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90_HB3158 720 ILCS 5/9-1 from Ch. 38, par. 9-1 730 ILCS 5/3-6-3 from Ch. 38, par. 1003-6-3 730 ILCS 5/5-4-1 from Ch. 38, par. 1005-4-1 730 ILCS 5/5-8-1 from Ch. 38, par. 1005-8-1 Amends the Criminal Code of 1961. Provides that it is an aggravating factor for first degree murder that the murder was committed as a result of certain streetgang related criminal activity. Amends the Unified Code of Corrections. Provides that a prisoner serving a sentence for a forcible felony when the court has made and entered a finding that the conduct leading to the conviction of the forcible felony was streetgang related criminal activity shall receive no more than 4.5 days of good conduct credit for each month of his or her sentence of imprisonment. Provides that the penalty for certain first degree murders that were the result of certain streetgang related criminal activity, if the death penalty was not imposed, is a term of imprisonment of not less than 30 years and not more than 80 years. LRB9010780RCks LRB9010780RCks 1 AN ACT in relation to streetgangs, amending named Acts. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 4 Section 5. The Criminal Code of 1961 is amended by 5 changing Section 9-1 as follows: 6 (720 ILCS 5/9-1) (from Ch. 38, par. 9-1) 7 Sec. 9-1. First degree Murder - Death penalties - 8 Exceptions - Separate Hearings - Proof - Findings - Appellate 9 procedures - Reversals. 10 (a) A person who kills an individual without lawful 11 justification commits first degree murder if, in performing 12 the acts which cause the death: 13 (1) he either intends to kill or do great bodily 14 harm to that individual or another, or knows that such 15 acts will cause death to that individual or another; or 16 (2) he knows that such acts create a strong 17 probability of death or great bodily harm to that 18 individual or another; or 19 (3) he is attempting or committing a forcible 20 felony other than second degree murder. 21 (b) Aggravating Factors. A defendant who at the time of 22 the commission of the offense has attained the age of 18 or 23 more and who has been found guilty of first degree murder may 24 be sentenced to death if: 25 (1) the murdered individual was a peace officer or 26 fireman killed in the course of performing his official 27 duties, to prevent the performance of his official 28 duties, or in retaliation for performing his official 29 duties, and the defendant knew or should have known that 30 the murdered individual was a peace officer or fireman; 31 or -2- LRB9010780RCks 1 (2) the murdered individual was an employee of an 2 institution or facility of the Department of Corrections, 3 or any similar local correctional agency, killed in the 4 course of performing his official duties, to prevent the 5 performance of his official duties, or in retaliation for 6 performing his official duties, or the murdered 7 individual was an inmate at such institution or facility 8 and was killed on the grounds thereof, or the murdered 9 individual was otherwise present in such institution or 10 facility with the knowledge and approval of the chief 11 administrative officer thereof; or 12 (3) the defendant has been convicted of murdering 13 two or more individuals under subsection (a) of this 14 Section or under any law of the United States or of any 15 state which is substantially similar to subsection (a) of 16 this Section regardless of whether the deaths occurred 17 as the result of the same act or of several related or 18 unrelated acts so long as the deaths were the result of 19 either an intent to kill more than one person or of 20 separate acts which the defendant knew would cause death 21 or create a strong probability of death or great bodily 22 harm to the murdered individual or another; or 23 (4) the murdered individual was killed as a result 24 of the hijacking of an airplane, train, ship, bus or 25 other public conveyance; or 26 (5) the defendant committed the murder pursuant to 27 a contract, agreement or understanding by which he was to 28 receive money or anything of value in return for 29 committing the murder or procured another to commit the 30 murder for money or anything of value; or 31 (6) the murdered individual was killed in the 32 course of another felony if: 33 (a) the murdered individual: 34 (i) was actually killed by the defendant, -3- LRB9010780RCks 1 or 2 (ii) received physical injuries 3 personally inflicted by the defendant 4 substantially contemporaneously with physical 5 injuries caused by one or more persons for 6 whose conduct the defendant is legally 7 accountable under Section 5-2 of this Code, and 8 the physical injuries inflicted by either the 9 defendant or the other person or persons for 10 whose conduct he is legally accountable caused 11 the death of the murdered individual; and 12 (b) in performing the acts which caused the 13 death of the murdered individual or which resulted 14 in physical injuries personally inflicted by the 15 defendant on the murdered individual under the 16 circumstances of subdivision (ii) of subparagraph 17 (a) of paragraph (6) of subsection (b) of this 18 Section, the defendant acted with the intent to kill 19 the murdered individual or with the knowledge that 20 his acts created a strong probability of death or 21 great bodily harm to the murdered individual or 22 another; and 23 (c) the other felony was one of the following: 24 armed robbery, armed violence, robbery, predatory 25 criminal sexual assault of a child, aggravated 26 criminal sexual assault, aggravated kidnapping, 27 aggravated vehicular hijacking, forcible detention, 28 arson, aggravated arson, aggravated stalking, 29 burglary, residential burglary, home invasion, 30 calculated criminal drug conspiracy as defined in 31 Section 405 of the Illinois Controlled Substances 32 Act, streetgang criminal drug conspiracy as defined 33 in Section 405.2 of the Illinois Controlled 34 Substances Act, or the attempt to commit any of the -4- LRB9010780RCks 1 felonies listed in this subsection (c); or 2 (7) the murdered individual was under 12 years of 3 age and the death resulted from exceptionally brutal or 4 heinous behavior indicative of wanton cruelty; or 5 (8) the defendant committed the murder with intent 6 to prevent the murdered individual from testifying in any 7 criminal prosecution or giving material assistance to the 8 State in any investigation or prosecution, either against 9 the defendant or another; or the defendant committed the 10 murder because the murdered individual was a witness in 11 any prosecution or gave material assistance to the State 12 in any investigation or prosecution, either against the 13 defendant or another; or 14 (9) the defendant, while committing an offense 15 punishable under Sections 401, 401.1, 401.2, 405, 405.2, 16 407 or 407.1 or subsection (b) of Section 404 of the 17 Illinois Controlled Substances Act, or while engaged in a 18 conspiracy or solicitation to commit such offense, 19 intentionally killed an individual or counseled, 20 commanded, induced, procured or caused the intentional 21 killing of the murdered individual; or 22 (10) the defendant was incarcerated in an 23 institution or facility of the Department of Corrections 24 at the time of the murder, and while committing an 25 offense punishable as a felony under Illinois law, or 26 while engaged in a conspiracy or solicitation to commit 27 such offense, intentionally killed an individual or 28 counseled, commanded, induced, procured or caused the 29 intentional killing of the murdered individual; or 30 (11) the murder was committed in a cold, calculated 31 and premeditated manner pursuant to a preconceived plan, 32 scheme or design to take a human life by unlawful means, 33 and the conduct of the defendant created a reasonable 34 expectation that the death of a human being would result -5- LRB9010780RCks 1 therefrom; or 2 (12) the murdered individual was an emergency 3 medical technician - ambulance, emergency medical 4 technician - intermediate, emergency medical technician - 5 paramedic, ambulance driver, or other medical assistance 6 or first aid personnel, employed by a municipality or 7 other governmental unit, killed in the course of 8 performing his official duties, to prevent the 9 performance of his official duties, or in retaliation for 10 performing his official duties, and the defendant knew or 11 should have known that the murdered individual was an 12 emergency medical technician - ambulance, emergency 13 medical technician - intermediate, emergency medical 14 technician - paramedic, ambulance driver, or other 15 medical assistance or first aid personnel; or 16 (13) the defendant was a principal administrator, 17 organizer, or leader of a calculated criminal drug 18 conspiracy consisting of a hierarchical position of 19 authority superior to that of all other members of the 20 conspiracy, and the defendant counseled, commanded, 21 induced, procured, or caused the intentional killing of 22 the murdered person; or 23 (14) the murder was intentional and involved the 24 infliction of torture. For the purpose of this Section 25 torture means the infliction of or subjection to extreme 26 physical pain, motivated by an intent to increase or 27 prolong the pain, suffering or agony of the victim; or 28 (15) the murder was committed as a result of the 29 intentional discharge of a firearm by the defendant from 30 a motor vehicle and the victim was not present within the 31 motor vehicle; or 32 (16) the murdered individual was 60 years of age or 33 older and the death resulted from exceptionally brutal or 34 heinous behavior indicative of wanton cruelty; or -6- LRB9010780RCks 1 (17) the murdered individual was a disabled person 2 and the defendant knew or should have known that the 3 murdered individual was disabled. For purposes of this 4 paragraph (17), "disabled person" means a person who 5 suffers from a permanent physical or mental impairment 6 resulting from disease, an injury, a functional disorder, 7 or a congenital condition that renders the person 8 incapable of adequately providing for his or her own 9 health or personal care; or.10 (18) the murder was committed as a result of 11 streetgang related criminal activity with the intent: 12 (A) to increase the gang's size, membership, 13 prestige, dominance, or control in any geographical 14 area, or 15 (B) to exact revenge or retribution for any 16 gang or member of the gang, or 17 (C) to obstruct justice or intimidate or 18 eliminate any witness against the gang or any member 19 of the gang, or 20 (D) to directly or indirectly cause any 21 benefit, aggrandizement, gain, profit, or other 22 advantage to or for the gang, its reputation, 23 influence, or membership. 24 For the purpose of this Section, "streetgang" or "gang" 25 has the meaning ascribed to it by Section 10 of the Illinois 26 Streetgang Terrorism Omnibus Prevention Act. 27 (c) Consideration of factors in Aggravation and 28 Mitigation. 29 The court shall consider, or shall instruct the jury to 30 consider any aggravating and any mitigating factors which are 31 relevant to the imposition of the death penalty. Aggravating 32 factors may include but need not be limited to those factors 33 set forth in subsection (b). Mitigating factors may include 34 but need not be limited to the following: -7- LRB9010780RCks 1 (1) the defendant has no significant history of 2 prior criminal activity; 3 (2) the murder was committed while the defendant 4 was under the influence of extreme mental or emotional 5 disturbance, although not such as to constitute a defense 6 to prosecution; 7 (3) the murdered individual was a participant in 8 the defendant's homicidal conduct or consented to the 9 homicidal act; 10 (4) the defendant acted under the compulsion of 11 threat or menace of the imminent infliction of death or 12 great bodily harm; 13 (5) the defendant was not personally present during 14 commission of the act or acts causing death. 15 (d) Separate sentencing hearing. 16 Where requested by the State, the court shall conduct a 17 separate sentencing proceeding to determine the existence of 18 factors set forth in subsection (b) and to consider any 19 aggravating or mitigating factors as indicated in subsection 20 (c). The proceeding shall be conducted: 21 (1) before the jury that determined the defendant's 22 guilt; or 23 (2) before a jury impanelled for the purpose of the 24 proceeding if: 25 A. the defendant was convicted upon a plea of 26 guilty; or 27 B. the defendant was convicted after a trial 28 before the court sitting without a jury; or 29 C. the court for good cause shown discharges 30 the jury that determined the defendant's guilt; or 31 (3) before the court alone if the defendant waives 32 a jury for the separate proceeding. 33 (e) Evidence and Argument. 34 During the proceeding any information relevant to any of -8- LRB9010780RCks 1 the factors set forth in subsection (b) may be presented by 2 either the State or the defendant under the rules governing 3 the admission of evidence at criminal trials. Any 4 information relevant to any additional aggravating factors or 5 any mitigating factors indicated in subsection (c) may be 6 presented by the State or defendant regardless of its 7 admissibility under the rules governing the admission of 8 evidence at criminal trials. The State and the defendant 9 shall be given fair opportunity to rebut any information 10 received at the hearing. 11 (f) Proof. 12 The burden of proof of establishing the existence of any 13 of the factors set forth in subsection (b) is on the State 14 and shall not be satisfied unless established beyond a 15 reasonable doubt. 16 (g) Procedure - Jury. 17 If at the separate sentencing proceeding the jury finds 18 that none of the factors set forth in subsection (b) exists, 19 the court shall sentence the defendant to a term of 20 imprisonment under Chapter V of the Unified Code of 21 Corrections. If there is a unanimous finding by the jury 22 that one or more of the factors set forth in subsection (b) 23 exist, the jury shall consider aggravating and mitigating 24 factors as instructed by the court and shall determine 25 whether the sentence of death shall be imposed. If the jury 26 determines unanimously that there are no mitigating factors 27 sufficient to preclude the imposition of the death sentence, 28 the court shall sentence the defendant to death. 29 Unless the jury unanimously finds that there are no 30 mitigating factors sufficient to preclude the imposition of 31 the death sentence the court shall sentence the defendant to 32 a term of imprisonment under Chapter V of the Unified Code of 33 Corrections. 34 (h) Procedure - No Jury. -9- LRB9010780RCks 1 In a proceeding before the court alone, if the court 2 finds that none of the factors found in subsection (b) 3 exists, the court shall sentence the defendant to a term of 4 imprisonment under Chapter V of the Unified Code of 5 Corrections. 6 If the Court determines that one or more of the factors 7 set forth in subsection (b) exists, the Court shall consider 8 any aggravating and mitigating factors as indicated in 9 subsection (c). If the Court determines that there are no 10 mitigating factors sufficient to preclude the imposition of 11 the death sentence, the Court shall sentence the defendant to 12 death. 13 Unless the court finds that there are no mitigating 14 factors sufficient to preclude the imposition of the sentence 15 of death, the court shall sentence the defendant to a term of 16 imprisonment under Chapter V of the Unified Code of 17 Corrections. 18 (i) Appellate Procedure. 19 The conviction and sentence of death shall be subject to 20 automatic review by the Supreme Court. Such review shall be 21 in accordance with rules promulgated by the Supreme Court. 22 (j) Disposition of reversed death sentence. 23 In the event that the death penalty in this Act is held 24 to be unconstitutional by the Supreme Court of the United 25 States or of the State of Illinois, any person convicted of 26 first degree murder shall be sentenced by the court to a term 27 of imprisonment under Chapter V of the Unified Code of 28 Corrections. 29 In the event that any death sentence pursuant to the 30 sentencing provisions of this Section is declared 31 unconstitutional by the Supreme Court of the United States or 32 of the State of Illinois, the court having jurisdiction over 33 a person previously sentenced to death shall cause the 34 defendant to be brought before the court, and the court shall -10- LRB9010780RCks 1 sentence the defendant to a term of imprisonment under 2 Chapter V of the Unified Code of Corrections. 3 (Source: P.A. 89-235, eff. 8-4-95; 89-428, eff. 12-13-95; 4 89-462, eff. 5-29-96; 89-498, eff. 6-27-96; 90-213, eff. 5 1-1-98.) 6 Section 10. The Unified Code of Corrections is amended 7 by changing Sections 3-6-3, 5-4-1, and 5-8-1 as follows: 8 (730 ILCS 5/3-6-3) (from Ch. 38, par. 1003-6-3) 9 Sec. 3-6-3. Rules and Regulations for Early Release. 10 (a)(1) The Department of Corrections shall prescribe 11 rules and regulations for the early release on account of 12 good conduct of persons committed to the Department which 13 shall be subject to review by the Prisoner Review Board. 14 (2) The rules and regulations on early release 15 shall provide, with respect to offenses enumerated in 16 subdivisions (a) (2), (i), ii, and (iii) committed on or 17 after the effective date of this amendatory Act of 1995 18 and with respect to offenses enumerated in subdivision 19 (a) (2) (iv) committed on or after the effective date of 20 this amendatory Act of 1998, the following: 21 (i) that a prisoner who is serving a term of 22 imprisonment for first degree murder shall receive 23 no good conduct credit and shall serve the entire 24 sentence imposed by the court; 25 (ii) that a prisoner serving a sentence for 26 attempt to commit first degree murder, solicitation 27 of murder, solicitation of murder for hire, 28 intentional homicide of an unborn child, predatory 29 criminal sexual assault of a child, aggravated 30 criminal sexual assault, criminal sexual assault, 31 aggravated kidnapping, aggravated battery with a 32 firearm, heinous battery, aggravated battery of a -11- LRB9010780RCks 1 senior citizen, or aggravated battery of a child 2 shall receive no more than 4.5 days of good conduct 3 credit for each month of his or her sentence of 4 imprisonment;and5 (iii) that a prisoner serving a sentence for 6 home invasion, armed robbery, aggravated vehicular 7 hijacking, aggravated discharge of a firearm, or 8 armed violence with a category I weapon or category 9 II weapon, when the court has made and entered a 10 finding, pursuant to subsection (c-1) of Section 11 5-4-1 of this Code, that the conduct leading to 12 conviction for the enumerated offense resulted in 13 great bodily harm to a victim, shall receive no more 14 than 4.5 days of good conduct credit for each month 15 of his or her sentence of imprisonment; and.16 (iv) that a prisoner serving a sentence for a 17 forcible felony when the court has made and entered 18 a finding under subdivision (c-1)(2) of Section 19 5-4-1 of this Code that the conduct leading to the 20 conviction of the forcible felony was streetgang 21 related criminal activity shall receive no more than 22 4.5 days of good conduct credit for each month of 23 his or her sentence of imprisonment. 24 For purposes of this Section, "streetgang" has the 25 meaning ascribed to it in Section 10 of the Illinois 26 Streetgang Terrorism Omnibus Prevention Act. 27 (2.1) For all offenses, other than those enumerated 28 in subdivision (a)(2) committed on or after the effective 29 date of this amendatory Act of 1995, the rules and 30 regulations shall provide that a prisoner who is serving 31 a term of imprisonment shall receive one day of good 32 conduct credit for each day of his or her sentence of 33 imprisonment or recommitment under Section 3-3-9. Each 34 day of good conduct credit shall reduce by one day the -12- LRB9010780RCks 1 prisoner's period of imprisonment or recommitment under 2 Section 3-3-9. 3 (2.2) A prisoner serving a term of natural life 4 imprisonment or a prisoner who has been sentenced to 5 death shall receive no good conduct credit. 6 (3) The rules and regulations shall also provide 7 that the Director may award up to 180 days additional 8 good conduct credit for meritorious service in specific 9 instances as the Director deems proper; except that no 10 more than 90 days of good conduct credit for meritorious 11 service shall be awarded to any prisoner who is serving a 12 sentence for conviction of first degree murder, reckless 13 homicide while under the influence of alcohol or any 14 other drug, aggravated kidnapping, kidnapping, predatory 15 criminal sexual assault of a child, aggravated criminal 16 sexual assault, criminal sexual assault, deviate sexual 17 assault, aggravated criminal sexual abuse, aggravated 18 indecent liberties with a child, indecent liberties with 19 a child, child pornography, heinous battery, aggravated 20 battery of a spouse, aggravated battery of a spouse with 21 a firearm, stalking, aggravated stalking, aggravated 22 battery of a child, endangering the life or health of a 23 child, cruelty to a child, or narcotic racketeering. 24 Notwithstanding the foregoing, good conduct credit for 25 meritorious service shall not be awarded on a sentence of 26 imprisonment imposed for conviction of one of the 27 offenses enumerated in subdivision (a)(2) when the 28 offense is committed on or after the effective date of 29 this amendatory Act of 1995. 30 (4) The rules and regulations shall also provide 31 that the good conduct credit accumulated and retained 32 under paragraph (2.1) of subsection (a) of this Section 33 by any inmate during specific periods of time in which 34 such inmate is engaged full-time in substance abuse -13- LRB9010780RCks 1 programs, correctional industry assignments, or 2 educational programs provided by the Department under 3 this paragraph (4) and satisfactorily completes the 4 assigned program as determined by the standards of the 5 Department, shall be multiplied by a factor of 1.25 for 6 program participation before the effective date of this 7 amendatory Act of 1993 and 1.50 for program participation 8 on or after that date. However, no inmate shall be 9 eligible for the additional good conduct credit under 10 this paragraph (4) while assigned to a boot camp, mental 11 health unit, or electronic detention, or if convicted of 12 an offense enumerated in paragraph (a)(2) of this Section 13 that is committed on or after the effective date of this 14 amendatory Act of 1995, or first degree murder, a Class X 15 felony, criminal sexual assault, felony criminal sexual 16 abuse, aggravated criminal sexual abuse, aggravated 17 battery with a firearm, or any predecessor or successor 18 offenses with the same or substantially the same 19 elements, or any inchoate offenses relating to the 20 foregoing offenses. No inmate shall be eligible for the 21 additional good conduct credit under this paragraph (4) 22 who (i) has previously received increased good conduct 23 credit under this paragraph (4) and has subsequently been 24 convicted of a felony, or (ii) has previously served more 25 than one prior sentence of imprisonment for a felony in 26 an adult correctional facility. 27 Educational, vocational, substance abuse and 28 correctional industry programs under which good conduct 29 credit may be increased under this paragraph (4) shall be 30 evaluated by the Department on the basis of documented 31 standards. The Department shall report the results of 32 these evaluations to the Governor and the General 33 Assembly by September 30th of each year. The reports 34 shall include data relating to the recidivism rate among -14- LRB9010780RCks 1 program participants. 2 Availability of these programs shall be subject to 3 the limits of fiscal resources appropriated by the 4 General Assembly for these purposes. Eligible inmates 5 who are denied immediate admission shall be placed on a 6 waiting list under criteria established by the 7 Department. The inability of any inmate to become engaged 8 in any such programs by reason of insufficient program 9 resources or for any other reason established under the 10 rules and regulations of the Department shall not be 11 deemed a cause of action under which the Department or 12 any employee or agent of the Department shall be liable 13 for damages to the inmate. 14 (5) Whenever the Department is to release any 15 inmate earlier than it otherwise would because of a grant 16 of good conduct credit for meritorious service given at 17 any time during the term, the Department shall give 18 reasonable advance notice of the impending release to the 19 State's Attorney of the county where the prosecution of 20 the inmate took place. 21 (b) Whenever a person is or has been committed under 22 several convictions, with separate sentences, the sentences 23 shall be construed under Section 5-8-4 in granting and 24 forfeiting of good time. 25 (c) The Department shall prescribe rules and regulations 26 for revoking good conduct credit, or suspending or reducing 27 the rate of accumulation of good conduct credit for specific 28 rule violations, during imprisonment. These rules and 29 regulations shall provide that no inmate may be penalized 30 more than one year of good conduct credit for any one 31 infraction. 32 When the Department seeks to revoke, suspend or reduce 33 the rate of accumulation of any good conduct credits for an 34 alleged infraction of its rules, it shall bring charges -15- LRB9010780RCks 1 therefor against the prisoner sought to be so deprived of 2 good conduct credits before the Prisoner Review Board as 3 provided in subparagraph (a)(4) of Section 3-3-2 of this 4 Code, if the amount of credit at issue exceeds 30 days or 5 when during any 12 month period, the cumulative amount of 6 credit revoked exceeds 30 days except where the infraction is 7 committed or discovered within 60 days of scheduled release. 8 In those cases, the Department of Corrections may revoke up 9 to 30 days of good conduct credit. The Board may subsequently 10 approve the revocation of additional good conduct credit, if 11 the Department seeks to revoke good conduct credit in excess 12 of 30 days. However, the Board shall not be empowered to 13 review the Department's decision with respect to the loss of 14 30 days of good conduct credit within any calendar year for 15 any prisoner or to increase any penalty beyond the length 16 requested by the Department. 17 The Director of the Department of Corrections, in 18 appropriate cases, may restore up to 30 days good conduct 19 credits which have been revoked, suspended or reduced. Any 20 restoration of good conduct credits in excess of 30 days 21 shall be subject to review by the Prisoner Review Board. 22 However, the Board may not restore good conduct credit in 23 excess of the amount requested by the Director. 24 Nothing contained in this Section shall prohibit the 25 Prisoner Review Board from ordering, pursuant to Section 26 3-3-9(a)(3)(i)(B), that a prisoner serve up to one year of 27 the sentence imposed by the court that was not served due to 28 the accumulation of good conduct credit. 29 (d) If a lawsuit is filed by a prisoner in an Illinois 30 or federal court against the State, the Department of 31 Corrections, or the Prisoner Review Board, or against any of 32 their officers or employees, and the court makes a specific 33 finding that a pleading, motion, or other paper filed by the 34 prisoner is frivolous, the Department of Corrections shall -16- LRB9010780RCks 1 conduct a hearing to revoke up to 180 days of good conduct 2 credit by bringing charges against the prisoner sought to be 3 deprived of the good conduct credits before the Prisoner 4 Review Board as provided in subparagraph (a)(8) of Section 5 3-3-2 of this Code. If the prisoner has not accumulated 180 6 days of good conduct credit at the time of the finding, then 7 the Prisoner Review Board may revoke all good conduct credit 8 accumulated by the prisoner. 9 For purposes of this subsection (d): 10 (1) "Frivolous" means that a pleading, motion, or 11 other filing which purports to be a legal document filed 12 by a prisoner in his or her lawsuit meets any or all of 13 the following criteria: 14 (A) it lacks an arguable basis either in law 15 or in fact; 16 (B) it is being presented for any improper 17 purpose, such as to harass or to cause unnecessary 18 delay or needless increase in the cost of 19 litigation; 20 (C) the claims, defenses, and other legal 21 contentions therein are not warranted by existing 22 law or by a nonfrivolous argument for the extension, 23 modification, or reversal of existing law or the 24 establishment of new law; 25 (D) the allegations and other factual 26 contentions do not have evidentiary support or, if 27 specifically so identified, are not likely to have 28 evidentiary support after a reasonable opportunity 29 for further investigation or discovery; or 30 (E) the denials of factual contentions are not 31 warranted on the evidence, or if specifically so 32 identified, are not reasonably based on a lack of 33 information or belief. 34 (2) "Lawsuit" means a petition for post conviction -17- LRB9010780RCks 1 relief under Article 122 of the Code of Criminal 2 Procedure of 1963, a motion pursuant to Section 116-3 of 3 the Code of Criminal Procedure of 1963, a habeas corpus 4 action under Article X of the Code of Civil Procedure or 5 under federal law (28 U.S.C. 2254), a petition for claim 6 under the Court of Claims Act or an action under the 7 federal Civil Rights Act (42 U.S.C. 1983). 8 (Source: P.A. 89-404, eff. 8-20-95; 89-428, eff. 12-13-95; 9 89-462, eff. 5-29-96; 89-656, eff. 1-1-97; 90-141, eff. 10 1-1-98; 90-505, eff. 8-19-97; revised 10-7-97.) 11 (730 ILCS 5/5-4-1) (from Ch. 38, par. 1005-4-1) 12 Sec. 5-4-1. Sentencing Hearing. 13 (a) Except when the death penalty is sought under 14 hearing procedures otherwise specified, after a determination 15 of guilt, a hearing shall be held to impose the sentence. 16 However, prior to the imposition of sentence on an individual 17 being sentenced for an offense based upon a charge for a 18 violation of Section 11-501 of the Illinois Vehicle Code or a 19 similar provision of a local ordinance, the individual must 20 undergo a professional evaluation to determine if an alcohol 21 or other drug abuse problem exists and the extent of such a 22 problem. Programs conducting these evaluations shall be 23 licensed by the Department of Human Services. However, if 24 the individual is not a resident of Illinois, the court may, 25 in its discretion, accept an evaluation from a program in the 26 state of such individual's residence. The court may in its 27 sentencing order approve an eligible defendant for placement 28 in a Department of Corrections impact incarceration program 29 as provided in Section 5-8-1.1. At the hearing the court 30 shall: 31 (1) consider the evidence, if any, received upon 32 the trial; 33 (2) consider any presentence reports; -18- LRB9010780RCks 1 (3) consider the financial impact of incarceration 2 based on the financial impact statement filed with the 3 clerk of the court by the Department of Corrections; 4 (4) consider evidence and information offered by 5 the parties in aggravation and mitigation; 6 (5) hear arguments as to sentencing alternatives; 7 (6) afford the defendant the opportunity to make a 8 statement in his own behalf; 9 (7) afford the victim of a violent crime or a 10 violation of Section 11-501 of the Illinois Vehicle Code, 11 or a similar provision of a local ordinance, committed by 12 the defendant the opportunity to make a statement 13 concerning the impact on the victim and to offer evidence 14 in aggravation or mitigation; provided that the statement 15 and evidence offered in aggravation or mitigation must 16 first be prepared in writing in conjunction with the 17 State's Attorney before it may be presented orally at the 18 hearing. Any sworn testimony offered by the victim is 19 subject to the defendant's right to cross-examine. All 20 statements and evidence offered under this paragraph (7) 21 shall become part of the record of the court; and 22 (8) in cases of reckless homicide afford the 23 victim's spouse, guardians, parents or other immediate 24 family members an opportunity to make oral statements. 25 (b) All sentences shall be imposed by the judge based 26 upon his independent assessment of the elements specified 27 above and any agreement as to sentence reached by the 28 parties. The judge who presided at the trial or the judge 29 who accepted the plea of guilty shall impose the sentence 30 unless he is no longer sitting as a judge in that court. 31 Where the judge does not impose sentence at the same time on 32 all defendants who are convicted as a result of being 33 involved in the same offense, the defendant or the State's 34 attorney may advise the sentencing court of the disposition -19- LRB9010780RCks 1 of any other defendants who have been sentenced. 2 (c) In imposing a sentence for a violent crime or for an 3 offense of operating or being in physical control of a 4 vehicle while under the influence of alcohol, any other drug 5 or any combination thereof, or a similar provision of a local 6 ordinance, when such offense resulted in the personal injury 7 to someone other than the defendant, the trial judge shall 8 specify on the record the particular evidence, information, 9 factors in mitigation and aggravation or other reasons that 10 led to his sentencing determination. The full verbatim record 11 of the sentencing hearing shall be filed with the clerk of 12 the court and shall be a public record. 13 (c-1) 1. In imposing a sentence for the offense of 14 aggravated kidnapping for ransom, home invasion, armed 15 robbery, aggravated vehicular hijacking, aggravated 16 discharge of a firearm, or armed violence with a category 17 I weapon or category II weapon, the trial judge shall 18 make a finding as to whether the conduct leading to 19 conviction for the offense resulted in great bodily harm 20 to a victim, and shall enter that finding and the basis 21 for that finding in the record. 22 2. In imposing a sentence for a forcible felony, 23 the trial judge shall make a finding as to whether the 24 conduct leading to the conviction of the forcible felony 25 was streetgang related criminal activity with the intent 26 (i) to increase the gang's size, membership, prestige, 27 dominance, or control in any geographical area, or (ii) 28 to exact revenge or retribution for any gang or member of 29 the gang, or (iii) to obstruct justice or intimidate or 30 eliminate any witness against the gang or member of the 31 gang, or (iv) to directly or indirectly cause any 32 benefit, aggrandizement, gain, profit or other advantage 33 to or for the gang, its reputation, influence or 34 membership. -20- LRB9010780RCks 1 For the purpose of this Section, "streetgang" or "gang" 2 has the meaning ascribed to it in Section 10 of the Illinois 3 Streetgang Terrorism Omnibus Prevention Act. 4 (c-2) If the defendant is sentenced to prison, other 5 than when a sentence of natural life imprisonment or a 6 sentence of death is imposed, at the time the sentence is 7 imposed the judge shall state on the record in open court the 8 approximate period of time the defendant will serve in 9 custody according to the then current statutory rules and 10 regulations for early release found in Section 3-6-3 and 11 other related provisions of this Code. This statement is 12 intended solely to inform the public, has no legal effect on 13 the defendant's actual release, and may not be relied on by 14 the defendant on appeal. 15 The judge's statement, to be given after pronouncing the 16 sentence, other than when the sentence is imposed for one of 17 the offenses enumerated in paragraph (a)(3) of Section 3-6-3, 18 shall include the following: 19 "The purpose of this statement is to inform the public of 20 the actual period of time this defendant is likely to spend 21 in prison as a result of this sentence. The actual period of 22 prison time served is determined by the statutes of Illinois 23 as applied to this sentence by the Illinois Department of 24 Corrections and the Illinois Prisoner Review Board. In this 25 case, assuming the defendant receives all of his or her good 26 conduct credit, the period of estimated actual custody is ... 27 years and ... months, less up to 180 days additional good 28 conduct credit for meritorious service. If the defendant, 29 because of his or her own misconduct or failure to comply 30 with the institutional regulations, does not receive those 31 credits, the actual time served in prison will be longer. 32 The defendant may also receive an additional one-half day 33 good conduct credit for each day of participation in 34 vocational, industry, substance abuse, and educational -21- LRB9010780RCks 1 programs as provided for by Illinois statute." 2 When the sentence is imposed for one of the offenses 3 enumerated in paragraph (a)(3) of Section 3-6-3, other than 4 when the sentence is imposed for one of the offenses 5 enumerated in paragraph (a)(2) of Section 3-6-3 committed on 6 or after the effective date of this amendatory Act of 1995, 7 the judge's statement, to be given after pronouncing the 8 sentence, shall include the following: 9 "The purpose of this statement is to inform the public of 10 the actual period of time this defendant is likely to spend 11 in prison as a result of this sentence. The actual period of 12 prison time served is determined by the statutes of Illinois 13 as applied to this sentence by the Illinois Department of 14 Corrections and the Illinois Prisoner Review Board. In this 15 case, assuming the defendant receives all of his or her good 16 conduct credit, the period of estimated actual custody is ... 17 years and ... months, less up to 90 days additional good 18 conduct credit for meritorious service. If the defendant, 19 because of his or her own misconduct or failure to comply 20 with the institutional regulations, does not receive those 21 credits, the actual time served in prison will be longer. 22 The defendant may also receive an additional one-half day 23 good conduct credit for each day of participation in 24 vocational, industry, substance abuse, and educational 25 programs as provided for by Illinois statute." 26 When the sentence is imposed for one of the offenses 27 enumerated in paragraph (a)(2) of Section 3-6-3, other than 28 first degree murder, and the offense was committed on or 29 after the effective date of this amendatory Act of 1995, the 30 judge's statement, to be given after pronouncing the 31 sentence, shall include the following: 32 "The purpose of this statement is to inform the public of 33 the actual period of time this defendant is likely to spend 34 in prison as a result of this sentence. The actual period of -22- LRB9010780RCks 1 prison time served is determined by the statutes of Illinois 2 as applied to this sentence by the Illinois Department of 3 Corrections and the Illinois Prisoner Review Board. In this 4 case, the defendant is entitled to no more than 4 1/2 days of 5 good conduct credit for each month of his or her sentence of 6 imprisonment. Therefore, this defendant will serve at least 7 85% of his or her sentence. Assuming the defendant receives 8 4 1/2 days credit for each month of his or her sentence, the 9 period of estimated actual custody is ... years and ... 10 months. If the defendant, because of his or her own 11 misconduct or failure to comply with the institutional 12 regulations receives lesser credit, the actual time served in 13 prison will be longer." 14 When a sentence of imprisonment is imposed for first 15 degree murder and the offense was committed on or after the 16 effective date of this amendatory Act of 1995, the judge's 17 statement, to be given after pronouncing the sentence, shall 18 include the following: 19 "The purpose of this statement is to inform the public of 20 the actual period of time this defendant is likely to spend 21 in prison as a result of this sentence. The actual period of 22 prison time served is determined by the statutes of Illinois 23 as applied to this sentence by the Illinois Department of 24 Corrections and the Illinois Prisoner Review Board. In this 25 case, the defendant is not entitled to good conduct credit. 26 Therefore, this defendant will serve 100% of his or her 27 sentence." 28 (d) When the defendant is committed to the Department of 29 Corrections, the State's Attorney shall and counsel for the 30 defendant may file a statement with the clerk of the court to 31 be transmitted to the department, agency or institution to 32 which the defendant is committed to furnish such department, 33 agency or institution with the facts and circumstances of the 34 offense for which the person was committed together with all -23- LRB9010780RCks 1 other factual information accessible to them in regard to the 2 person prior to his commitment relative to his habits, 3 associates, disposition and reputation and any other facts 4 and circumstances which may aid such department, agency or 5 institution during its custody of such person. The clerk 6 shall within 10 days after receiving any such statements 7 transmit a copy to such department, agency or institution and 8 a copy to the other party, provided, however, that this shall 9 not be cause for delay in conveying the person to the 10 department, agency or institution to which he has been 11 committed. 12 (e) The clerk of the court shall transmit to the 13 department, agency or institution, if any, to which the 14 defendant is committed, the following: 15 (1) the sentence imposed; 16 (2) any statement by the court of the basis for 17 imposing the sentence; 18 (3) any presentence reports; 19 (4) the number of days, if any, which the defendant 20 has been in custody and for which he is entitled to 21 credit against the sentence, which information shall be 22 provided to the clerk by the sheriff; 23 (4.1) any finding of great bodily harm made by the 24 court with respect to an offense enumerated in subsection 25 (c-1); 26 (5) all statements filed under subsection (d) of 27 this Section; 28 (6) any medical or mental health records or 29 summaries of the defendant; 30 (7) the municipality where the arrest of the 31 offender or the commission of the offense has occurred, 32 where such municipality has a population of more than 33 25,000 persons; 34 (8) all statements made and evidence offered under -24- LRB9010780RCks 1 paragraph (7) of subsection (a) of this Section; and 2 (9) all additional matters which the court directs 3 the clerk to transmit. 4 (Source: P.A. 89-404, eff. 8-20-95; 89-507, eff. 7-1-97.) 5 (730 ILCS 5/5-8-1) (from Ch. 38, par. 1005-8-1) 6 Sec. 5-8-1. Sentence of Imprisonment for Felony. 7 (a) Except as otherwise provided in the statute defining 8 the offense, a sentence of imprisonment for a felony shall be 9 a determinate sentence set by the court under this Section, 10 according to the following limitations: 11 (1) for first degree murder, 12 (a) a term shall be not less than 20 years and 13 not more than 60 years, or 14 (a-5) if the court finds that the conduct 15 leading to the murder was streetgang related 16 criminal activity with the intent (i) to increase 17 the gang's size, membership, prestige, dominance, or 18 control in any geographical area, or (ii) to exact 19 revenge or retribution for any gang or member of the 20 gang, or (iii) to obstruct justice or intimidate or 21 eliminate any witness against the gang or any member 22 of the gang, or (iv) to directly or indirectly cause 23 any benefit, aggrandizement, gain, profit or other 24 advantage to or for the gang, its reputation, 25 influence or membership, the court shall sentence 26 the defendant to a term of not less than 30 and not 27 more than 80 years. 28 For the purpose of this Section, "streetgang" or "gang" 29 has the meaning ascribed to it by Section 10 of the Illinois 30 Streetgang Terrorism Omnibus Prevention Act. 31 (b) if the court finds that the murder was 32 accompanied by exceptionally brutal or heinous 33 behavior indicative of wanton cruelty or, except as -25- LRB9010780RCks 1 set forth in subsection (a)(1)(c) of this Section, 2 that any of the aggravating factors listed in 3 subsection (b) of Section 9-1 of the Criminal Code 4 of 1961 are present, the court may sentence the 5 defendant to a term of natural life imprisonment, or 6 (c) the court shall sentence the defendant to 7 a term of natural life imprisonment when the death 8 penalty is not imposed if the defendant, 9 (i) has previously been convicted of 10 first degree murder under any state or federal 11 law, or 12 (ii) is a person who, at the time of the 13 commission of the murder, had attained the age 14 of 17 or more and is found guilty of murdering 15 an individual under 12 years of age; or, 16 irrespective of the defendant's age at the time 17 of the commission of the offense, is found 18 guilty of murdering more than one victim, or 19 (iii) is found guilty of murdering a 20 peace officer or fireman when the peace officer 21 or fireman was killed in the course of 22 performing his official duties, or to prevent 23 the peace officer or fireman from performing 24 his official duties, or in retaliation for the 25 peace officer or fireman performing his 26 official duties, and the defendant knew or 27 should have known that the murdered individual 28 was a peace officer or fireman, or 29 (iv) is found guilty of murdering an 30 employee of an institution or facility of the 31 Department of Corrections, or any similar local 32 correctional agency, when the employee was 33 killed in the course of performing his official 34 duties, or to prevent the employee from -26- LRB9010780RCks 1 performing his official duties, or in 2 retaliation for the employee performing his 3 official duties, or 4 (v) is found guilty of murdering an 5 emergency medical technician - ambulance, 6 emergency medical technician - intermediate, 7 emergency medical technician - paramedic, 8 ambulance driver or other medical assistance or 9 first aid person while employed by a 10 municipality or other governmental unit when 11 the person was killed in the course of 12 performing official duties or to prevent the 13 person from performing official duties or in 14 retaliation for performing official duties and 15 the defendant knew or should have known that 16 the murdered individual was an emergency 17 medical technician - ambulance, emergency 18 medical technician - intermediate, emergency 19 medical technician - paramedic, ambulance 20 driver, or other medical assistant or first aid 21 personnel, or 22 (vi) is a person who, at the time of the 23 commission of the murder, had not attained the 24 age of 17, and is found guilty of murdering a 25 person under 12 years of age and the murder is 26 committed during the course of aggravated 27 criminal sexual assault, criminal sexual 28 assault, or aggravated kidnaping. 29 For purposes of clause (v), "emergency medical 30 technician - ambulance", "emergency medical 31 technician - intermediate", "emergency medical 32 technician - paramedic", have the meanings ascribed 33 to them in the Emergency Medical Services (EMS) 34 Systems Act. -27- LRB9010780RCks 1 (1.5) for second degree murder, a term shall be not 2 less than 4 years and not more than 20 years; 3 (2) for a person adjudged a habitual criminal under 4 Article 33B of the Criminal Code of 1961, as amended, the 5 sentence shall be a term of natural life imprisonment; 6 (2.5) for a person convicted under the 7 circumstances described in paragraph (3) of subsection 8 (b) of Section 12-13, paragraph (2) of subsection (d) of 9 Section 12-14, or paragraph (2) of subsection (b) of 10 Section 12-14.1 of the Criminal Code of 1961, the 11 sentence shall be a term of natural life imprisonment; 12 (3) except as otherwise provided in the statute 13 defining the offense, for a Class X felony, the sentence 14 shall be not less than 6 years and not more than 30 15 years; 16 (4) for a Class 1 felony, other than second degree 17 murder, the sentence shall be not less than 4 years and 18 not more than 15 years; 19 (5) for a Class 2 felony, the sentence shall be not 20 less than 3 years and not more than 7 years; 21 (6) for a Class 3 felony, the sentence shall be not 22 less than 2 years and not more than 5 years; 23 (7) for a Class 4 felony, the sentence shall be not 24 less than 1 year and not more than 3 years. 25 (b) The sentencing judge in each felony conviction shall 26 set forth his reasons for imposing the particular sentence he 27 enters in the case, as provided in Section 5-4-1 of this 28 Code. Those reasons may include any mitigating or 29 aggravating factors specified in this Code, or the lack of 30 any such circumstances, as well as any other such factors as 31 the judge shall set forth on the record that are consistent 32 with the purposes and principles of sentencing set out in 33 this Code. 34 (c) A motion to reduce a sentence may be made, or the -28- LRB9010780RCks 1 court may reduce a sentence without motion, within 30 days 2 after the sentence is imposed. A defendant's challenge to 3 the correctness of a sentence or to any aspect of the 4 sentencing hearing shall be made by a written motion filed 5 within 30 days following the imposition of sentence. 6 However, the court may not increase a sentence once it is 7 imposed. 8 If a motion filed pursuant to this subsection is timely 9 filed within 30 days after the sentence is imposed, the 10 proponent of the motion shall exercise due diligence in 11 seeking a determination on the motion and the court shall 12 thereafter decide such motion within a reasonable time. 13 If a motion filed pursuant to this subsection is timely 14 filed within 30 days after the sentence is imposed, then for 15 purposes of perfecting an appeal, a final judgment shall not 16 be considered to have been entered until the motion to reduce 17 a sentence has been decided by order entered by the trial 18 court. 19 A motion filed pursuant to this subsection shall not be 20 considered to have been timely filed unless it is filed with 21 the circuit court clerk within 30 days after the sentence is 22 imposed together with a notice of motion, which notice of 23 motion shall set the motion on the court's calendar on a date 24 certain within a reasonable time after the date of filing. 25 (d) Except where a term of natural life is imposed, 26 every sentence shall include as though written therein a term 27 in addition to the term of imprisonment. For those sentenced 28 under the law in effect prior to February 1, 1978, such term 29 shall be identified as a parole term. For those sentenced on 30 or after February 1, 1978, such term shall be identified as a 31 mandatory supervised release term. Subject to earlier 32 termination under Section 3-3-8, the parole or mandatory 33 supervised release term shall be as follows: 34 (1) for first degree murder or a Class X felony, 3 -29- LRB9010780RCks 1 years; 2 (2) for a Class 1 felony or a Class 2 felony, 2 3 years; 4 (3) for a Class 3 felony or a Class 4 felony, 1 5 year. 6 (e) A defendant who has a previous and unexpired 7 sentence of imprisonment imposed by another state or by any 8 district court of the United States and who, after sentence 9 for a crime in Illinois, must return to serve the unexpired 10 prior sentence may have his sentence by the Illinois court 11 ordered to be concurrent with the prior sentence in the other 12 state. The court may order that any time served on the 13 unexpired portion of the sentence in the other state, prior 14 to his return to Illinois, shall be credited on his Illinois 15 sentence. The other state shall be furnished with a copy of 16 the order imposing sentence which shall provide that, when 17 the offender is released from confinement of the other state, 18 whether by parole or by termination of sentence, the offender 19 shall be transferred by the Sheriff of the committing county 20 to the Illinois Department of Corrections. The court shall 21 cause the Department of Corrections to be notified of such 22 sentence at the time of commitment and to be provided with 23 copies of all records regarding the sentence. 24 (f) A defendant who has a previous and unexpired 25 sentence of imprisonment imposed by an Illinois circuit court 26 for a crime in this State and who is subsequently sentenced 27 to a term of imprisonment by another state or by any district 28 court of the United States and who has served a term of 29 imprisonment imposed by the other state or district court of 30 the United States, and must return to serve the unexpired 31 prior sentence imposed by the Illinois Circuit Court may 32 apply to the court which imposed sentence to have his 33 sentence reduced. 34 The circuit court may order that any time served on the -30- LRB9010780RCks 1 sentence imposed by the other state or district court of the 2 United States be credited on his Illinois sentence. Such 3 application for reduction of a sentence under this 4 subsection (f) shall be made within 30 days after the 5 defendant has completed the sentence imposed by the other 6 state or district court of the United States. 7 (Source: P.A. 89-203, eff. 7-21-95; 89-428, eff. 12-13-95; 8 89-462, eff. 5-29-96; 90-396, eff. 1-1-98.)