial film and photographic print processor or | 14 |
| computer technician who
has knowledge of or observes, within | 15 |
| the scope of his professional capacity
or employment, any film, | 16 |
| photograph, videotape, negative ,
or slide , computer hard drive | 17 |
| or any other magnetic or optical media which
depicts a child | 18 |
| whom the processor or computer technician knows or reasonably | 19 |
| should know to be
under the age of 18 where such child is:
| 20 |
| (i) actually or by simulation engaged in any act of sexual | 21 |
| penetration or sexual conduct
intercourse
with any person or | 22 |
| animal; or
| 23 |
| (ii) actually or by simulation engaged in any act of sexual | 24 |
| penetration or sexual conduct
contact
involving the sex organs | 25 |
| of the child and the mouth, anus, or sex organs of
another |
|
|
|
09500SB0697sam002 |
- 7 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| person or animal; or which involves the mouth, anus or sex | 2 |
| organs
of the child and the sex organs of another person or | 3 |
| animal; or
| 4 |
| (iii) actually or by simulation engaged in any act of | 5 |
| masturbation; or
| 6 |
| (iv) actually or by simulation portrayed as being the | 7 |
| object of, or
otherwise engaged in, any act of lewd fondling, | 8 |
| touching, or caressing
involving another person or animal; or
| 9 |
| (v) actually or by simulation engaged in any act of | 10 |
| excretion or
urination within a sexual context; or
| 11 |
| (vi) actually or by simulation portrayed or depicted as | 12 |
| bound, fettered,
or subject to sadistic, masochistic, or | 13 |
| sadomasochistic abuse in any sexual
context; or
| 14 |
| (vii) depicted or portrayed in any pose, posture or setting | 15 |
| involving a lewd exhibition of the unclothed or transparently | 16 |
| clothed genitals, pubic area, buttocks, or, if such person is | 17 |
| female, a fully or partially developed breast of the child or | 18 |
| other person;
| 19 |
| shall report such instance to a peace officer in the county or | 20 |
| municipality in which the film, photograph, videotape, | 21 |
| negative, slide, computer hard drive or magnetic or optical | 22 |
| media was submitted immediately or as
soon as possible. Failure | 23 |
| to make such report shall be a business offense
with a fine of | 24 |
| $1,000 .
| 25 |
| (b) For the purposes of this Section, a "computer | 26 |
| technician" is a person who installs, maintains, |
|
|
|
09500SB0697sam002 |
- 8 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| troubleshoots, repairs or upgrades computer hardware, | 2 |
| software, computer networks, peripheral equipment, electronic | 3 |
| mail systems, or provides user assistance for any of the | 4 |
| aforementioned tasks .
| 5 |
| (Source: P.A. 84-1280.)
| 6 |
| (720 ILCS 5/11-20.3 new) | 7 |
| Sec. 11-20.3. Aggravated child pornography. | 8 |
| (a) A person commits the offense of aggravated child | 9 |
| pornography who: | 10 |
| (1) films, videotapes, photographs, or otherwise | 11 |
| depicts or portrays by means of any similar visual medium | 12 |
| or reproduction or depicts by computer any child whom he or | 13 |
| she knows or reasonably should know to be under the age of | 14 |
| 13 years where such child is: | 15 |
| (i) actually or by simulation engaged in any act of | 16 |
| sexual penetration or sexual conduct with any person or | 17 |
| animal; or | 18 |
| (ii) actually or by simulation engaged in any act | 19 |
| of sexual penetration or sexual conduct involving the | 20 |
| sex organs of the child and the mouth, anus, or sex | 21 |
| organs of another person or animal; or which involves | 22 |
| the mouth, anus or sex organs of the child and the sex | 23 |
| organs of another person or animal; or | 24 |
| (iii) actually or by simulation engaged in any act | 25 |
| of masturbation; or |
|
|
|
09500SB0697sam002 |
- 9 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| (iv) actually or by simulation portrayed as being | 2 |
| the object of, or otherwise engaged in, any act of lewd | 3 |
| fondling, touching, or caressing involving another | 4 |
| person or animal; or | 5 |
| (v) actually or by simulation engaged in any act of | 6 |
| excretion or urination within a sexual context; or | 7 |
| (vi) actually or by simulation portrayed or | 8 |
| depicted as bound, fettered, or subject to sadistic, | 9 |
| masochistic, or sadomasochistic abuse in any sexual | 10 |
| context; or | 11 |
| (vii) depicted or portrayed in any pose, posture or | 12 |
| setting involving a lewd exhibition of the unclothed or | 13 |
| transparently clothed genitals, pubic area, buttocks, | 14 |
| or, if such person is female, a fully or partially | 15 |
| developed breast of the child or other person; or | 16 |
| (2) with the knowledge of the nature or content | 17 |
| thereof, reproduces, disseminates, offers to disseminate, | 18 |
| exhibits or possesses with intent to disseminate any film, | 19 |
| videotape, photograph or other similar visual reproduction | 20 |
| or depiction by computer of any child whom the person knows | 21 |
| or reasonably should know to be under the age of 13 engaged | 22 |
| in any activity described in subparagraphs (i) through | 23 |
| (vii) of paragraph (1) of this subsection; or | 24 |
| (3) with knowledge of the subject matter or theme | 25 |
| thereof, produces any stage play, live performance, film, | 26 |
| videotape or other similar visual portrayal or depiction by |
|
|
|
09500SB0697sam002 |
- 10 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| computer which includes a child whom the person knows or | 2 |
| reasonably should know to be under the age of 13 engaged in | 3 |
| any activity described in subparagraphs (i) through (vii) | 4 |
| of paragraph (1) of this subsection; or | 5 |
| (4) solicits, uses, persuades, induces, entices, or | 6 |
| coerces any child whom he or she knows or reasonably should | 7 |
| know to be under the age of 13 to appear in any stage play, | 8 |
| live presentation, film, videotape, photograph or other | 9 |
| similar visual reproduction or depiction by computer in | 10 |
| which the child or severely or profoundly mentally retarded | 11 |
| person is or will be depicted, actually or by simulation, | 12 |
| in any act, pose or setting described in subparagraphs (i) | 13 |
| through (vii) of paragraph (1) of this subsection; or | 14 |
| (5) is a parent, step-parent, legal guardian or other | 15 |
| person having care or custody of a child whom the person | 16 |
| knows or reasonably should know to be under the age of 13 | 17 |
| and who knowingly permits, induces, promotes, or arranges | 18 |
| for such child to appear in any stage play, live | 19 |
| performance, film, videotape, photograph or other similar | 20 |
| visual presentation, portrayal or simulation or depiction | 21 |
| by computer of any act or activity described in | 22 |
| subparagraphs (i) through (vii) of paragraph (1) of this | 23 |
| subsection; or | 24 |
| (6) with knowledge of the nature or content thereof, | 25 |
| possesses any film, videotape, photograph or other similar | 26 |
| visual reproduction or depiction by computer of any child |
|
|
|
09500SB0697sam002 |
- 11 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| whom the person knows or reasonably should know to be under | 2 |
| the age of 13 engaged in any activity described in | 3 |
| subparagraphs (i) through (vii) of paragraph (1) of this | 4 |
| subsection; or | 5 |
| (7) solicits, or knowingly uses, persuades, induces, | 6 |
| entices, or coerces a person to provide a child under the | 7 |
| age of 13 to appear in any videotape, photograph, film, | 8 |
| stage play, live presentation, or other similar visual | 9 |
| reproduction or depiction by computer in which the child | 10 |
| will be depicted, actually or by simulation, in any act, | 11 |
| pose, or setting described in subparagraphs (i) through | 12 |
| (vii) of paragraph (1) of this subsection. | 13 |
| (b)(1) It shall be an affirmative defense to a charge of | 14 |
| aggravated child pornography that the defendant reasonably | 15 |
| believed, under all of the circumstances, that the child was 13 | 16 |
| years of age or older, but only where, prior to the act or acts | 17 |
| giving rise to a prosecution under this Section, he or she took | 18 |
| some affirmative action or made a bonafide inquiry designed to | 19 |
| ascertain whether the child was 13 years of age or older and | 20 |
| his or her reliance upon the information so obtained was | 21 |
| clearly reasonable. | 22 |
| (2) The charge of aggravated child pornography shall not | 23 |
| apply to the performance of official duties by law enforcement | 24 |
| or prosecuting officers or persons employed by law enforcement | 25 |
| or prosecuting agencies, court personnel or attorneys, nor to | 26 |
| bonafide treatment or professional education programs |
|
|
|
09500SB0697sam002 |
- 12 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| conducted by licensed physicians, psychologists or social | 2 |
| workers. | 3 |
| (3) If the defendant possessed more than 3 of the same | 4 |
| film, videotape or visual reproduction or depiction by computer | 5 |
| in which aggravated child pornography is depicted, then the | 6 |
| trier of fact may infer that the defendant possessed such | 7 |
| materials with the intent to disseminate them. | 8 |
| (4) The charge of aggravated child pornography does not | 9 |
| apply to a person who does not voluntarily possess a film, | 10 |
| videotape, or visual reproduction or depiction by computer in | 11 |
| which aggravated child pornography is depicted. Possession is | 12 |
| voluntary if the defendant knowingly procures or receives a | 13 |
| film, videotape, or visual reproduction or depiction for a | 14 |
| sufficient time to be able to terminate his or her possession. | 15 |
| (c) Sentence:
(1) A person who commits a violation of | 16 |
| paragraph (1), (2), (3), (4), (5), or (7) of subsection (a) is | 17 |
| guilty of a Class X felony with a mandatory minimum fine of | 18 |
| $2,000 and a maximum fine of $100,000. | 19 |
| (2) A person who commits a violation of paragraph (6) of | 20 |
| subsection (a) is guilty of a Class 2 felony with a mandatory | 21 |
| minimum fine of $1000 and a maximum fine of $100,000. | 22 |
| (3) A person who commits a violation of paragraph (1), (2), | 23 |
| (3), (4), (5), or (7) of subsection (a) where the defendant has | 24 |
| previously been convicted under the laws of this State or any | 25 |
| other state of the offense of child pornography, aggravated | 26 |
| child pornography, aggravated criminal sexual abuse, |
|
|
|
09500SB0697sam002 |
- 13 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| aggravated criminal sexual assault, predatory criminal sexual | 2 |
| assault of a child, or any of the offenses formerly known as | 3 |
| rape, deviate sexual assault, indecent liberties with a child, | 4 |
| or aggravated indecent liberties with a child where the victim | 5 |
| was under the age of 18 years or an offense that is | 6 |
| substantially equivalent to those offenses, is guilty of a | 7 |
| Class X Felony for which the person shall be sentenced to a | 8 |
| term of imprisonment of not less than 9 years with a mandatory | 9 |
| minimum fine of $2,000 and a maximum fine of $100,000. | 10 |
| (4) A person who commits a violation of paragraph (6) of | 11 |
| subsection (a) where the defendant has previously been | 12 |
| convicted under the laws of this State or any other state of | 13 |
| the offense of child pornography, aggravated child | 14 |
| pornography, aggravated criminal sexual abuse, aggravated | 15 |
| criminal sexual assault, predatory criminal sexual assault of a | 16 |
| child, or any of the offenses formerly known as rape, deviate | 17 |
| sexual assault, indecent liberties with a child, or aggravated | 18 |
| indecent liberties with a child where the victim was under the | 19 |
| age of 18 years or an offense that is substantially equivalent | 20 |
| to those offenses, is guilty of a Class 1 felony with a | 21 |
| mandatory minimum fine of $1000 and a maximum fine of $100,000. | 22 |
| (d) If a person is convicted of a second or subsequent | 23 |
| violation of this Section within 10 years of a prior | 24 |
| conviction, the court shall order a presentence psychiatric | 25 |
| examination of the person. The examiner shall report to the | 26 |
| court whether treatment of the person is necessary. |
|
|
|
09500SB0697sam002 |
- 14 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| (e) Any film, videotape, photograph or other similar visual | 2 |
| reproduction or depiction by computer which includes a child | 3 |
| under the age of 13 engaged in any activity described in | 4 |
| subparagraphs (i) through (vii) or paragraph (1) of subsection | 5 |
| (a), and any material or equipment used or intended for use in | 6 |
| photographing, filming, printing, producing, reproducing, | 7 |
| manufacturing, projecting, exhibiting, depiction by computer, | 8 |
| or disseminating such material shall be seized and forfeited in | 9 |
| the manner, method and procedure provided by Section 36-1 of | 10 |
| this Code for the seizure and forfeiture of vessels, vehicles | 11 |
| and aircraft. | 12 |
| (e-5) Upon the conclusion of a case brought under this | 13 |
| Section, the court shall seal all evidence depicting a victim | 14 |
| or witness that is sexually explicit. The evidence may be | 15 |
| unsealed and viewed, on a motion of the party seeking to unseal | 16 |
| and view the evidence, only for good cause shown and in the | 17 |
| discretion of the court. The motion must expressly set forth | 18 |
| the purpose for viewing the material. The State's attorney and | 19 |
| the victim, if possible, shall be provided reasonable notice of | 20 |
| the hearing on the motion to unseal the evidence. Any person | 21 |
| entitled to notice of a hearing under this subsection (e-5) may | 22 |
| object to the motion. | 23 |
| (f) Definitions. For the purposes of this Section: | 24 |
| (1) "Disseminate" means (i) to sell, distribute, | 25 |
| exchange or transfer possession, whether with or without | 26 |
| consideration or (ii) to make a depiction by computer |
|
|
|
09500SB0697sam002 |
- 15 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| available for distribution or downloading through the | 2 |
| facilities of any telecommunications network or through | 3 |
| any other means of transferring computer programs or data | 4 |
| to a computer. | 5 |
| (2) "Produce" means to direct, promote, advertise, | 6 |
| publish, manufacture, issue, present or show. | 7 |
| (3) "Reproduce" means to make a duplication or copy. | 8 |
| (4) "Depict by computer" means to generate or create, | 9 |
| or cause to be created or generated, a computer program or | 10 |
| data that, after being processed by a computer either alone | 11 |
| or in conjunction with one or more computer programs, | 12 |
| results in a visual depiction on a computer monitor, | 13 |
| screen, or display. | 14 |
| (5) "Depiction by computer" means a computer program or | 15 |
| data that, after being processed by a computer either alone | 16 |
| or in conjunction with one or more computer programs, | 17 |
| results in a visual depiction on a computer monitor, | 18 |
| screen, or display. | 19 |
| (6) "Computer", "computer program", and "data" have | 20 |
| the meanings ascribed to them in Section 16D-2 of this | 21 |
| Code. | 22 |
| (7) For the purposes of this Section, "child" means a | 23 |
| person, either in part, or in total, under the age of 13, | 24 |
| regardless of the method by which the film, videotape, | 25 |
| photograph, or other similar visual medium or reproduction | 26 |
| or depiction by computer is created, adopted, or modified |
|
|
|
09500SB0697sam002 |
- 16 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| to appear as such. | 2 |
| (8) "Sexual penetration" and "sexual conduct" have the | 3 |
| meanings ascribed to them in Section 12-12 of this Code. | 4 |
| (g) When a charge of aggravated child pornography is | 5 |
| brought, the age of the child is an element of the offense to | 6 |
| be resolved by the trier of fact as either exceeding or not | 7 |
| exceeding the age in question. The trier of fact can rely on | 8 |
| its own everyday observations and common experiences in making | 9 |
| this determination.
| 10 |
| Section 10. The Unified Code of Corrections is amended by | 11 |
| changing Section 5-5-3 as follows:
| 12 |
| (730 ILCS 5/5-5-3) (from Ch. 38, par. 1005-5-3)
| 13 |
| Sec. 5-5-3. Disposition.
| 14 |
| (a) Except as provided in Section 11-501 of the Illinois | 15 |
| Vehicle Code, every person convicted of an offense shall be | 16 |
| sentenced as provided
in this Section.
| 17 |
| (b) The following options shall be appropriate | 18 |
| dispositions, alone
or in combination, for all felonies and | 19 |
| misdemeanors other than those
identified in subsection (c) of | 20 |
| this Section:
| 21 |
| (1) A period of probation.
| 22 |
| (2) A term of periodic imprisonment.
| 23 |
| (3) A term of conditional discharge.
| 24 |
| (4) A term of imprisonment.
|
|
|
|
09500SB0697sam002 |
- 17 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| (5) An order directing the offender to clean up and | 2 |
| repair the
damage, if the offender was convicted under | 3 |
| paragraph (h) of Section
21-1 of the Criminal Code of 1961 | 4 |
| (now repealed).
| 5 |
| (6) A fine.
| 6 |
| (7) An order directing the offender to make restitution | 7 |
| to the
victim under Section 5-5-6 of this Code.
| 8 |
| (8) A sentence of participation in a county impact | 9 |
| incarceration
program under Section 5-8-1.2 of this Code. | 10 |
| (9) A term of imprisonment in combination with a term | 11 |
| of probation when the offender has been admitted into a | 12 |
| drug court program under Section 20 of the Drug Court | 13 |
| Treatment Act.
| 14 |
| Neither a fine nor restitution shall be the sole | 15 |
| disposition
for a felony and either or both may be imposed only | 16 |
| in conjunction with
another disposition.
| 17 |
| (c) (1) When a defendant is found guilty of first degree | 18 |
| murder the
State may either seek a sentence of imprisonment | 19 |
| under Section 5-8-1 of
this Code, or where appropriate seek | 20 |
| a sentence of death under Section 9-1
of the Criminal Code | 21 |
| of 1961.
| 22 |
| (2) A period of probation, a term of periodic | 23 |
| imprisonment or
conditional discharge shall not be imposed | 24 |
| for the following offenses.
The court shall sentence the | 25 |
| offender to not less than the minimum term
of imprisonment | 26 |
| set forth in this Code for the following offenses, and
may |
|
|
|
09500SB0697sam002 |
- 18 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| order a fine or restitution or both in conjunction with | 2 |
| such term of
imprisonment:
| 3 |
| (A) First degree murder where the death penalty is | 4 |
| not imposed.
| 5 |
| (B) Attempted first degree murder.
| 6 |
| (C) A Class X felony.
| 7 |
| (D) A violation of Section 401.1 or 407 of the
| 8 |
| Illinois Controlled Substances Act, or a violation of | 9 |
| subdivision (c)(1) or
(c)(2) of
Section 401 of that Act | 10 |
| which relates to more than 5 grams of a substance
| 11 |
| containing heroin or cocaine or an analog thereof.
| 12 |
| (E) A violation of Section 5.1 or 9 of the Cannabis | 13 |
| Control
Act.
| 14 |
| (F) A Class 2 or greater felony if the offender had | 15 |
| been convicted
of a Class 2 or greater felony within 10 | 16 |
| years of the date on which the
offender
committed the | 17 |
| offense for which he or she is being sentenced, except | 18 |
| as
otherwise provided in Section 40-10 of the | 19 |
| Alcoholism and Other Drug Abuse and
Dependency Act.
| 20 |
| (F-5) A violation of Section 24-1, 24-1.1, or | 21 |
| 24-1.6 of the Criminal Code of 1961 for which | 22 |
| imprisonment is prescribed in those Sections.
| 23 |
| (G) Residential burglary, except as otherwise | 24 |
| provided in Section 40-10
of the Alcoholism and Other | 25 |
| Drug Abuse and Dependency Act.
| 26 |
| (H) Criminal sexual assault.
|
|
|
|
09500SB0697sam002 |
- 19 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| (I) Aggravated battery of a senior citizen.
| 2 |
| (J) A forcible felony if the offense was related to | 3 |
| the activities of an
organized gang.
| 4 |
| Before July 1, 1994, for the purposes of this | 5 |
| paragraph, "organized
gang" means an association of 5 | 6 |
| or more persons, with an established hierarchy,
that | 7 |
| encourages members of the association to perpetrate | 8 |
| crimes or provides
support to the members of the | 9 |
| association who do commit crimes.
| 10 |
| Beginning July 1, 1994, for the purposes of this | 11 |
| paragraph,
"organized gang" has the meaning ascribed | 12 |
| to it in Section 10 of the Illinois
Streetgang | 13 |
| Terrorism Omnibus Prevention Act.
| 14 |
| (K) Vehicular hijacking.
| 15 |
| (L) A second or subsequent conviction for the | 16 |
| offense of hate crime
when the underlying offense upon | 17 |
| which the hate crime is based is felony
aggravated
| 18 |
| assault or felony mob action.
| 19 |
| (M) A second or subsequent conviction for the | 20 |
| offense of institutional
vandalism if the damage to the | 21 |
| property exceeds $300.
| 22 |
| (N) A Class 3 felony violation of paragraph (1) of | 23 |
| subsection (a) of
Section 2 of the Firearm Owners | 24 |
| Identification Card Act.
| 25 |
| (O) A violation of Section 12-6.1 of the Criminal | 26 |
| Code of 1961.
|
|
|
|
09500SB0697sam002 |
- 20 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| (P) A violation of paragraph (1), (2), (3), (4), | 2 |
| (5), or (7) of
subsection (a)
of Section 11-20.1 of the | 3 |
| Criminal Code of 1961.
| 4 |
| (Q) A violation of Section 20-1.2 or 20-1.3 of the | 5 |
| Criminal Code of
1961.
| 6 |
| (R) A violation of Section 24-3A of the Criminal | 7 |
| Code of
1961.
| 8 |
| (S) (Blank).
| 9 |
| (T) A second or subsequent violation of the | 10 |
| Methamphetamine Control and Community Protection Act.
| 11 |
| (U) A violation of paragraph (4) of subsection (c) | 12 |
| of Section 11-20.3 of the Criminal Code of 1961.
| 13 |
| (3) (Blank).
| 14 |
| (4) A minimum term of imprisonment of not less than 10
| 15 |
| consecutive days or 30 days of community service shall be | 16 |
| imposed for a
violation of paragraph (c) of Section 6-303 | 17 |
| of the Illinois Vehicle Code.
| 18 |
| (4.1) (Blank).
| 19 |
| (4.2) Except as provided in paragraph (4.3) of this | 20 |
| subsection (c), a
minimum of
100 hours of community service | 21 |
| shall be imposed for a second violation of
Section 6-303
of | 22 |
| the Illinois Vehicle Code.
| 23 |
| (4.3) A minimum term of imprisonment of 30 days or 300 | 24 |
| hours of community
service, as determined by the court, | 25 |
| shall
be imposed for a second violation of subsection (c) | 26 |
| of Section 6-303 of the
Illinois Vehicle Code.
|
|
|
|
09500SB0697sam002 |
- 21 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| (4.4) Except as provided in paragraph (4.5) and | 2 |
| paragraph (4.6) of this
subsection (c), a
minimum term of | 3 |
| imprisonment of 30 days or 300 hours of community service, | 4 |
| as
determined by the court, shall
be imposed
for a third or | 5 |
| subsequent violation of Section 6-303 of the Illinois | 6 |
| Vehicle
Code.
| 7 |
| (4.5) A minimum term of imprisonment of 30 days
shall | 8 |
| be imposed for a third violation of subsection (c) of
| 9 |
| Section 6-303 of the Illinois Vehicle Code.
| 10 |
| (4.6) A minimum term of imprisonment of 180 days shall | 11 |
| be imposed for a
fourth or subsequent violation of | 12 |
| subsection (c) of Section 6-303 of the
Illinois Vehicle | 13 |
| Code.
| 14 |
| (5) The court may sentence an offender convicted of a | 15 |
| business
offense or a petty offense or a corporation or | 16 |
| unincorporated
association convicted of any offense to:
| 17 |
| (A) a period of conditional discharge;
| 18 |
| (B) a fine;
| 19 |
| (C) make restitution to the victim under Section | 20 |
| 5-5-6 of this Code.
| 21 |
| (5.1) In addition to any penalties imposed under | 22 |
| paragraph (5) of this
subsection (c), and except as | 23 |
| provided in paragraph (5.2) or (5.3), a person
convicted of | 24 |
| violating subsection (c) of Section 11-907 of the Illinois
| 25 |
| Vehicle Code shall have his or her driver's license, | 26 |
| permit, or privileges
suspended for at least 90 days but |
|
|
|
09500SB0697sam002 |
- 22 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| not more than one year, if the violation
resulted in damage | 2 |
| to the property of another person.
| 3 |
| (5.2) In addition to any penalties imposed under | 4 |
| paragraph (5) of this
subsection (c), and except as | 5 |
| provided in paragraph (5.3), a person convicted
of | 6 |
| violating subsection (c) of Section 11-907 of the Illinois | 7 |
| Vehicle Code
shall have his or her driver's license, | 8 |
| permit, or privileges suspended for at
least 180 days but | 9 |
| not more than 2 years, if the violation resulted in injury
| 10 |
| to
another person.
| 11 |
| (5.3) In addition to any penalties imposed under | 12 |
| paragraph (5) of
this
subsection (c), a person convicted of | 13 |
| violating subsection (c) of Section
11-907 of the Illinois | 14 |
| Vehicle Code shall have his or her driver's license,
| 15 |
| permit, or privileges suspended for 2 years, if the | 16 |
| violation resulted in the
death of another person.
| 17 |
| (5.4) In addition to any penalties imposed under | 18 |
| paragraph (5) of this subsection (c), a person convicted of | 19 |
| violating Section 3-707 of the Illinois Vehicle Code shall | 20 |
| have his or her driver's license, permit, or privileges | 21 |
| suspended for 3 months and until he or she has paid a | 22 |
| reinstatement fee of $100. | 23 |
| (5.5) In addition to any penalties imposed under | 24 |
| paragraph (5) of this subsection (c), a person convicted of | 25 |
| violating Section 3-707 of the Illinois Vehicle Code during | 26 |
| a period in which his or her driver's license, permit, or |
|
|
|
09500SB0697sam002 |
- 23 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| privileges were suspended for a previous violation of that | 2 |
| Section shall have his or her driver's license, permit, or | 3 |
| privileges suspended for an additional 6 months after the | 4 |
| expiration of the original 3-month suspension and until he | 5 |
| or she has paid a reinstatement fee of $100.
| 6 |
| (6) In no case shall an offender be eligible for a | 7 |
| disposition of
probation or conditional discharge for a | 8 |
| Class 1 felony committed while
he was serving a term of | 9 |
| probation or conditional discharge for a felony.
| 10 |
| (7) When a defendant is adjudged a habitual criminal | 11 |
| under Article
33B of the Criminal Code of 1961, the court | 12 |
| shall sentence
the defendant to a term of natural life | 13 |
| imprisonment.
| 14 |
| (8) When a defendant, over the age of 21 years, is | 15 |
| convicted of a
Class 1 or Class 2 felony, after having | 16 |
| twice been convicted
in any state or
federal court of an | 17 |
| offense that contains the same elements as an offense now
| 18 |
| classified in Illinois as a Class 2 or greater Class felony
| 19 |
| and such charges are
separately brought and tried and arise | 20 |
| out of different series of acts,
such defendant shall be | 21 |
| sentenced as a Class X offender. This paragraph
shall not | 22 |
| apply unless (1) the first felony was committed after the
| 23 |
| effective date of this amendatory Act of 1977; and (2) the | 24 |
| second felony
was committed after conviction on the first; | 25 |
| and (3) the third felony
was committed after conviction on | 26 |
| the second.
A person sentenced as a Class X offender under |
|
|
|
09500SB0697sam002 |
- 24 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| this paragraph is not
eligible to apply for treatment as a | 2 |
| condition of probation as provided by
Section 40-10 of the | 3 |
| Alcoholism and Other Drug Abuse and Dependency Act.
| 4 |
| (9) A defendant convicted of a second or subsequent | 5 |
| offense of ritualized
abuse of a child may be sentenced to | 6 |
| a term of natural life imprisonment.
| 7 |
| (10) (Blank).
| 8 |
| (11) The court shall impose a minimum fine of $1,000 | 9 |
| for a first offense
and $2,000 for a second or subsequent | 10 |
| offense upon a person convicted of or
placed on supervision | 11 |
| for battery when the individual harmed was a sports
| 12 |
| official or coach at any level of competition and the act | 13 |
| causing harm to the
sports
official or coach occurred | 14 |
| within an athletic facility or within the immediate | 15 |
| vicinity
of the athletic facility at which the sports | 16 |
| official or coach was an active
participant
of the athletic | 17 |
| contest held at the athletic facility. For the purposes of
| 18 |
| this paragraph (11), "sports official" means a person at an | 19 |
| athletic contest
who enforces the rules of the contest, | 20 |
| such as an umpire or referee; "athletic facility" means an | 21 |
| indoor or outdoor playing field or recreational area where | 22 |
| sports activities are conducted;
and "coach" means a person | 23 |
| recognized as a coach by the sanctioning
authority that | 24 |
| conducted the sporting event. | 25 |
| (12) A person may not receive a disposition of court | 26 |
| supervision for a
violation of Section 5-16 of the Boat |
|
|
|
09500SB0697sam002 |
- 25 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| Registration and Safety Act if that
person has previously | 2 |
| received a disposition of court supervision for a
violation | 3 |
| of that Section.
| 4 |
| (d) In any case in which a sentence originally imposed is | 5 |
| vacated,
the case shall be remanded to the trial court. The | 6 |
| trial court shall
hold a hearing under Section 5-4-1 of the | 7 |
| Unified Code of Corrections
which may include evidence of the | 8 |
| defendant's life, moral character and
occupation during the | 9 |
| time since the original sentence was passed. The
trial court | 10 |
| shall then impose sentence upon the defendant. The trial
court | 11 |
| may impose any sentence which could have been imposed at the
| 12 |
| original trial subject to Section 5-5-4 of the Unified Code of | 13 |
| Corrections.
If a sentence is vacated on appeal or on | 14 |
| collateral attack due to the
failure of the trier of fact at | 15 |
| trial to determine beyond a reasonable doubt
the
existence of a | 16 |
| fact (other than a prior conviction) necessary to increase the
| 17 |
| punishment for the offense beyond the statutory maximum | 18 |
| otherwise applicable,
either the defendant may be re-sentenced | 19 |
| to a term within the range otherwise
provided or, if the State | 20 |
| files notice of its intention to again seek the
extended | 21 |
| sentence, the defendant shall be afforded a new trial.
| 22 |
| (e) In cases where prosecution for
aggravated criminal | 23 |
| sexual abuse under Section 12-16 of the
Criminal Code of 1961 | 24 |
| results in conviction of a defendant
who was a family member of | 25 |
| the victim at the time of the commission of the
offense, the | 26 |
| court shall consider the safety and welfare of the victim and
|
|
|
|
09500SB0697sam002 |
- 26 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| may impose a sentence of probation only where:
| 2 |
| (1) the court finds (A) or (B) or both are appropriate:
| 3 |
| (A) the defendant is willing to undergo a court | 4 |
| approved counseling
program for a minimum duration of 2 | 5 |
| years; or
| 6 |
| (B) the defendant is willing to participate in a | 7 |
| court approved plan
including but not limited to the | 8 |
| defendant's:
| 9 |
| (i) removal from the household;
| 10 |
| (ii) restricted contact with the victim;
| 11 |
| (iii) continued financial support of the | 12 |
| family;
| 13 |
| (iv) restitution for harm done to the victim; | 14 |
| and
| 15 |
| (v) compliance with any other measures that | 16 |
| the court may
deem appropriate; and
| 17 |
| (2) the court orders the defendant to pay for the | 18 |
| victim's counseling
services, to the extent that the court | 19 |
| finds, after considering the
defendant's income and | 20 |
| assets, that the defendant is financially capable of
paying | 21 |
| for such services, if the victim was under 18 years of age | 22 |
| at the
time the offense was committed and requires | 23 |
| counseling as a result of the
offense.
| 24 |
| Probation may be revoked or modified pursuant to Section | 25 |
| 5-6-4; except
where the court determines at the hearing that | 26 |
| the defendant violated a
condition of his or her probation |
|
|
|
09500SB0697sam002 |
- 27 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| restricting contact with the victim or
other family members or | 2 |
| commits another offense with the victim or other
family | 3 |
| members, the court shall revoke the defendant's probation and
| 4 |
| impose a term of imprisonment.
| 5 |
| For the purposes of this Section, "family member" and | 6 |
| "victim" shall have
the meanings ascribed to them in Section | 7 |
| 12-12 of the Criminal Code of
1961.
| 8 |
| (f) This Article shall not deprive a court in other | 9 |
| proceedings to
order a forfeiture of property, to suspend or | 10 |
| cancel a license, to
remove a person from office, or to impose | 11 |
| any other civil penalty.
| 12 |
| (g) Whenever a defendant is convicted of an offense under | 13 |
| Sections
11-14, 11-15, 11-15.1, 11-16, 11-17, 11-18, 11-18.1, | 14 |
| 11-19, 11-19.1, 11-19.2,
12-13, 12-14, 12-14.1, 12-15 or 12-16 | 15 |
| of the Criminal Code of 1961,
the defendant shall undergo | 16 |
| medical testing to
determine whether the defendant has any | 17 |
| sexually transmissible disease,
including a test for infection | 18 |
| with human immunodeficiency virus (HIV) or
any other identified | 19 |
| causative agent of acquired immunodeficiency syndrome
(AIDS). | 20 |
| Any such medical test shall be performed only by appropriately
| 21 |
| licensed medical practitioners and may include an analysis of | 22 |
| any bodily
fluids as well as an examination of the defendant's | 23 |
| person.
Except as otherwise provided by law, the results of | 24 |
| such test shall be kept
strictly confidential by all medical | 25 |
| personnel involved in the testing and must
be personally | 26 |
| delivered in a sealed envelope to the judge of the court in |
|
|
|
09500SB0697sam002 |
- 28 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| which
the conviction was entered for the judge's inspection in | 2 |
| camera. Acting in
accordance with the best interests of the | 3 |
| victim and the public, the judge
shall have the discretion to | 4 |
| determine to whom, if anyone, the results of the
testing may be | 5 |
| revealed. The court shall notify the defendant
of the test | 6 |
| results. The court shall
also notify the victim if requested by | 7 |
| the victim, and if the victim is under
the age of 15 and if | 8 |
| requested by the victim's parents or legal guardian, the
court | 9 |
| shall notify the victim's parents or legal guardian of the test
| 10 |
| results.
The court shall provide information on the | 11 |
| availability of HIV testing
and counseling at Department of | 12 |
| Public Health facilities to all parties to
whom the results of | 13 |
| the testing are revealed and shall direct the State's
Attorney | 14 |
| to provide the information to the victim when possible.
A | 15 |
| State's Attorney may petition the court to obtain the results | 16 |
| of any HIV test
administered under this Section, and the court | 17 |
| shall grant the disclosure if
the State's Attorney shows it is | 18 |
| relevant in order to prosecute a charge of
criminal | 19 |
| transmission of HIV under Section 12-16.2 of the Criminal Code | 20 |
| of 1961
against the defendant. The court shall order that the | 21 |
| cost of any such test
shall be paid by the county and may be | 22 |
| taxed as costs against the convicted
defendant.
| 23 |
| (g-5) When an inmate is tested for an airborne communicable | 24 |
| disease, as
determined by the Illinois Department of Public | 25 |
| Health including but not
limited to tuberculosis, the results | 26 |
| of the test shall be
personally delivered by the warden or his |
|
|
|
09500SB0697sam002 |
- 29 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| or her designee in a sealed envelope
to the judge of the court | 2 |
| in which the inmate must appear for the judge's
inspection in | 3 |
| camera if requested by the judge. Acting in accordance with the
| 4 |
| best interests of those in the courtroom, the judge shall have | 5 |
| the discretion
to determine what if any precautions need to be | 6 |
| taken to prevent transmission
of the disease in the courtroom.
| 7 |
| (h) Whenever a defendant is convicted of an offense under | 8 |
| Section 1 or 2
of the Hypodermic Syringes and Needles Act, the | 9 |
| defendant shall undergo
medical testing to determine whether | 10 |
| the defendant has been exposed to human
immunodeficiency virus | 11 |
| (HIV) or any other identified causative agent of
acquired | 12 |
| immunodeficiency syndrome (AIDS). Except as otherwise provided | 13 |
| by
law, the results of such test shall be kept strictly | 14 |
| confidential by all
medical personnel involved in the testing | 15 |
| and must be personally delivered in a
sealed envelope to the | 16 |
| judge of the court in which the conviction was entered
for the | 17 |
| judge's inspection in camera. Acting in accordance with the | 18 |
| best
interests of the public, the judge shall have the | 19 |
| discretion to determine to
whom, if anyone, the results of the | 20 |
| testing may be revealed. The court shall
notify the defendant | 21 |
| of a positive test showing an infection with the human
| 22 |
| immunodeficiency virus (HIV). The court shall provide | 23 |
| information on the
availability of HIV testing and counseling | 24 |
| at Department of Public Health
facilities to all parties to | 25 |
| whom the results of the testing are revealed and
shall direct | 26 |
| the State's Attorney to provide the information to the victim |
|
|
|
09500SB0697sam002 |
- 30 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| when
possible. A State's Attorney may petition the court to | 2 |
| obtain the results of
any HIV test administered under this | 3 |
| Section, and the court shall grant the
disclosure if the | 4 |
| State's Attorney shows it is relevant in order to prosecute a
| 5 |
| charge of criminal transmission of HIV under Section 12-16.2 of | 6 |
| the Criminal
Code of 1961 against the defendant. The court | 7 |
| shall order that the cost of any
such test shall be paid by the | 8 |
| county and may be taxed as costs against the
convicted | 9 |
| defendant.
| 10 |
| (i) All fines and penalties imposed under this Section for | 11 |
| any violation
of Chapters 3, 4, 6, and 11 of the Illinois | 12 |
| Vehicle Code, or a similar
provision of a local ordinance, and | 13 |
| any violation
of the Child Passenger Protection Act, or a | 14 |
| similar provision of a local
ordinance, shall be collected and | 15 |
| disbursed by the circuit
clerk as provided under Section 27.5 | 16 |
| of the Clerks of Courts Act.
| 17 |
| (j) In cases when prosecution for any violation of Section | 18 |
| 11-6, 11-8,
11-9, 11-11, 11-14, 11-15, 11-15.1, 11-16, 11-17, | 19 |
| 11-17.1, 11-18, 11-18.1,
11-19, 11-19.1, 11-19.2, 11-20.1, | 20 |
| 11-21, 12-13, 12-14, 12-14.1, 12-15, or
12-16 of the
Criminal | 21 |
| Code of 1961, any violation of the Illinois Controlled | 22 |
| Substances Act,
any violation of the Cannabis Control Act, or | 23 |
| any violation of the Methamphetamine Control and Community | 24 |
| Protection Act results in conviction, a
disposition of court | 25 |
| supervision, or an order of probation granted under
Section 10 | 26 |
| of the Cannabis Control Act, Section 410 of the Illinois
|
|
|
|
09500SB0697sam002 |
- 31 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| Controlled Substance Act, or Section 70 of the Methamphetamine | 2 |
| Control and Community Protection Act of a defendant, the court | 3 |
| shall determine whether the
defendant is employed by a facility | 4 |
| or center as defined under the Child Care
Act of 1969, a public | 5 |
| or private elementary or secondary school, or otherwise
works | 6 |
| with children under 18 years of age on a daily basis. When a | 7 |
| defendant
is so employed, the court shall order the Clerk of | 8 |
| the Court to send a copy of
the judgment of conviction or order | 9 |
| of supervision or probation to the
defendant's employer by | 10 |
| certified mail.
If the employer of the defendant is a school, | 11 |
| the Clerk of the Court shall
direct the mailing of a copy of | 12 |
| the judgment of conviction or order of
supervision or probation | 13 |
| to the appropriate regional superintendent of schools.
The | 14 |
| regional superintendent of schools shall notify the State Board | 15 |
| of
Education of any notification under this subsection.
| 16 |
| (j-5) A defendant at least 17 years of age who is convicted | 17 |
| of a felony and
who has not been previously convicted of a | 18 |
| misdemeanor or felony and who is
sentenced to a term of | 19 |
| imprisonment in the Illinois Department of Corrections
shall as | 20 |
| a condition of his or her sentence be required by the court to | 21 |
| attend
educational courses designed to prepare the defendant | 22 |
| for a high school diploma
and to work toward a high school | 23 |
| diploma or to work toward passing the high
school level Test of | 24 |
| General Educational Development (GED) or to work toward
| 25 |
| completing a vocational training program offered by the | 26 |
| Department of
Corrections. If a defendant fails to complete the |
|
|
|
09500SB0697sam002 |
- 32 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| educational training
required by his or her sentence during the | 2 |
| term of incarceration, the Prisoner
Review Board shall, as a | 3 |
| condition of mandatory supervised release, require the
| 4 |
| defendant, at his or her own expense, to pursue a course of | 5 |
| study toward a high
school diploma or passage of the GED test. | 6 |
| The Prisoner Review Board shall
revoke the mandatory supervised | 7 |
| release of a defendant who wilfully fails to
comply with this | 8 |
| subsection (j-5) upon his or her release from confinement in a
| 9 |
| penal institution while serving a mandatory supervised release | 10 |
| term; however,
the inability of the defendant after making a | 11 |
| good faith effort to obtain
financial aid or pay for the | 12 |
| educational training shall not be deemed a wilful
failure to | 13 |
| comply. The Prisoner Review Board shall recommit the defendant
| 14 |
| whose mandatory supervised release term has been revoked under | 15 |
| this subsection
(j-5) as provided in Section 3-3-9. This | 16 |
| subsection (j-5) does not apply to a
defendant who has a high | 17 |
| school diploma or has successfully passed the GED
test. This | 18 |
| subsection (j-5) does not apply to a defendant who is | 19 |
| determined by
the court to be developmentally disabled or | 20 |
| otherwise mentally incapable of
completing the educational or | 21 |
| vocational program.
| 22 |
| (k) A court may not impose a sentence or disposition for a
| 23 |
| felony or misdemeanor that requires the defendant to be | 24 |
| implanted or injected
with or to use any form of birth control.
| 25 |
| (l) (A) Except as provided
in paragraph (C) of subsection | 26 |
| (l), whenever a defendant,
who is an alien as defined by |
|
|
|
09500SB0697sam002 |
- 33 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| the Immigration and Nationality Act, is convicted
of any | 2 |
| felony or misdemeanor offense, the court after sentencing | 3 |
| the defendant
may, upon motion of the State's Attorney, | 4 |
| hold sentence in abeyance and remand
the defendant to the | 5 |
| custody of the Attorney General of
the United States or his | 6 |
| or her designated agent to be deported when:
| 7 |
| (1) a final order of deportation has been issued | 8 |
| against the defendant
pursuant to proceedings under | 9 |
| the Immigration and Nationality Act, and
| 10 |
| (2) the deportation of the defendant would not | 11 |
| deprecate the seriousness
of the defendant's conduct | 12 |
| and would not be inconsistent with the ends of
justice.
| 13 |
| Otherwise, the defendant shall be sentenced as | 14 |
| provided in this Chapter V.
| 15 |
| (B) If the defendant has already been sentenced for a | 16 |
| felony or
misdemeanor
offense, or has been placed on | 17 |
| probation under Section 10 of the Cannabis
Control Act,
| 18 |
| Section 410 of the Illinois Controlled Substances Act, or | 19 |
| Section 70 of the Methamphetamine Control and Community | 20 |
| Protection Act, the court
may, upon motion of the State's | 21 |
| Attorney to suspend the
sentence imposed, commit the | 22 |
| defendant to the custody of the Attorney General
of the | 23 |
| United States or his or her designated agent when:
| 24 |
| (1) a final order of deportation has been issued | 25 |
| against the defendant
pursuant to proceedings under | 26 |
| the Immigration and Nationality Act, and
|
|
|
|
09500SB0697sam002 |
- 34 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| (2) the deportation of the defendant would not | 2 |
| deprecate the seriousness
of the defendant's conduct | 3 |
| and would not be inconsistent with the ends of
justice.
| 4 |
| (C) This subsection (l) does not apply to offenders who | 5 |
| are subject to the
provisions of paragraph (2) of | 6 |
| subsection (a) of Section 3-6-3.
| 7 |
| (D) Upon motion of the State's Attorney, if a defendant | 8 |
| sentenced under
this Section returns to the jurisdiction of | 9 |
| the United States, the defendant
shall be recommitted to | 10 |
| the custody of the county from which he or she was
| 11 |
| sentenced.
Thereafter, the defendant shall be brought | 12 |
| before the sentencing court, which
may impose any sentence | 13 |
| that was available under Section 5-5-3 at the time of
| 14 |
| initial sentencing. In addition, the defendant shall not be | 15 |
| eligible for
additional good conduct credit for | 16 |
| meritorious service as provided under
Section 3-6-6.
| 17 |
| (m) A person convicted of criminal defacement of property | 18 |
| under Section
21-1.3 of the Criminal Code of 1961, in which the | 19 |
| property damage exceeds $300
and the property damaged is a | 20 |
| school building, shall be ordered to perform
community service | 21 |
| that may include cleanup, removal, or painting over the
| 22 |
| defacement.
| 23 |
| (n) The court may sentence a person convicted of a | 24 |
| violation of Section
12-19, 12-21, or 16-1.3 of the Criminal | 25 |
| Code of 1961 (i) to an impact
incarceration program if the | 26 |
| person is otherwise eligible for that program
under Section |
|
|
|
09500SB0697sam002 |
- 35 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| 5-8-1.1, (ii) to community service, or (iii) if the person is | 2 |
| an
addict or alcoholic, as defined in the Alcoholism and Other | 3 |
| Drug Abuse and
Dependency Act, to a substance or alcohol abuse | 4 |
| program licensed under that
Act. | 5 |
| (o) Whenever a person is convicted of a sex offense as | 6 |
| defined in Section 2 of the Sex Offender Registration Act, the | 7 |
| defendant's driver's license or permit shall be subject to | 8 |
| renewal on an annual basis in accordance with the provisions of | 9 |
| license renewal established by the Secretary of State.
| 10 |
| (Source: P.A. 93-44, eff. 7-1-03; 93-156, eff. 1-1-04; 93-169, | 11 |
| eff. 7-10-03; 93-301, eff. 1-1-04; 93-419, eff. 1-1-04; 93-546, | 12 |
| eff. 1-1-04; 93-694, eff. 7-9-04; 93-782, eff. 1-1-05; 93-800, | 13 |
| eff. 1-1-05; 93-1014, eff. 1-1-05; 94-72, eff. 1-1-06; 94-556, | 14 |
| eff. 9-11-05; 94-993, eff. 1-1-07; 94-1035, eff. 7-1-07; | 15 |
| revised 8-28-06.)
| 16 |
| Section 15. The Sex Offender Registration Act is amended by | 17 |
| changing Section 2 as follows:
| 18 |
| (730 ILCS 150/2) (from Ch. 38, par. 222)
| 19 |
| Sec. 2. Definitions.
| 20 |
| (A) As used in this Article, "sex offender" means any | 21 |
| person who is:
| 22 |
| (1) charged pursuant to Illinois law, or any | 23 |
| substantially similar
federal, Uniform Code of Military | 24 |
| Justice, sister state, or foreign country
law,
with a sex |
|
|
|
09500SB0697sam002 |
- 36 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| offense set forth
in subsection (B) of this Section or the | 2 |
| attempt to commit an included sex
offense, and:
| 3 |
| (a) is convicted of such offense or an attempt to | 4 |
| commit such offense;
or
| 5 |
| (b) is found not guilty by reason of insanity of | 6 |
| such offense or an
attempt to commit such offense; or
| 7 |
| (c) is found not guilty by reason of insanity | 8 |
| pursuant to Section
104-25(c) of the Code of Criminal | 9 |
| Procedure of 1963 of such offense or an
attempt to | 10 |
| commit such offense; or
| 11 |
| (d) is the subject of a finding not resulting in an | 12 |
| acquittal at a
hearing conducted pursuant to Section | 13 |
| 104-25(a) of the Code of Criminal
Procedure of 1963 for | 14 |
| the alleged commission or attempted commission of such
| 15 |
| offense; or
| 16 |
| (e) is found not guilty by reason of insanity | 17 |
| following a hearing
conducted pursuant to a federal, | 18 |
| Uniform Code of Military Justice, sister
state, or | 19 |
| foreign country law
substantially similar to Section | 20 |
| 104-25(c) of the Code of Criminal Procedure
of 1963 of | 21 |
| such offense or of the attempted commission of such | 22 |
| offense; or
| 23 |
| (f) is the subject of a finding not resulting in an | 24 |
| acquittal at a
hearing conducted pursuant to a federal, | 25 |
| Uniform Code of Military Justice,
sister state, or | 26 |
| foreign country law
substantially similar to Section |
|
|
|
09500SB0697sam002 |
- 37 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| 104-25(a) of the Code of Criminal Procedure
of 1963 for | 2 |
| the alleged violation or attempted commission of such | 3 |
| offense;
or
| 4 |
| (2) certified as a sexually dangerous person pursuant | 5 |
| to the Illinois
Sexually Dangerous Persons Act, or any | 6 |
| substantially similar federal, Uniform
Code of Military | 7 |
| Justice, sister
state, or foreign country law; or
| 8 |
| (3) subject to the provisions of Section 2 of the | 9 |
| Interstate
Agreements on Sexually Dangerous Persons Act; | 10 |
| or
| 11 |
| (4) found to be a sexually violent person pursuant to | 12 |
| the Sexually
Violent Persons Commitment Act or any | 13 |
| substantially similar federal, Uniform
Code of Military | 14 |
| Justice, sister
state, or foreign country law; or
| 15 |
| (5) adjudicated a juvenile delinquent as the result of | 16 |
| committing or
attempting to commit an act which, if | 17 |
| committed by an adult, would constitute
any of the offenses | 18 |
| specified in item (B), (C), or (C-5) of this Section or a
| 19 |
| violation of any substantially similar federal, Uniform | 20 |
| Code of Military
Justice, sister state, or foreign
country | 21 |
| law, or found guilty under Article V of the Juvenile Court | 22 |
| Act of 1987
of committing or attempting to commit an act | 23 |
| which, if committed by an adult,
would constitute any of | 24 |
| the offenses specified in item (B), (C), or (C-5) of
this | 25 |
| Section or a violation of any substantially similar | 26 |
| federal, Uniform Code
of Military Justice, sister state,
or |
|
|
|
09500SB0697sam002 |
- 38 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| foreign country law.
| 2 |
| Convictions that result from or are connected with the same | 3 |
| act, or result
from offenses committed at the same time, shall | 4 |
| be counted for the purpose of
this Article as one conviction. | 5 |
| Any conviction set aside pursuant to law is
not a conviction | 6 |
| for purposes of this Article.
| 7 |
|
For purposes of this Section, "convicted" shall have the | 8 |
| same meaning as
"adjudicated". For the purposes of this | 9 |
| Article, a person who is defined as a sex offender as a result | 10 |
| of being adjudicated a juvenile delinquent under paragraph (5) | 11 |
| of this subsection (A) upon attaining 17 years of age shall be | 12 |
| considered as having committed the sex offense on or after the | 13 |
| sex offender's 17th birthday. Registration of juveniles upon | 14 |
| attaining 17 years of age shall not extend the original | 15 |
| registration of 10 years from the date of conviction.
| 16 |
| (B) As used in this Article, "sex offense" means:
| 17 |
| (1) A violation of any of the following Sections of the | 18 |
| Criminal Code of
1961:
| 19 |
| 11-20.1 (child pornography),
| 20 |
| 11-20.3 (aggravated child pornography),
| 21 |
| 11-6 (indecent solicitation of a child),
| 22 |
| 11-9.1 (sexual exploitation of a child),
| 23 |
| 11-9.2 (custodial sexual misconduct),
| 24 |
| 11-9.5 (sexual misconduct with a person with a | 25 |
| disability),
| 26 |
| 11-15.1 (soliciting for a juvenile prostitute),
|
|
|
|
09500SB0697sam002 |
- 39 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| 11-18.1 (patronizing a juvenile prostitute),
| 2 |
| 11-17.1 (keeping a place of juvenile | 3 |
| prostitution),
| 4 |
| 11-19.1 (juvenile pimping),
| 5 |
| 11-19.2 (exploitation of a child),
| 6 |
| 12-13 (criminal sexual assault),
| 7 |
| 12-14 (aggravated criminal sexual assault),
| 8 |
| 12-14.1 (predatory criminal sexual assault of a | 9 |
| child),
| 10 |
| 12-15 (criminal sexual abuse),
| 11 |
| 12-16 (aggravated criminal sexual abuse),
| 12 |
| 12-33 (ritualized abuse of a child).
| 13 |
| An attempt to commit any of these offenses.
| 14 |
| (1.5)
A violation of any of the following Sections of | 15 |
| the
Criminal Code of 1961, when the victim is a person | 16 |
| under 18 years of age, the
defendant is not a parent of the | 17 |
| victim, the offense was sexually motivated as defined in | 18 |
| Section 10 of the Sex Offender Management Board Act, and | 19 |
| the offense was committed on or
after January 1, 1996:
| 20 |
| 10-1 (kidnapping),
| 21 |
| 10-2 (aggravated kidnapping),
| 22 |
| 10-3 (unlawful restraint),
| 23 |
| 10-3.1 (aggravated unlawful restraint).
| 24 |
| (1.6)
First degree murder under Section 9-1 of the | 25 |
| Criminal Code of 1961,
when the victim was a person under | 26 |
| 18 years of age and the defendant was at least
17 years of |
|
|
|
09500SB0697sam002 |
- 40 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| age at the time of the commission of the offense, provided | 2 |
| the offense was sexually motivated as defined in Section 10 | 3 |
| of the Sex Offender Management Board Act.
| 4 |
| (1.7) (Blank).
| 5 |
| (1.8) A violation or attempted violation of Section | 6 |
| 11-11 (sexual
relations within families) of the Criminal | 7 |
| Code of 1961, and the offense was committed on or after
| 8 |
| June 1, 1997.
| 9 |
| (1.9) Child abduction under paragraph (10) of | 10 |
| subsection
(b) of Section 10-5 of the Criminal Code of 1961 | 11 |
| committed by luring or
attempting to lure a child under the | 12 |
| age of 16 into a motor vehicle, building,
house trailer, or | 13 |
| dwelling place without the consent of the parent or lawful
| 14 |
| custodian of the child for other than a lawful purpose and | 15 |
| the offense was
committed on or after January 1, 1998, | 16 |
| provided the offense was sexually motivated as defined in | 17 |
| Section 10 of the Sex Offender Management Board Act.
| 18 |
| (1.10) A violation or attempted violation of any of the | 19 |
| following Sections
of the Criminal Code of 1961 when the | 20 |
| offense was committed on or after July
1, 1999:
| 21 |
| 10-4 (forcible detention, if the victim is under 18 | 22 |
| years of age), provided the offense was sexually | 23 |
| motivated as defined in Section 10 of the Sex Offender | 24 |
| Management Board Act,
| 25 |
| 11-6.5 (indecent solicitation of an adult),
| 26 |
| 11-15 (soliciting for a prostitute, if the victim |
|
|
|
09500SB0697sam002 |
- 41 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| is under 18 years
of age),
| 2 |
| 11-16 (pandering, if the victim is under 18 years | 3 |
| of age),
| 4 |
| 11-18 (patronizing a prostitute, if the victim is | 5 |
| under 18 years
of age),
| 6 |
| 11-19 (pimping, if the victim is under 18 years of | 7 |
| age).
| 8 |
| (1.11) A violation or attempted violation of any of the | 9 |
| following
Sections of the Criminal Code of 1961 when the | 10 |
| offense was committed on or
after August 22, 2002:
| 11 |
| 11-9 (public indecency for a third or subsequent | 12 |
| conviction).
| 13 |
| (1.12) A violation or attempted violation of Section
| 14 |
| 5.1 of the Wrongs to Children Act (permitting sexual abuse) | 15 |
| when the
offense was committed on or after August 22, 2002.
| 16 |
| (2) A violation of any former law of this State | 17 |
| substantially equivalent
to any offense listed in | 18 |
| subsection (B) of this Section.
| 19 |
| (C) A conviction for an offense of federal law, Uniform | 20 |
| Code of Military
Justice, or the law of another state
or a | 21 |
| foreign country that is substantially equivalent to any offense | 22 |
| listed
in subsections (B), (C), and (E) of this Section shall
| 23 |
| constitute a
conviction for the purpose
of this Article. A | 24 |
| finding or adjudication as a sexually dangerous person
or a | 25 |
| sexually violent person under any federal law, Uniform Code of | 26 |
| Military
Justice, or the law of another state or
foreign |
|
|
|
09500SB0697sam002 |
- 42 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| country that is substantially equivalent to the Sexually | 2 |
| Dangerous
Persons Act or the Sexually Violent Persons | 3 |
| Commitment Act shall constitute an
adjudication for the | 4 |
| purposes of this Article.
| 5 |
| (C-5) A person at least 17 years of age at the time of the | 6 |
| commission of
the offense who is convicted of first degree | 7 |
| murder under Section 9-1 of the
Criminal Code of 1961, against | 8 |
| a person
under 18 years of age, shall be required to register
| 9 |
| for natural life.
A conviction for an offense of federal, | 10 |
| Uniform Code of Military Justice,
sister state, or foreign | 11 |
| country law that is substantially equivalent to any
offense | 12 |
| listed in subsection (C-5) of this Section shall constitute a
| 13 |
| conviction for the purpose of this Article. This subsection | 14 |
| (C-5) applies to a person who committed the offense before June | 15 |
| 1, 1996 only if the person is incarcerated in an Illinois | 16 |
| Department of Corrections facility on August 20, 2004 (the | 17 |
| effective date of Public Act 93-977).
| 18 |
| (D) As used in this Article, "law enforcement agency having | 19 |
| jurisdiction"
means the Chief of Police in each of the | 20 |
| municipalities in which the sex offender
expects to reside, | 21 |
| work, or attend school (1) upon his or her discharge,
parole or | 22 |
| release or
(2) during the service of his or her sentence of | 23 |
| probation or conditional
discharge, or the Sheriff of the | 24 |
| county, in the event no Police Chief exists
or if the offender | 25 |
| intends to reside, work, or attend school in an
unincorporated | 26 |
| area.
"Law enforcement agency having jurisdiction" includes |
|
|
|
09500SB0697sam002 |
- 43 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| the location where
out-of-state students attend school and | 2 |
| where out-of-state employees are
employed or are otherwise | 3 |
| required to register.
| 4 |
| (D-1) As used in this Article, "supervising officer" means | 5 |
| the assigned Illinois Department of Corrections parole agent or | 6 |
| county probation officer. | 7 |
| (E) As used in this Article, "sexual predator" means any | 8 |
| person who,
after July 1, 1999, is:
| 9 |
| (1) Convicted for an offense of federal, Uniform Code | 10 |
| of Military
Justice, sister state, or foreign country law | 11 |
| that is substantially equivalent
to any offense listed in | 12 |
| subsection (E) of this Section shall constitute a
| 13 |
| conviction for the purpose of this Article.
Convicted of a | 14 |
| violation or attempted violation of any of the following
| 15 |
| Sections of the
Criminal Code of 1961, if the conviction | 16 |
| occurred after July
1, 1999:
| 17 |
| 11-17.1 (keeping a place of juvenile | 18 |
| prostitution),
| 19 |
| 11-19.1 (juvenile pimping),
| 20 |
| 11-19.2 (exploitation of a child),
| 21 |
| 11-20.1 (child pornography),
| 22 |
| 12-13 (criminal sexual assault),
| 23 |
| 12-14 (aggravated criminal sexual assault),
| 24 |
| 12-14.1 (predatory criminal sexual assault of a | 25 |
| child),
| 26 |
| 12-16 (aggravated criminal sexual abuse),
|
|
|
|
09500SB0697sam002 |
- 44 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| 12-33 (ritualized abuse of a child); or
| 2 |
| (2) (blank); or
| 3 |
| (3) certified as a sexually dangerous person pursuant | 4 |
| to the Sexually
Dangerous Persons Act or any substantially | 5 |
| similar federal, Uniform Code of
Military Justice, sister | 6 |
| state, or
foreign country law; or
| 7 |
| (4) found to be a sexually violent person pursuant to | 8 |
| the Sexually Violent
Persons Commitment Act or any | 9 |
| substantially similar federal, Uniform Code of
Military | 10 |
| Justice, sister state, or
foreign country law; or
| 11 |
| (5) convicted of a second or subsequent offense which | 12 |
| requires
registration pursuant to this Act. The conviction | 13 |
| for the second or subsequent
offense must have occurred | 14 |
| after July 1, 1999. For purposes of this paragraph
(5), | 15 |
| "convicted" shall include a conviction under any
| 16 |
| substantially similar
Illinois, federal, Uniform Code of | 17 |
| Military Justice, sister state, or
foreign country law.
| 18 |
| (F) As used in this Article, "out-of-state student" means | 19 |
| any sex
offender, as defined in this Section,
or sexual | 20 |
| predator who is enrolled in Illinois, on a full-time or | 21 |
| part-time
basis, in any public or private educational | 22 |
| institution, including, but not
limited to, any secondary | 23 |
| school, trade or professional institution, or
institution of | 24 |
| higher learning.
| 25 |
| (G) As used in this Article, "out-of-state employee" means | 26 |
| any sex
offender, as defined in this Section,
or sexual |
|
|
|
09500SB0697sam002 |
- 45 - |
LRB095 10951 RLC 34337 a |
|
| 1 |
| predator who works in Illinois, regardless of whether the | 2 |
| individual
receives payment for services performed, for a | 3 |
| period of time of 10 or more days
or for an aggregate period of | 4 |
| time of 30 or more days
during any calendar year.
Persons who | 5 |
| operate motor vehicles in the State accrue one day of | 6 |
| employment
time for any portion of a day spent in Illinois.
| 7 |
| (H) As used in this Article, "school" means any public or | 8 |
| private educational institution, including, but not limited | 9 |
| to, any elementary or secondary school, trade or professional | 10 |
| institution, or institution of higher education. | 11 |
| (I) As used in this Article, "fixed residence" means any | 12 |
| and all places that a sex offender resides for an aggregate | 13 |
| period of time of 5 or more days in a calendar year.
| 14 |
| (Source: P.A. 93-977, eff. 8-20-04; 93-979, eff. 8-20-04; | 15 |
| 94-166, eff. 1-1-06; 94-168, eff. 1-1-06; 94-945, eff. 6-27-06; | 16 |
| 94-1053, eff. 7-24-06; revised 8-3-06.)".
|
|