98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB5460
 
Introduced , by Rep. Kenneth Dunkin
 
SYNOPSIS AS INTRODUCED:



      
720 ILCS 5/7-1 from Ch. 38, par. 7-1
725 ILCS 5/116-2.2 new
725 ILCS 120/4.5
730 ILCS 5/5-5-3.1 from Ch. 38, par. 1005-5-3.1

 Amends the Criminal Code of 2012. Provides that a person is also justified in the use of deadly force if he or she is or has been the victim of domestic violence and the effects of the domestic violence cause him or her to have a reasonable belief that the force is necessary to prevent the perpetrator of the domestic violence from causing death or great bodily harm to himself or herself or another. Defines "domestic violence". Amends the Code of Criminal Procedure of 1963. Permits a motion for sentence modification for domestic violence victims. Amends the Rights of Crime Victims and Witnesses Act to provide for notification by the office of the State's Attorney upon request of the crime victim of any request for resentencing filed by the defendant and of the date, time, and place of any hearing concerning the motion. Amends the Unified Code of Corrections. Provides that it is a mitigating factor in sentencing if at the time of the offense, the defendant was or had been the victim of domestic violence and the effect of the domestic violence tended to excuse or justify the defendant's criminal conduct.



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A BILL FOR
 


HB5460LRB098 17596 RLC 52707 b



1 AN ACT concerning criminal law.


2 Be it enacted by the People of the State of Illinois,

3represented in the General Assembly:



4 Section 5. The Criminal Code of 2012 is amended by changing 
5Section 7-1 as follows:




6 (720 ILCS 5/7-1) (from Ch. 38, par. 7-1)


7 Sec. 7-1. Use of
force in defense of person. 
8 (a) A person is justified in the use of force against 
9another when and to
the extent that he or she reasonably 
10believes that such conduct is necessary to
defend himself or 
11herself or another against such other's imminent use of 
12unlawful
force. However, he or she is justified in the use of 
13force which is intended or
likely to cause death or great 
14bodily harm only if (i) he or she reasonably believes
that such 
15force is necessary to prevent imminent death or great bodily 
16harm
to himself or herself or another, or the commission of a 
17forcible felony, or if (ii) he or she is or has been the victim 
18of domestic violence and the effects of the domestic violence 
19cause him or her to have a reasonable belief that the force is 
20necessary to prevent the perpetrator of the domestic violence 
21from causing death or great bodily harm to himself or herself 
22or another. A "reasonable belief" under clause (ii) of this 
23subsection (a) means a belief that would be held by an 
 
 
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1individual in that person's situation. For the purposes of 
2clause (ii), "domestic violence" means "abuse" as defined in 
3Section 103 of the Illinois Domestic Violence Act of 1986.
4 (b) In no case shall any act involving the use of force 
5justified under this Section give rise to any claim or 
6liability brought by or on behalf of any person acting within 
7the definition of "aggressor" set forth in Section 7-4 of this 
8Article, or the estate, spouse, or other family member of such 
9a person, against the person or estate of the person using such 
10justified force, unless the use of force involves willful or 
11wanton misconduct.


12(Source: P.A. 93-832, eff. 7-28-04.)


13 Section 10. The Code of Criminal Procedure of 1963 is 
14amended by adding Section 116-2.2 as follows:

15 (725 ILCS 5/116-2.2 new)
16 Sec. 116-2.2. Motion for sentence modification for 
17domestic violence victims. 
18 (a) As used in this Section:
19  "Domestic violence" means "abuse" as defined in 
20 Section 103 of the Illinois Domestic Violence Act of 1986.
21  "Forcible felony" has the meaning ascribed to the term 
22 in Section 2-8 of the Criminal Code of 2012. 
23 (b) A defendant may make a motion for resentencing in the 
24circuit court of the county in which he or she was originally 
 
 
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1sentenced, when the conviction was for a forcible felony or for 
2solicitation, attempt, or conspiracy to commit a forcible 
3felony; provided that:
4  (1) at the time of the offense the defendant was or had 
5 been the victim of domestic violence;
6  (2) the effects of the domestic violence tended to 
7 excuse or justify the defendant's criminal conduct; and
8  (3) the motion shall state why the facts giving rise to 
9 this motion were not presented at sentencing, and shall be 
10 made with due diligence, after the defendant has ceased to 
11 be a victim of domestic violence or has sought services for 
12 victims of domestic violence, subject to reasonable 
13 concerns for the safety of the defendant, family members of 
14 the defendant, or other victims of the domestic violence 
15 that may be jeopardized by the bringing of the motion, or 
16 for other reasons consistent with the purpose of this 
17 Section.
18 (c) The burden of proof is on the defendant to establish, 
19by a preponderance of the evidence, that at the time of the 
20offense the defendant was or had been the victim of domestic 
21violence, and that the effects of the domestic violence tended 
22to excuse or justify the defendant's criminal conduct. Evidence 
23of the domestic violence may include, but is not limited to:
24  (1) civil or criminal court records, proceedings, 
25 pre-sentence reports, social services records, hospital 
26 records, sworn statements from a witness, law enforcement 
 
 
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1 records, domestic incident reports, police reports, 
2 witness statements prepared or elicited by law enforcement 
3 officers, or orders of protection;
4  (2) local and Department of Corrections records; or
5  (3) verification of consultation with a licensed 
6 medical or mental health care provider, employee of a court 
7 acting within the scope of his or her employment, clergy, 
8 attorney, social worker, or rape crisis counselor, 
9 advocate from an agency assisting victims of domestic 
10 violence, or other professional from whom the defendant has 
11 sought assistance in addressing the trauma associated with 
12 domestic violence.
13Alternatively, the court may consider any other evidence it 
14deems of sufficient credibility and probative value in 
15determining whether the defendant was or had been the victim of 
16domestic violence at the time of the offense, and whether the 
17effects of the domestic violence tended to excuse or justify 
18the defendant's criminal conduct. This other evidence may 
19include but is not limited to the court file of the proceeding 
20in which the defendant was convicted, any action taken by an 
21appellate court in the proceeding, and any transcripts of the 
22proceeding. In its discretion the court may order the defendant 
23brought before the court for the hearing.
24 (d) Within 90 days after the filing and docketing of a 
25motion, the court shall examine the motion and enter an order 
26on the motion under this Section.
 
 
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1  (1) If the defendant is without counsel and alleges 
2 that he or she is without means to procure counsel, he or 
3 she shall state whether or not he or she wishes counsel to 
4 be appointed to represent the defendant. If appointment of 
5 counsel is requested, the court shall appoint counsel if 
6 satisfied that the defendant has no means to procure 
7 counsel.
8  (2) If the court determines the motion is frivolous or 
9 is patently without merit, it shall dismiss the motion in a 
10 written order, specifying the findings of fact and 
11 conclusions of law it made in reaching its decision. The 
12 order of dismissal is a final judgment and shall be served 
13 upon the defendant by certified mail within 10 days of its 
14 entry.
15  (3) If the motion is not dismissed under this Section, 
16 the court shall order the motion to be docketed for further 
17 consideration and hearing within 180 days of the filing of 
18 the motion. Continuances may be granted as the court deems 
19 appropriate.
20 (e) Within 30 days after the making of an order under 
21paragraph (3) of subsection (d) or within any further time as 
22the court may set, the State shall answer or move to dismiss. 
23In the event that a motion to dismiss is filed and denied, the 
24State must file an answer within 20 days after the denial. No 
25other or further pleadings shall be filed except as the court 
26may order on its own motion or on that of either party. The 
 
 
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1court may in its discretion grant leave, at any stage of the 
2proceeding prior to entry of judgment, to withdraw the 
3defendant's motion. The court may in its discretion make the 
4order as to amendment of the motion or any other pleading, or 
5as to pleading over, or filing further pleadings, or extending 
6the time of filing any pleading other than the original motion, 
7as shall be appropriate, just, and reasonable and as generally 
8provided in civil cases.
9 (f) The court may grant the motion if it determines that at 
10the time of the offense the defendant was or had been the 
11victim of domestic violence, and the effects of the domestic 
12violence tended to excuse or justify the defendant's criminal 
13conduct.
14 (g) If the court finds in favor of the defendant, it may 
15reduce the sentence in accordance with the current factors in 
16mitigation in sentencing under Section 5-5-3.1 of the Unified 
17Code of Corrections, as may be necessary and proper.

18 Section 15. The Rights of Crime Victims and Witnesses Act 
19is amended by changing Section 4.5 as follows:



20 (725 ILCS 120/4.5)


21 Sec. 4.5. Procedures to implement the rights of crime 
22victims. To afford
crime victims their rights, law enforcement, 
23prosecutors, judges and
corrections will provide information, 
24as appropriate of the following
procedures:

 
 
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1 (a) At the request of the crime victim, law enforcement 
2authorities
investigating the case shall provide notice of the 
3status of the investigation,
except where the State's Attorney 
4determines that disclosure of such
information would 
5unreasonably interfere with the investigation, until such
time 
6as the alleged assailant is apprehended or the investigation is 
7closed.

8 (a-5) When law enforcement authorities re-open a closed 
9case to resume investigating, they shall provide notice of the 
10re-opening of the case, except where the State's Attorney 
11determines that disclosure of such information would 
12unreasonably interfere with the investigation. 
13 (b) The office of the State's Attorney:


14  (1) shall provide notice of the filing of information, 
15 the return of an
indictment by which a prosecution for any 
16 violent crime is commenced, or the
filing of a petition to 
17 adjudicate a minor as a delinquent for a violent
crime;


18  (2) shall provide notice of the date, time, and place 
19 of trial;


20  (3) or victim advocate personnel shall provide 
21 information of social
services and financial assistance 
22 available for victims of crime, including
information of 
23 how to apply for these services and assistance;

24  (3.5) or victim advocate personnel shall provide 
25 information about available victim services, including 
26 referrals to programs, counselors, and agencies that 
 
 
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1 assist a victim to deal with trauma, loss, and grief; 

2  (4) shall assist in having any stolen or other personal 
3 property held by
law enforcement authorities for 
4 evidentiary or other purposes returned as
expeditiously as 
5 possible, pursuant to the procedures set out in Section 
6 115-9
of the Code of Criminal Procedure of 1963;


7  (5) or victim advocate personnel shall provide 
8 appropriate employer
intercession services to ensure that 
9 employers of victims will cooperate with
the criminal 
10 justice system in order to minimize an employee's loss of 
11 pay and
other benefits resulting from court appearances;


12  (6) shall provide information whenever possible, of a 
13 secure waiting
area during court proceedings that does not 
14 require victims to be in close
proximity to defendant or 
15 juveniles accused of a violent crime, and their
families 
16 and friends;


17  (7) shall provide notice to the crime victim of the 
18 right to have a
translator present at all court proceedings 
19 and, in compliance with the federal Americans
with 
20 Disabilities Act of 1990, the right to communications 
21 access through a
sign language interpreter or by other 
22 means;


23  (8) in the case of the death of a person, which death 
24 occurred in the same
transaction or occurrence in which 
25 acts occurred for which a defendant is
charged with an 
26 offense, shall notify the spouse, parent, child or sibling 
 
 
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1 of
the decedent of the date of the trial of the person or 
2 persons allegedly
responsible for the death;


3  (9) shall inform the victim of the right to have 
4 present at all court
proceedings, subject to the rules of 
5 evidence, an advocate or other support
person of the 
6 victim's choice, and the right to retain an attorney, at 
7 the
victim's own expense, who, upon written notice filed 
8 with the clerk of the
court and State's Attorney, is to 
9 receive copies of all notices, motions and
court orders 
10 filed thereafter in the case, in the same manner as if the 
11 victim
were a named party in the case;

12  (9.5) shall inform the victim of (A) the victim's right 
13 under Section 6 of this Act to make a victim impact 
14 statement at the sentencing hearing; (B) the right of the 
15 victim's spouse, guardian, parent, grandparent and other 
16 immediate family and household members under Section 6 of 
17 this Act to present an impact statement at sentencing; and 
18 (C) if a presentence report is to be prepared, the right of 
19 the victim's spouse, guardian, parent, grandparent and 
20 other immediate family and household members to submit 
21 information to the preparer of the presentence report about 
22 the effect the offense has had on the victim and the 
23 person;

24  (10) at the sentencing hearing shall make a good faith 
25 attempt to explain
the minimum amount of time during which 
26 the defendant may actually be
physically imprisoned. The 
 
 
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1 Office of the State's Attorney shall further notify
the 
2 crime victim of the right to request from the Prisoner 
3 Review Board
information concerning the release of the 
4 defendant under subparagraph (d)(1)
of this Section;


5  (11) shall request restitution at sentencing and shall 
6 consider
restitution in any plea negotiation, as provided 
7 by law; and

8  (12) shall, upon the court entering a verdict of not 
9 guilty by reason of insanity, inform the victim of the 
10 notification services available from the Department of 
11 Human Services, including the statewide telephone number, 
12 under subparagraph (d)(2) of this Section. 
13 (c) At the written request of the crime victim, the office 
14of the State's
Attorney shall:


15  (1) provide notice a reasonable time in advance of the 
16 following court
proceedings: preliminary hearing, any 
17 hearing the effect of which may be the
release of defendant 
18 from custody, or to alter the conditions of bond and the

19 sentencing hearing. The crime victim shall also be notified 
20 of the
cancellation of the court proceeding in sufficient 
21 time, wherever possible, to
prevent an unnecessary 
22 appearance in court;


23  (2) provide notice within a reasonable time after 
24 receipt of notice from
the custodian, of the release of the 
25 defendant on bail or personal recognizance
or the release 
26 from detention of a minor who has been detained for a 
 
 
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1 violent
crime;


2  (3) explain in nontechnical language the details of any 
3 plea or verdict of
a defendant, or any adjudication of a 
4 juvenile as a delinquent for a violent
crime;


5  (4) where practical, consult with the crime victim 
6 before the Office of
the State's Attorney makes an offer of 
7 a plea bargain to the defendant or
enters into negotiations 
8 with the defendant concerning a possible plea
agreement, 
9 and shall consider the written victim impact statement, if 
10 prepared
prior to entering into a plea agreement;


11  (5) provide notice of the ultimate disposition of the 
12 cases arising from
an indictment or an information, or a 
13 petition to have a juvenile adjudicated
as a delinquent for 
14 a violent crime;


15  (6) provide notice of any appeal taken by the defendant 
16 and information
on how to contact the appropriate agency 
17 handling the appeal;


18  (7) provide notice of any request for post-conviction 
19 review filed by the
defendant under Article 122 of the Code 
20 of Criminal Procedure of 1963, and of
the date, time and 
21 place of any hearing concerning the petition. Whenever

22 possible, notice of the hearing shall be given in advance;
23  (7.5) provide notice of any request for resentencing 
24 filed by the defendant under Section 116-2.2 of the Code of 
25 Criminal Procedure of 1963, and of the date, time, and 
26 place of any hearing concerning the motion; 


 
 
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1  (8) forward a copy of any statement presented under 
2 Section 6 to the
Prisoner Review Board to be considered by 
3 the Board in making its determination
under subsection (b) 
4 of Section 3-3-8 of the Unified Code of Corrections.

5 (d)(1) The Prisoner Review Board shall inform a victim or 
6any other
concerned citizen, upon written request, of the 
7prisoner's release on parole, aftercare release,
mandatory 
8supervised release, electronic detention, work release, 
9international transfer or exchange, or by the
custodian of the 
10discharge of any individual who was adjudicated a delinquent

11for a violent crime from State custody and by the sheriff of 
12the appropriate
county of any such person's final discharge 
13from county custody.
The Prisoner Review Board, upon written 
14request, shall provide to a victim or
any other concerned 
15citizen a recent photograph of any person convicted of a

16felony, upon his or her release from custody.
The Prisoner

17Review Board, upon written request, shall inform a victim or 
18any other
concerned citizen when feasible at least 7 days prior 
19to the prisoner's release
on furlough of the times and dates of 
20such furlough. Upon written request by
the victim or any other 
21concerned citizen, the State's Attorney shall notify
the person 
22once of the times and dates of release of a prisoner sentenced 
23to
periodic imprisonment. Notification shall be based on the 
24most recent
information as to victim's or other concerned 
25citizen's residence or other
location available to the 
26notifying authority.



 
 
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1 (2) When the defendant has been committed to the Department 
2of
Human Services pursuant to Section 5-2-4 or any other

3provision of the Unified Code of Corrections, the victim may 
4request to be
notified by the releasing authority of the 
5approval by the court of an on-grounds pass, a supervised 
6off-grounds pass, an unsupervised off-grounds pass, or 
7conditional release; the release on an off-grounds pass; the 
8return from an off-grounds pass; transfer to another facility; 
9conditional release; escape; death; or final discharge from 
10State
custody. The Department of Human Services shall establish 
11and maintain a statewide telephone number to be used by victims 
12to make notification requests under these provisions and shall 
13publicize this telephone number on its website and to the 
14State's Attorney of each county.


15 (3) In the event of an escape from State custody, the 
16Department of
Corrections or the Department of Juvenile Justice 
17immediately shall notify the Prisoner Review Board of the 
18escape
and the Prisoner Review Board shall notify the victim. 
19The notification shall
be based upon the most recent 
20information as to the victim's residence or other
location 
21available to the Board. When no such information is available, 
22the
Board shall make all reasonable efforts to obtain the 
23information and make
the notification. When the escapee is 
24apprehended, the Department of
Corrections or the Department of 
25Juvenile Justice immediately shall notify the Prisoner Review 
26Board and the Board
shall notify the victim.


 
 
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1 (4) The victim of the crime for which the prisoner has been 
2sentenced
shall receive reasonable written notice not less than 
330 days prior to the
parole or aftercare release hearing and 
4may submit, in writing, on film, videotape or other
electronic 
5means or in the form of a recording or in person at the parole 
6or aftercare release hearing
or if a victim of a violent crime, 
7by calling the
toll-free number established in subsection (f) 
8of this Section, information
for
consideration by the Prisoner 
9Review Board. The
victim shall be notified within 7 days after 
10the prisoner has been granted
parole or aftercare release and 
11shall be informed of the right to inspect the registry of 
12parole or aftercare release
decisions, established under 
13subsection (g) of Section 3-3-5 of the Unified
Code of 
14Corrections. The provisions of this paragraph (4) are subject 
15to the
Open Parole Hearings Act.


16 (5) If a statement is presented under Section 6, the 
17Prisoner Review Board
shall inform the victim of any order of 
18discharge entered by the Board pursuant
to Section 3-3-8 of the 
19Unified Code of Corrections.


20 (6) At the written request of the victim of the crime for 
21which the
prisoner was sentenced or the State's Attorney of the 
22county where the person seeking parole or aftercare release was 
23prosecuted, the Prisoner Review Board shall notify the victim 
24and the State's Attorney of the county where the person seeking 
25parole or aftercare release was prosecuted of
the death of the 
26prisoner if the prisoner died while on parole or aftercare 
 
 
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1release or mandatory
supervised release.


2 (7) When a defendant who has been committed to the 
3Department of
Corrections, the Department of Juvenile Justice, 
4or the Department of Human Services is released or discharged 
5and
subsequently committed to the Department of Human Services 
6as a sexually
violent person and the victim had requested to be 
7notified by the releasing
authority of the defendant's 
8discharge, conditional release, death, or escape from State 
9custody, the releasing
authority shall provide to the 
10Department of Human Services such information
that would allow 
11the Department of Human Services to contact the victim.

12 (8) When a defendant has been convicted of a sex offense as 
13defined in Section 2 of the Sex Offender Registration Act and 
14has been sentenced to the Department of Corrections or the 
15Department of Juvenile Justice, the Prisoner Review Board shall 
16notify the victim of the sex offense of the prisoner's 
17eligibility for release on parole, aftercare release,

18mandatory supervised release, electronic detention, work 
19release, international transfer or exchange, or by the

20custodian of the discharge of any individual who was 
21adjudicated a delinquent
for a sex offense from State custody 
22and by the sheriff of the appropriate
county of any such 
23person's final discharge from county custody. The notification 
24shall be made to the victim at least 30 days, whenever 
25possible, before release of the sex offender. 
26 (e) The officials named in this Section may satisfy some or 
 
 
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1all of their
obligations to provide notices and other 
2information through participation in a
statewide victim and 
3witness notification system established by the Attorney

4General under Section 8.5 of this Act.

5 (f) To permit a victim of a violent crime to provide 
6information to the
Prisoner Review Board for consideration by 
7the
Board at a parole or aftercare release hearing of a person 
8who committed the crime against
the victim in accordance with 
9clause (d)(4) of this Section or at a proceeding
to determine 
10the conditions of mandatory supervised release of a person

11sentenced to a determinate sentence or at a hearing on 
12revocation of mandatory
supervised release of a person 
13sentenced to a determinate sentence, the Board
shall establish 
14a toll-free number that may be accessed by the victim of
a 
15violent crime to present that information to the Board.

16(Source: P.A. 97-457, eff. 1-1-12; 97-572, eff. 1-1-12; 97-813, 
17eff. 7-13-12; 97-815, eff. 1-1-13; 98-372, eff. 1-1-14; 98-558, 
18eff. 1-1-14; revised 9-24-13.)


19 Section 20. The Unified Code of Corrections is amended by 
20changing Section 5-5-3.1 as follows:




21 (730 ILCS 5/5-5-3.1) (from Ch. 38, par. 1005-5-3.1)



22 Sec. 5-5-3.1. Factors in Mitigation. 

23 (a) The following
grounds shall be accorded weight in favor 
24of withholding or
minimizing a sentence of imprisonment:

 
 
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1  (1) The defendant's criminal conduct neither caused 
2 nor
threatened serious physical harm to another. 

3  (2) The defendant did not contemplate that his criminal 
4 conduct would
cause or threaten serious physical harm to 
5 another.

6  (3) The defendant acted under a strong provocation.

7  (4) There were substantial grounds tending to excuse or 
8 justify
the defendant's criminal conduct, though failing 
9 to establish a
defense.

10  (5) The defendant's criminal conduct was induced or 
11 facilitated
by someone other than the defendant.

12  (6) The defendant has compensated or will compensate 
13 the victim
of his criminal conduct for the damage or injury 
14 that he sustained.

15  (7) The defendant has no history of prior delinquency 
16 or
criminal activity or has led a law-abiding life for a 
17 substantial
period of time before the commission of the 
18 present crime.

19  (8) The defendant's criminal conduct was the result of

20 circumstances unlikely to recur.

21  (9) The character and attitudes of the defendant 
22 indicate that he is
unlikely to commit another crime.

23  (10) The defendant is particularly likely to comply 
24 with the terms of
a period of probation.

25  (11) The imprisonment of the defendant would entail 
26 excessive
hardship to his dependents.

 
 
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1  (12) The imprisonment of the defendant would endanger 
2 his or her medical
condition.

3  (13) The defendant was intellectually disabled as 
4 defined in Section 5-1-13 of
this Code.

5  (14) The defendant sought or obtained emergency 
6 medical assistance for an overdose and was convicted of a 
7 Class 3 felony or higher possession, manufacture, or 
8 delivery of a controlled, counterfeit, or look-alike 
9 substance or a controlled substance analog under the 
10 Illinois Controlled Substances Act or a Class 2 felony or 
11 higher possession, manufacture or delivery of 
12 methamphetamine under the Methamphetamine Control and 
13 Community Protection Act.
14  (15) At the time of the offense, the defendant was or 
15 had been the victim of domestic violence and the effects of 
16 the domestic violence tended to excuse or justify the 
17 defendant's criminal conduct. As used in this paragraph 
18 (15), "domestic violence" means "abuse" as defined in 
19 Section 103 of the Illinois Domestic Violence Act of 1986. 
20 (b) If the court, having due regard for the character of 
21the
offender, the nature and circumstances of the offense and 
22the
public interest finds that a sentence of imprisonment is 
23the
most appropriate disposition of the offender, or where 
24other
provisions of this Code mandate the imprisonment of the 
25offender,
the grounds listed in paragraph (a) of this 
26subsection shall be
considered as factors in mitigation of the 
 
 
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1term imposed.

2(Source: P.A. 97-227, eff. 1-1-12; 97-678, eff. 6-1-12; 98-463, 
3eff. 8-16-13.)