Illinois General Assembly - Full Text of HB1380
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Full Text of HB1380  103rd General Assembly



State of Illinois
2023 and 2024


Introduced 1/31/2023, by Rep. Kam Buckner


New Act

    Creates the Wrongful Prosecution Commission Act. Creates the Wrongful Prosecution Commission as an independent commission under the Illinois Human Rights Commission for administrative purposes. Defines "claim of wrongful prosecution" as a claim by or on behalf of a living person convicted of a crime in a county of more than 3,000,000 inhabitants asserting that the person was falsely incriminated for the crime and there is credible evidence related to allegations of the use of false evidence to obtain the conviction. Defines other terms. Provides that the Commission shall conduct inquiries into claims of wrongful prosecution. Provides that if the Commission concludes there is sufficient evidence of wrongful prosecution to merit judicial review, the Chair of the Commission shall request that the Chief Judge of the Circuit Court of Cook County assign the case to a trial judge for consideration. Provides that the Act applies to claims of wrongful prosecution filed not later than 5 years after the effective date of the Act. Repeals the Act 10 years after the effective date. Effective immediately.

LRB103 05877 LNS 50898 b





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1    AN ACT concerning wrongful prosecution.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 1. Short title. This Act may be cited as the
5Wrongful Prosecution Commission Act.
6    Section 5. Definitions. As used in this Act:
7    "Claim of wrongful prosecution" means a claim by or on
8behalf of a living person convicted of a crime in a county of
9more than 3,000,000 inhabitants asserting that the person was
10falsely incriminated for the crime and there is credible
11evidence related to allegations of the use of false evidence
12to obtain the conviction.
13    "Commission" means the Wrongful Prosecution Commission
14established by this Act.
15    "Convicted person" means the subject of a claim of
16wrongful prosecution under this Act.
17    "Director" means the Director of the Wrongful Prosecution
19    "Victim" means the victim of the crime, or, if the victim
20of the crime is deceased, the parent, spouse, child, or
21sibling of the deceased victim.
22    Section 10. Purpose of Act. This Act establishes an



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1extraordinary procedure to investigate and determine factual
2claims of wrongful prosecution related to allegations of
3wrongful prosecution that shall require an individual to
4voluntarily waive rights and privileges as described in this
6    Section 15. Commission established.
7    (a) The Wrongful Prosecution Commission is established as
8an independent commission under the Illinois Human Rights
9Commission for administrative purposes.
10    (b) The Illinois Human Rights Commission shall provide
11administrative support to the Commission as needed. The
12Executive Director of the Illinois Human Rights Commission
13shall not reduce or modify the budget of the Illinois Human
14Rights Commission or use funds appropriated to the Illinois
15Human Rights Commission without the approval of the Illinois
16Human Rights Commission.
17    Section 20. Membership; chair; meetings; quorum.
18    (a) The Commission shall consist of 8 voting members as
20        (1) One shall be a retired circuit court judge.
21        (2) One shall be a former prosecuting attorney.
22        (3) One shall be a law school professor.
23        (4) One shall be engaged in the practice of criminal
24    defense law.



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1        (5) Three shall be members of the public who are not
2    attorneys and who are not officers or employees of the
3    judicial branch.
4        (6) One shall be a former public defender.
5    The members of the Commission shall be appointed by the
6Governor, with the advice and consent of the Senate. Members
7may be reappointed for additional terms, as provided under
8Section 25. In making the appointments, the Governor shall
9make a good faith effort to appoint members with different
10perspectives of the justice system. The Governor shall also
11consider geographic location, gender, and racial diversity in
12making the appointments.
13    (b) In the event of scheduling conflicts, conflicts of
14interest, disability, or other disqualification arising in a
15particular case, the Governor shall appoint alternate
16Commission members for the Commission members the Governor has
17appointed to serve. If an alternate member is called upon to
18serve, the alternate member shall vote in the place of and
19otherwise exercise the same powers as the member that the
20alternate member is replacing. The alternate member shall have
21the same qualifications for appointment as the original
23    (c) The retired judge who is appointed as a member under
24subsection (a) shall serve as Chair of the Commission. The
25Commission shall have its initial meeting no later than one
26month after the appointment of a quorum of members of the



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1Commission, at the call of the Chair. The Commission shall
2meet a minimum of once every 6 months and may meet more often
3at the call of the Chair. The Commission shall meet at such
4time and place as designated by the Chair, in accordance with
5the provisions of the Open Meetings Act. Notice of the
6meetings shall be given at such time and manner as provided by
7the rules of the Commission, in accordance with the provisions
8of the Open Meetings Act. A majority of the voting members
9shall constitute a quorum. All Commission votes shall be by
10majority vote of the voting members appointed.
11    Section 25. Terms of members; compensation; expenses.
12    (a) Of the initial members, the appointments under
13paragraphs (3) and (6) of subsection (a) of Section 20 shall be
14for one-year terms, the appointments under paragraphs (1),
15(2), and (4) of subsection (a) of Section 20 shall be for
162-year terms, and the appointments under paragraph (5) of
17subsection (a) of Section 20 shall be for 3-year terms.
18Thereafter, all terms shall be for 3 years. Members of the
19Commission shall serve no more than 2 consecutive 3-year terms
20plus any initial term of less than 3 years. Except as otherwise
21provided by this Act, all terms of members shall begin on
22January 1 and end on December 31.
23    A member serving by virtue of elective or appointive
24office may serve only so long as the member holds the
25respective office. The Chief Judge of the Cook County Circuit



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1Court may remove members for good cause shown. Vacancies
2occurring before the expiration of a term shall be filled in
3the manner provided for the members first appointed.
4    (b) The Commission members shall receive no salary for
5serving, but may be reimbursed for reasonable expenses
6incurred as a result of their duties as members of the
7Commission from funds appropriated by the General Assembly for
8that purpose or from funds obtained from sources other than
9the General Assembly.
10    Section 30. Director and other staff. The Commission
11shall employ a Director. The Director shall be an attorney
12licensed to practice in Illinois at the time of appointment
13and at all times during service as Director. The Director
14shall assist the Commission in developing rules and standards
15for cases accepted for review, coordinate the investigation of
16cases accepted for review, maintain records for all case
17investigations, prepare reports outlining Commission
18investigations and recommendations to the trial court, and
19apply for and accept on behalf of the Commission any funds that
20may become available from government grants, private gifts,
21donations, or bequests from any source.
22    Subject to the approval of the Chair, the Director shall
23employ such other staff and shall contract for services as is
24necessary to assist the Commission in the performance of its
25duties and as funds permit.



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1    The Commission may meet in an area provided by the
2Illinois Human Rights Commission or any other State agency.
3The Illinois Human Rights Commission shall provide, directly
4or through any other State agency, office space for the
5Commission and the Commission staff.
6    Section 35. Duties. The Commission shall have the
7following duties and powers:
8        (1) To establish the criteria and screening process to
9    be used to determine which cases shall be accepted for
10    review.
11        (2) To conduct inquiries into claims of wrongful
12    prosecution.
13        (3) To coordinate the investigation of cases accepted
14    for review.
15        (4) To maintain records for all case investigations.
16        (5) To prepare written reports outlining Commission
17    investigations and recommendations to the trial court at
18    the completion of each inquiry.
19        (6) To apply for and accept any funds that may become
20    available for the Commission's work from government
21    grants, private gifts, donations, or bequests from any
22    source.
23    Section 40. Claims of wrongful prosecution; waiver of
24convicted person's procedural safeguards and privileges;



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1formal inquiry; notification of the crime victim.
2    (a) A claim of wrongful prosecution may be referred to the
3Commission by any court, person, or agency. The Commission
4shall not consider a claim of wrongful prosecution if the
5convicted person is deceased. The determination of whether to
6grant a formal inquiry regarding any other claim of wrongful
7prosecution is in the discretion of the Commission. The
8Commission may informally screen and dismiss a case summarily
9at its discretion.
10    (b) No formal inquiry into a claim of wrongful prosecution
11shall be made by the Commission unless the Director or the
12Director's designee first obtains a signed agreement from the
13convicted person in which the convicted person waives his or
14her procedural safeguards and privileges, including, but not
15limited to, the right against self-incrimination under the
16United States Constitution and the Constitution of the State
17of Illinois, agrees to cooperate with the Commission, and
18agrees to provide full disclosure regarding inquiry
19requirements of the Commission. The waiver under this
20subsection does not apply to matters unrelated to a convicted
21person's claim of wrongful prosecution. The convicted person
22has the right to advice of counsel prior to the execution of
23the agreement and, if a formal inquiry is granted, throughout
24the formal inquiry. If counsel represents the convicted
25person, then the convicted person's counsel must be present at
26the signing of the agreement. If counsel does not represent



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1the convicted person, the Commission Chair shall determine the
2convicted person's indigency status and, if appropriate, enter
3an order for the appointment of counsel for the purpose of
4advising on the agreement.
5    (c) If a formal inquiry regarding a claim of wrongful
6prosecution is granted, the Director shall use all due
7diligence to notify the victim in the case and explain the
8inquiry process. The Commission shall give the victim notice
9that the victim has the right to present his or her views and
10concerns throughout the Commission's investigation.
11    (d) The Commission may use any measure provided in the
12Code of Civil Procedure and the Code of Criminal Procedure of
131963 to obtain information necessary to its inquiry. The
14Commission may also do any of the following: issue subpoenas
15or other process to compel the attendance of witnesses and the
16production of evidence; administer oaths; petition the Circuit
17Court of Cook County or of the original jurisdiction for
18enforcement of process or for other relief; and prescribe its
19own rules of procedure. All challenges with regard to the
20Commission's authority or the Commission's access to evidence,
21including any in camera review, shall be heard by the Circuit
22Court of Cook County.
23    (e) While performing duties for the Commission, the
24Director or the Director's designee may serve subpoenas or
25other process issued by the Commission throughout the State in
26the same manner and with the same effect as an officer



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1authorized to serve process under the laws of this State.
2    (f) All State discovery and disclosure statutes in effect
3at the time of formal inquiry shall be enforceable as if the
4convicted person were currently being tried for the charge for
5which the convicted person is claiming wrongful prosecution.
6    (g) If, at any point during an inquiry, the convicted
7person refuses to comply with requests of the Commission or is
8otherwise deemed to be uncooperative by the Commission, the
9Commission shall discontinue the inquiry.
10    Section 45. Commission proceedings.
11    (a) At the completion of a formal inquiry, all relevant
12evidence shall be presented to the full Commission. As part of
13its proceedings, the Commission may conduct hearings. The
14determination whether to conduct hearings is solely in the
15discretion of the Commission. Any hearing held in accordance
16with this Section shall be a public hearing and shall be held
17subject to the Commission's rules of operation and conducted
18pursuant to the Open Meetings Act.
19    (b) The Director shall use all due diligence to notify the
20victim at least 30 days prior to any proceedings of the full
21Commission held in regard to the victim's case. The Commission
22shall notify the victim that the victim is permitted to attend
23proceedings otherwise closed to the public, subject to any
24limitations imposed by this Act, and subject to paragraph (14)
25of subsection (c) of Section 2 of the Open Meetings Act. If the



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1victim plans to attend proceedings otherwise closed to the
2public, the victim shall notify the Commission at least 10
3days in advance of the proceedings of his or her intent to
4attend. The Commission may close any portion of the
5proceedings to the victim if the victim is to testify and the
6Commission determines that the victim's testimony would be
7materially affected by the victim hearing other testimony at
8the proceeding.
9    (c) After hearing the evidence, the full Commission shall
10vote to establish further case disposition as provided by this
11subsection. All 8 voting members of the Commission shall
12participate in that vote.
13    If 5 or more of the 8 voting members of the Commission
14conclude by a preponderance of the evidence that there is
15sufficient evidence of wrongful prosecution to merit judicial
16review, the case shall be referred to the Chief Judge of the
17Circuit Court of Cook County by filing with the clerk of court
18the opinion of the Commission with supporting findings of
19fact, as well as the record in support of the opinion, with
20service on the State's Attorney in noncapital cases and
21service on both the State's Attorney and Attorney General in
22capital cases.
23    If less than 5 of the 8 voting members of the Commission
24conclude by a preponderance of the evidence that there is
25sufficient evidence of wrongful prosecution to merit judicial
26review, the Commission shall conclude there is insufficient



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1evidence of wrongful prosecution to merit judicial review. The
2Commission shall document that opinion, along with supporting
3findings of fact, and file those documents and supporting
4materials with the court clerk in the circuit of original
5jurisdiction, with a copy to the State's Attorney and the
6chief judge.
7    The Director of the Commission shall use all due diligence
8to immediately notify the victim of the Commission's
9conclusion in a case.
10    (d) Evidence of criminal acts, professional misconduct, or
11other wrongdoing disclosed through formal inquiry or
12Commission proceedings shall be referred to the appropriate
13authority. Evidence favorable to the convicted person
14disclosed through formal inquiry or Commission proceedings
15shall be disclosed to the convicted person and the convicted
16person's counsel, if the convicted person has counsel. The
17Commission shall have the discretion to refer its findings,
18together with the supporting record and evidence, to such
19other parties or entities as the Commission in its discretion
20deems appropriate.
21    (e) All proceedings of the Commission shall be recorded
22and transcribed as part of the record. All Commission member
23votes shall be recorded in the record. All records of the
24Commission shall be confidential until the proceedings before
25the Commission are concluded and a final decision is made by
26the Commission.



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1    Section 50. Judicial review.
2    (a) If the Commission concludes there is sufficient
3evidence of wrongful prosecution to merit judicial review, the
4Chair of the Commission shall request the Chief Judge of the
5Circuit Court of Cook County to assign the case to a trial
6judge for consideration. The court may receive proof by
7affidavits, depositions, oral testimony, or other evidence. In
8its discretion, the court may order the petitioner brought
9before the court for the hearing. Notwithstanding the status
10of any other postconviction proceedings relating to the
11petitioner, if the court finds in favor of the petitioner, it
12shall enter an appropriate order with respect to the judgment
13or sentence in the former proceedings and such supplementary
14orders as to rearraignment, retrial, custody, bail or
15discharge, or for such relief as may be granted under a
16petition for a certificate of innocence, as may be necessary
17and proper.
18    (b) The State's Attorney or the State's Attorney's
19designee shall represent the State at the hearing before the
20assigned judge.
21    Section 55. Further review of decision by Commission;
22postconviction relief.
23    (a) Unless otherwise authorized by this Act, the decision
24of the Commission is final and subject to review under the



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1Administrative Review Law, and shall be overturned only if the
2court finds that the decision is against the manifest weight
3of the evidence.
4    (b) A claim of wrongful prosecution brought before the
5Commission shall not adversely affect the convicted person's
6right to other postconviction relief.
7    Section 60. Report. Beginning January 1, 2024, and
8annually thereafter, the Wrongful Prosecution Commission shall
9report on its activities to the General Assembly and the
10Governor. The report may contain recommendations of any needed
11legislative changes related to the activities of the
12Commission. The report shall recommend the funding needed by
13the Commission, the State's Attorneys, and the Illinois State
14Police in order to meet their responsibilities under this Act.
15Recommendations concerning the State's Attorneys or the
16Illinois State Police shall be made only after consultations
17with the Illinois State's Attorneys Association, the Illinois
18State Police, and the Attorney General.
19    Section 65. Appointment period. The initial members of the
20Wrongful Prosecution Commission shall be appointed not later
21than 3 months after the effective date of this Act. No claims
22of wrongful prosecution may be filed with the Commission until
23a quorum of members has been appointed.



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1    Section 70. Filing of claims. This Act applies to claims
2of wrongful prosecution filed not later than 5 years after the
3effective date of this Act.
4    Section 75. Repeal. This Act is repealed 10 years after
5the effective date of this Act.
6    Section 99. Effective date. This Act takes effect upon
7becoming law.