State of Illinois
90th General Assembly
Legislation

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90_HB2138ham001

                                           LRB9005387WHmgam04
 1                    AMENDMENT TO HOUSE BILL 2138
 2        AMENDMENT NO.     .  Amend House Bill 2138  by  replacing
 3    the title with the following:
 4        "AN ACT in relation to scientific testing, amending named
 5    Acts."; and
 6    by  replacing  everything  after the enacting clause with the
 7    following:
 8        "Section 5.  The Code of Criminal Procedure  of  1963  is
 9    amended by adding Section 116-3 as follows:
10        (725 ILCS 5/116-3 new)
11        Sec.  116-3.  Motion  for fingerprint or forensic testing
12    not available at trial regarding actual innocence.
13        (a)  A defendant may make a motion before the trial court
14    that entered the judgment of conviction in his  or  her  case
15    for the performance of fingerprint or forensic DNA testing on
16    evidence  that  was  secured  in  relation to the trial which
17    resulted in his or her conviction, but which was not  subject
18    to  the testing which is now requested because the technology
19    for the testing was not  available  at  the  time  of  trial.
20    Reasonable  notice  of  the  motion  shall be served upon the
21    State.
                            -2-            LRB9005387WHmgam04
 1        (b)  The defendant must present a prima facie case that:
 2             (1)  identity was  the  issue  in  the  trial  which
 3        resulted in his or her conviction; and
 4             (2)  the evidence to be tested has been subject to a
 5        chain  of custody sufficient to establish that it has not
 6        been substituted, tampered with, replaced, or altered  in
 7        any material aspect.
 8        (c)  The  trial  court  shall  allow  the  testing  under
 9    reasonable   conditions   designed  to  protect  the  State's
10    interests in the integrity of the evidence  and  the  testing
11    process upon a determination that:
12             (1)  the  result  of  the testing has the scientific
13        potential  to   produce   new,   noncumulative   evidence
14        materially  relevant  to  the  defendant's  assertion  of
15        actual innocence;
16             (2)  the  testing  requested  employs  a  scientific
17        method  generally accepted within the relevant scientific
18        community.
19        Section 7.  The Unified Code of Corrections is amended by
20    changing Section 3-6-3 as follows:
21        (730 ILCS 5/3-6-3) (from Ch. 38, par. 1003-6-3)
22        Sec. 3-6-3.  Rules and Regulations for Early Release.
23        (a)(1)  The Department  of  Corrections  shall  prescribe
24        rules and regulations for the early release on account of
25        good conduct of persons committed to the Department which
26        shall be subject to review by the Prisoner Review Board.
27             (2)  The  rules  and  regulations  on  early release
28        shall provide, with respect to offenses committed  on  or
29        after  the effective date of this amendatory Act of 1995,
30        the following:
31                  (i)  that a prisoner who is serving a  term  of
32             imprisonment  for  first degree murder shall receive
                            -3-            LRB9005387WHmgam04
 1             no good conduct credit and shall  serve  the  entire
 2             sentence imposed by the court;
 3                  (ii)  that  a  prisoner  serving a sentence for
 4             attempt to commit first degree murder,  solicitation
 5             of   murder,   solicitation   of  murder  for  hire,
 6             intentional homicide of an unborn  child,  predatory
 7             criminal  sexual  assault  of  a  child,  aggravated
 8             criminal  sexual  assault,  criminal sexual assault,
 9             aggravated kidnapping,  aggravated  battery  with  a
10             firearm,  heinous  battery,  aggravated battery of a
11             senior citizen, or aggravated  battery  of  a  child
12             shall  receive no more than 4.5 days of good conduct
13             credit for each month of  his  or  her  sentence  of
14             imprisonment; and
15                  (iii)  that  a  prisoner serving a sentence for
16             home invasion, armed robbery,  aggravated  vehicular
17             hijacking,  aggravated  discharge  of  a firearm, or
18             armed violence with a category I weapon or  category
19             II  weapon,  when  the  court has made and entered a
20             finding, pursuant to  subsection  (c-1)  of  Section
21             5-4-1  of  this  Code,  that  the conduct leading to
22             conviction for the enumerated  offense  resulted  in
23             great bodily harm to a victim, shall receive no more
24             than  4.5 days of good conduct credit for each month
25             of his or her sentence of imprisonment.
26             (2.1)  For all offenses, other than those enumerated
27        in subdivision (a)(2) committed on or after the effective
28        date of this  amendatory  Act  of  1995,  the  rules  and
29        regulations  shall provide that a prisoner who is serving
30        a term of imprisonment shall  receive  one  day  of  good
31        conduct  credit  for  each  day of his or her sentence of
32        imprisonment or recommitment under  Section  3-3-9.  Each
33        day  of  good  conduct credit shall reduce by one day the
34        prisoner's period of imprisonment or  recommitment  under
                            -4-            LRB9005387WHmgam04
 1        Section 3-3-9.
 2             (2.2)  A  prisoner  serving  a  term of natural life
 3        imprisonment or a prisoner  who  has  been  sentenced  to
 4        death shall receive no good conduct credit.
 5             (3)  The  rules  and  regulations shall also provide
 6        that the Director may award up  to  180  days  additional
 7        good  conduct  credit for meritorious service in specific
 8        instances as the Director deems proper;  except  that  no
 9        more  than 90 days of good conduct credit for meritorious
10        service shall be awarded to any prisoner who is serving a
11        sentence for conviction of first degree murder,  reckless
12        homicide  while  under  the  influence  of alcohol or any
13        other drug, aggravated kidnapping, kidnapping,  predatory
14        criminal  sexual  assault of a child, aggravated criminal
15        sexual assault, criminal sexual assault,  deviate  sexual
16        assault,  aggravated  criminal  sexual  abuse, aggravated
17        indecent liberties with a child, indecent liberties  with
18        a  child,  child pornography, heinous battery, aggravated
19        battery of a spouse, aggravated battery of a spouse  with
20        a  firearm,  stalking,  aggravated  stalking,  aggravated
21        battery  of  a child, endangering the life or health of a
22        child, cruelty to  a  child,  or  narcotic  racketeering.
23        Notwithstanding  the  foregoing,  good conduct credit for
24        meritorious service shall not be awarded on a sentence of
25        imprisonment  imposed  for  conviction  of  one  of   the
26        offenses   enumerated  in  subdivision  (a)(2)  when  the
27        offense is committed on or after the  effective  date  of
28        this amendatory Act of 1995.
29             (4)  The  rules  and  regulations shall also provide
30        that the good conduct  credit  accumulated  and  retained
31        under  paragraph  (2.1) of subsection (a) of this Section
32        by any inmate during specific periods of  time  in  which
33        such  inmate  is  engaged  full-time  in  substance abuse
34        programs,   correctional   industry    assignments,    or
                            -5-            LRB9005387WHmgam04
 1        educational  programs  provided  by  the Department under
 2        this  paragraph  (4)  and  satisfactorily  completes  the
 3        assigned program as determined by the  standards  of  the
 4        Department,  shall  be multiplied by a factor of 1.25 for
 5        program participation before the effective date  of  this
 6        amendatory Act of 1993 and 1.50 for program participation
 7        on  or  after  that  date.    However, no inmate shall be
 8        eligible for the additional  good  conduct  credit  under
 9        this  paragraph (4) while assigned to a boot camp, mental
10        health unit, or electronic detention, or if convicted  of
11        an offense enumerated in paragraph (a)(2) of this Section
12        that  is committed on or after the effective date of this
13        amendatory Act of 1995, or first degree murder, a Class X
14        felony, criminal sexual assault, felony  criminal  sexual
15        abuse,   aggravated  criminal  sexual  abuse,  aggravated
16        battery with a firearm, or any predecessor  or  successor
17        offenses   with   the  same  or  substantially  the  same
18        elements,  or  any  inchoate  offenses  relating  to  the
19        foregoing offenses.  No inmate shall be eligible for  the
20        additional  good  conduct credit under this paragraph (4)
21        who (i) has previously received  increased  good  conduct
22        credit under this paragraph (4) and has subsequently been
23        convicted of a felony, or (ii) has previously served more
24        than  one  prior sentence of imprisonment for a felony in
25        an adult correctional facility.
26             Educational,   vocational,   substance   abuse   and
27        correctional industry programs under which  good  conduct
28        credit may be increased under this paragraph (4) shall be
29        evaluated  by  the  Department on the basis of documented
30        standards.  The Department shall report  the  results  of
31        these   evaluations  to  the  Governor  and  the  General
32        Assembly by September 30th of  each  year.   The  reports
33        shall  include data relating to the recidivism rate among
34        program participants.
                            -6-            LRB9005387WHmgam04
 1             Availability of these programs shall be  subject  to
 2        the  limits  of  fiscal  resources  appropriated  by  the
 3        General  Assembly  for  these purposes.  Eligible inmates
 4        who are denied immediate admission shall be placed  on  a
 5        waiting   list   under   criteria   established   by  the
 6        Department. The inability of any inmate to become engaged
 7        in any such programs by reason  of  insufficient  program
 8        resources  or  for any other reason established under the
 9        rules and regulations of  the  Department  shall  not  be
10        deemed  a  cause  of action under which the Department or
11        any employee or agent of the Department shall  be  liable
12        for damages to the inmate.
13             (5)  Whenever  the  Department  is  to  release  any
14        inmate earlier than it otherwise would because of a grant
15        of  good  conduct credit for meritorious service given at
16        any time during  the  term,  the  Department  shall  give
17        reasonable advance notice of the impending release to the
18        State's  Attorney  of the county where the prosecution of
19        the inmate took place.
20        (b)  Whenever a person is or  has  been  committed  under
21    several  convictions,  with separate sentences, the sentences
22    shall be  construed  under  Section  5-8-4  in  granting  and
23    forfeiting of good time.
24        (c)  The Department shall prescribe rules and regulations
25    for  revoking  good conduct credit, or suspending or reducing
26    the rate of accumulation of good conduct credit for  specific
27    rule   violations,  during  imprisonment.   These  rules  and
28    regulations shall provide that no  inmate  may  be  penalized
29    more  than  one  year  of  good  conduct  credit  for any one
30    infraction.
31        When the Department seeks to revoke,  suspend  or  reduce
32    the  rate  of accumulation of any good conduct credits for an
33    alleged infraction of  its  rules,  it  shall  bring  charges
34    therefor  against  the  prisoner  sought to be so deprived of
                            -7-            LRB9005387WHmgam04
 1    good conduct credits before  the  Prisoner  Review  Board  as
 2    provided  in  subparagraph  (a)(4)  of  Section 3-3-2 of this
 3    Code, if the amount of credit at issue  exceeds  30  days  or
 4    when  during  any  12  month period, the cumulative amount of
 5    credit revoked exceeds 30 days except where the infraction is
 6    committed or discovered within 60 days of scheduled  release.
 7    In  those  cases, the Department of Corrections may revoke up
 8    to 30 days of good conduct credit. The Board may subsequently
 9    approve the revocation of additional good conduct credit,  if
10    the  Department seeks to revoke good conduct credit in excess
11    of 30 days.  However, the Board shall  not  be  empowered  to
12    review  the Department's decision with respect to the loss of
13    30 days of good conduct credit within any calendar  year  for
14    any  prisoner  or  to  increase any penalty beyond the length
15    requested by the Department.
16        The  Director  of  the  Department  of  Corrections,   in
17    appropriate  cases,  may  restore  up to 30 days good conduct
18    credits which have been revoked, suspended  or  reduced.  Any
19    restoration  of  good  conduct  credits  in excess of 30 days
20    shall be subject to review  by  the  Prisoner  Review  Board.
21    However,  the  Board  may  not restore good conduct credit in
22    excess of the amount requested by the Director.
23        Nothing contained in  this  Section  shall  prohibit  the
24    Prisoner  Review  Board  from  ordering,  pursuant to Section
25    3-3-9(a)(3)(i)(B), that a prisoner serve up to  one  year  of
26    the  sentence imposed by the court that was not served due to
27    the accumulation of good conduct credit.
28        (d)  If a lawsuit is filed by a prisoner in  an  Illinois
29    or  federal  court  against  the  State,  the  Department  of
30    Corrections,  or the Prisoner Review Board, or against any of
31    their officers or employees, and the court makes  a  specific
32    finding  that a pleading, motion, or other paper filed by the
33    prisoner is frivolous, the Department  of  Corrections  shall
34    conduct  a  hearing  to revoke up to 180 days of good conduct
                            -8-            LRB9005387WHmgam04
 1    credit by bringing charges against the prisoner sought to  be
 2    deprived  of  the  good  conduct  credits before the Prisoner
 3    Review Board as provided in subparagraph  (a)(8)  of  Section
 4    3-3-2  of  this Code. If the prisoner has not accumulated 180
 5    days of good conduct credit at the time of the finding,  then
 6    the  Prisoner Review Board may revoke all good conduct credit
 7    accumulated by the prisoner.
 8        For purposes of this subsection (d):
 9             (1)  "Frivolous" means that a pleading,  motion,  or
10        other  paper  filed  by  a prisoner in his or her lawsuit
11        does not meet the following criteria:
12                  (A)  it is not being presented for any improper
13             purpose, such as to harass or to  cause  unnecessary
14             delay   or   needless   increase   in  the  cost  of
15             litigation;
16                  (B)  the  claims,  defenses,  and  other  legal
17             contentions therein are warranted by existing law or
18             by  a  nonfrivolous  argument  for  the   extension,
19             modification,  or  reversal  of  existing law or the
20             establishment of new law;
21                  (C)  the   allegations   and   other    factual
22             contentions   have   evidentiary   support   or,  if
23             specifically  so  identified,  are  likely  to  have
24             evidentiary support after a  reasonable  opportunity
25             for further investigation or discovery; and
26                  (D)  the  denials  of  factual  contentions are
27             warranted on the evidence  or,  if  specifically  so
28             identified,  are  reasonably  based  on  a  lack  of
29             information or belief.
30             (2)  "Lawsuit"  means a petition for post conviction
31        relief  under  Article  122  of  the  Code  of   Criminal
32        Procedure  of 1963, a motion pursuant to Section 116-3 of
33        the Code of Criminal Procedure of 1963, a  habeas  corpus
34        action  under Article X of the Code of Civil Procedure or
                            -9-            LRB9005387WHmgam04
 1        under federal law (28 U.S.C. 2254), a petition for  claim
 2        under  the  Court  of  Claims  Act or an action under the
 3        federal Civil Rights Act (42 U.S.C. 1983).
 4    (Source: P.A. 88-311; 88-402; 88-670, eff.  12-2-94;  89-404,
 5    eff.  8-20-95;  89-428,  eff. 12-13-95; 89-462, eff. 5-29-96;
 6    89-656, eff. 1-1-97.)
 7        Section 10.  The Code of Civil Procedure  is  amended  by
 8    changing Section 2-1401 as follows:
 9        (735 ILCS 5/2-1401) (from Ch. 110, par. 2-1401)
10        Sec.  2-1401.  Relief  from  judgments.   (a) Relief from
11    final orders and judgments, after  30  days  from  the  entry
12    thereof,  may  be  had  upon  petition  as  provided  in this
13    Section. Writs of error coram nobis and coram vobis, bills of
14    review and bills  in  the  nature  of  bills  of  review  are
15    abolished.   All relief heretofore obtainable and the grounds
16    for such relief heretofore available, whether by any  of  the
17    foregoing  remedies or otherwise, shall be available in every
18    case, by proceedings hereunder, regardless of the  nature  of
19    the  order  or judgment from which relief is sought or of the
20    proceedings in which it  was  entered.   There  shall  be  no
21    distinction  between actions and other proceedings, statutory
22    or otherwise, as  to  availability  of  relief,  grounds  for
23    relief or the relief obtainable.
24        (b)  The petition must be filed in the same proceeding in
25    which  the  order  or  judgment   was  entered  but  is not a
26    continuation thereof.  The  petition  must  be  supported  by
27    affidavit  or  other appropriate showing as to matters not of
28    record.  All parties to the petition  shall  be  notified  as
29    provided by rule.
30        (c)  Except  as  provided  in Section 20b of the Adoption
31    Act or in a petition based upon Section 116-3 of the Code  of
32    Criminal  Procedure  of  1963, the petition must be filed not
                            -10-           LRB9005387WHmgam04
 1    later than 2 years after the entry of the order or  judgment.
 2    Time  during  which  the person seeking relief is under legal
 3    disability or duress or the ground for relief is fraudulently
 4    concealed shall be excluded in  computing  the  period  of  2
 5    years.
 6        (d)  The filing of a petition under this Section does not
 7    affect the order or judgment, or suspend its operation.
 8        (e)  Unless  lack  of  jurisdiction affirmatively appears
 9    from the record proper, the vacation or  modification  of  an
10    order  or judgment pursuant to the provisions of this Section
11    does not affect the right, title or interest  in  or  to  any
12    real  or  personal property of any person, not a party to the
13    original action, acquired for value after the  entry  of  the
14    order or judgment  but before the filing of the petition, nor
15    affect  any  right  of any person not a party to the original
16    action under any certificate of sale issued before the filing
17    of the petition, pursuant to a sale based  on  the  order  or
18    judgment.
19        (f)  Nothing   contained  in  this  Section  affects  any
20    existing right to relief from a void order or judgment, or to
21    employ any existing method to procure that relief.
22    (Source: P.A. 88-550, eff. 7-3-94.)".

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