Public Act 096-0223
 
SB0048 Enrolled LRB096 04487 RLC 14539 b

    AN ACT concerning torture.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 1. Short title. This Act may be cited as the
Illinois Torture Inquiry and Relief Commission Act.
 
    Section 5. Definitions. As used in this Act:
    (1) "Claim of torture" means a claim on behalf of a living
person convicted of a felony in Illinois asserting that he was
tortured into confessing to the crime for which the person was
convicted and the tortured confession was used to obtain the
conviction and for which there is some credible evidence
related to allegations of torture committed by Commander Jon
Burge or any officer under the supervision of Jon Burge.
    (2) "Commission" means the Illinois Torture Inquiry and
Relief Commission established by this Act.
    (3) "Convicted person" means the person making a claim of
torture under this Act.
    (4) "Director" means the Director of the Illinois Torture
Inquiry and Relief Commission.
    (5) "Victim" means the victim of the crime, or if the
victim of the crime is deceased, the next of kin of the victim,
which shall be the parent, spouse, child, or sibling of the
deceased victim.
 
    Section 10. Purpose of Act. This Act establishes an
extraordinary procedure to investigate and determine factual
claims of torture related to allegations of torture that shall
require an individual to voluntarily waive rights and
privileges as described in this Act.
 
    Section 15. Commission established.
    (a) There is established the Illinois Torture Inquiry and
Relief Commission. The Illinois Torture Inquiry and Relief
Commission shall be an independent commission under the
Illinois Human Rights Commission for administrative purposes.
    (b) The Illinois Human Rights Commission shall provide
administrative support to the Commission as needed. The
Executive Director of the Illinois Human Rights Commission
shall not reduce or modify the budget of the Commission or use
funds appropriated to the Commission without the approval of
the Commission.
 
    Section 20. Membership; chair; meetings; quorum.
    (a) The Commission shall consist of 8 voting members as
follows:
        (1) One shall be a retired Circuit Court Judge.
        (2) One shall be a former prosecuting attorney.
        (3) One shall be a law school professor.
        (4) One shall be engaged in the practice of criminal
    defense law.
        (5) Three shall be members of the public who are not
    attorneys and who are not officers or employees of the
    Judicial branch.
        (6) One shall be a former public defender.
    The members of the Commission shall be appointed by the
Governor, with the advice and consent of the Senate. Members
may be re-appointed for additional terms, as provided for under
Section 25.
    (a-1) The Governor shall also appoint alternate Commission
members for the Commission members he or she has appointed to
serve in the event of scheduling conflicts, conflicts of
interest, disability, or other disqualification arising in a
particular case. Where an alternate member is called upon to
serve in a particular place, the alternate member shall vote in
the place of, and otherwise exercise the same powers as, the
member which he or she is replacing. The alternate member shall
have the same qualifications for appointment as the original
member. In making the appointments, the Governor shall make a
good faith effort to appoint members with different
perspectives of the justice system. The Governor shall also
consider geographical location, gender, and racial diversity
in making the appointments.
    (b) The retired judge who is appointed as a member under
subsection (a) shall serve as Chair of the Commission. The
Commission shall have its initial meeting no later than one
month after the appointment of a quorum of members of the
Commission, at the call of the Chair. The Commission shall meet
a minimum of once every 6 months and may also meet more often
at the call of the Chair. The Commission shall meet at such
time and place as designated by the Chair, in accordance with
the provisions of the Open Meetings Act. Notice of the meetings
shall be given at such time and manner as provided by the rules
of the Commission, in accordance with the provisions of the
Open Meetings Act. A majority of the voting members shall
constitute a quorum. All Commission votes shall be by majority
vote of the voting members appointed.
 
    Section 25. Terms of members; compensation; expenses.
    (a) Of the initial members, the appointments under clauses
(a)(3) and (6) of Section 20 shall be for one-year terms, the
appointments under clauses (a)(1), (2), and (4) of Section 20
shall be for 2-year terms, and the appointments under clause
(a)(5) of Section 20 shall be for 3-year terms. Thereafter, all
terms shall be for 3 years. Members of the Commission shall
serve no more than 2 consecutive 3-year terms plus any initial
term of less than 3 years. Unless provided otherwise by this
Act, all terms of members shall begin on January 1 and end on
December 31.
    Members serving by virtue of elective or appointive office,
may serve only so long as the office holders hold those
respective offices. The Chief Judge of the Cook County Circuit
Court may remove members for good cause shown. Vacancies
occurring before the expiration of a term shall be filled in
the manner provided for the members first appointed.
    (b) The Commission members shall receive no salary for
serving, but may be reimbursed for reasonable expenses incurred
as a result of their duties as members of the Commission from
funds appropriated by the General Assembly for that purpose, or
from funds obtained from sources other than the General
Assembly.
 
    Section 30. Director and other staff. The Commission shall
employ a Director. The Director shall be an attorney licensed
to practice in Illinois at the time of appointment and at all
times during service as Director. The Director shall assist the
Commission in developing rules and standards for cases accepted
for review, coordinate investigation of cases accepted for
review, maintain records for all case investigations, prepare
reports outlining Commission investigations and
recommendations to the trial court, and apply for and accept on
behalf of the Commission any funds that may become available
from government grants, private gifts, donations, or bequests
from any source.
    Subject to the approval of the Chair, the Director shall
employ such other staff and shall contract for services as is
necessary to assist the Commission in the performance of its
duties, and as funds permit.
    The Commission may meet in an area provided by the Illinois
Human Rights Commission, or any other State agency. The
Illinois Human Rights Commission shall provide, directly or
through any other State agency, office space for the Commission
and the Commission staff.
 
    Section 35. Duties. The Commission shall have the
following duties and powers:
    (1) To establish the criteria and screening process to be
used to determine which cases shall be accepted for review.
    (2) To conduct inquiries into claims of torture with
priority to be given to those cases in which the convicted
person is currently incarcerated solely for the crime to which
he or she claims torture by Jon Burge or officers under his
command, or both.
    (3) To coordinate the investigation of cases accepted for
review.
    (4) To maintain records for all case investigations.
    (5) To prepare written reports outlining Commission
investigations and recommendations to the trial court at the
completion of each inquiry.
    (6) To apply for and accept any funds that may become
available for the Commission's work from government grants,
private gifts, donations, or bequests from any source.
 
    Section 40. Claims of torture; waiver of convicted person's
procedural safeguards and privileges; formal inquiry;
notification of the crime victim.
    (a) A claim of torture may be referred to the Commission by
any court, person, or agency. The Commission shall not consider
a claim of torture if the convicted person is deceased. The
determination of whether to grant a formal inquiry regarding
any other claim of torture is in the discretion of the
Commission. The Commission may informally screen and dismiss a
case summarily at its discretion.
    (b) No formal inquiry into a claim of torture shall be made
by the Commission unless the Director or the Director's
designee first obtains a signed agreement from the convicted
person in which the convicted person waives his or her
procedural safeguards and privileges including but not limited
to the right against self-incrimination under the United States
Constitution and the Constitution of the State of Illinois,
agrees to cooperate with the Commission, and agrees to provide
full disclosure regarding inquiry requirements of the
Commission. The waiver under this subsection does not apply to
matters unrelated to a convicted person's claim of torture. The
convicted person shall have the right to advice of counsel
prior to the execution of the agreement and, if a formal
inquiry is granted, throughout the formal inquiry. If counsel
represents the convicted person, then the convicted person's
counsel must be present at the signing of the agreement. If
counsel does not represent the convicted person, the Commission
Chair shall determine the convicted person's indigency status
and, if appropriate, enter an order for the appointment of
counsel for the purpose of advising on the agreement.
    (c) If a formal inquiry regarding a claim of torture is
granted, the Director shall use all due diligence to notify the
victim in the case and explain the inquiry process. The
Commission shall give the victim notice that the victim has the
right to present his or her views and concerns throughout the
Commission's investigation.
    (d) The Commission may use any measure provided in the Code
of Civil Procedure and the Code of Criminal Procedure of 1963
to obtain information necessary to its inquiry. The Commission
may also do any of the following: issue subpoenas or other
process to compel the attendance of witnesses and the
production of evidence, administer oaths, petition the Circuit
Court of Cook County or of the original jurisdiction for
enforcement of process or for other relief, and prescribe its
own rules of procedure. All challenges with regard to the
Commission's authority or the Commission's access to evidence
shall be heard by the Circuit Court of Cook County, including
any in camera review.
    (e) While performing duties for the Commission, the
Director or the Director's designee may serve subpoenas or
other process issued by the Commission throughout the State in
the same manner and with the same effect as an officer
authorized to serve process under the laws of this State.
    (f) All State discovery and disclosure statutes in effect
at the time of formal inquiry shall be enforceable as if the
convicted person were currently being tried for the charge for
which the convicted person is claiming torture.
    (g) If, at any point during an inquiry, the convicted
person refuses to comply with requests of the Commission or is
otherwise deemed to be uncooperative by the Commission, the
Commission shall discontinue the inquiry.
 
    Section 45. Commission proceedings.
    (a) At the completion of a formal inquiry, all relevant
evidence shall be presented to the full Commission. As part of
its proceedings, the Commission may conduct hearings. The
determination as to whether to conduct hearings is solely in
the discretion of the Commission. Any hearing held in
accordance with this Section shall be a public hearing and
shall be held subject to the Commission's rules of operation,
and conducted pursuant to the Open Meetings Act.
    (b) The Director shall use all due diligence to notify the
victim at least 30 days prior to any proceedings of the full
Commission held in regard to the victim's case. The Commission
shall notify the victim that the victim is permitted to attend
proceedings otherwise closed to the public, subject to any
limitations imposed by this Act, and subject to Section
2(c)(14) of the Open Meetings Act. If the victim plans to
attend proceedings otherwise closed to the public, the victim
shall notify the Commission at least 10 days in advance of the
proceedings of his or her intent to attend. The Commission may
close any portion of the proceedings to the victim, if the
victim is to testify and the Commission determines that the
victim's testimony would be materially affected if the victim
hears other testimony at the proceeding.
    (c) After hearing the evidence, the full Commission shall
vote to establish further case disposition as provided by this
subsection. All 8 voting members of the Commission shall
participate in that vote.
    If 5 or more of the 8 voting members of the Commission
conclude by a preponderance of the evidence that there is
sufficient evidence of torture to merit judicial review, the
case shall be referred to the Chief Judge of the Circuit Court
of Cook County by filing with the clerk of court the opinion of
the Commission with supporting findings of fact, as well as the
record in support of such opinion, with service on the State's
Attorney in non-capital cases and service on both the State's
Attorney and Attorney General in capital cases.
    If less than 5 of the 8 voting members of the Commission
conclude by a preponderance of the evidence that there is
sufficient evidence of torture to merit judicial review, the
Commission shall conclude there is insufficient evidence of
torture to merit judicial review. The Commission shall document
that opinion, along with supporting findings of fact, and file
those documents and supporting materials with the court clerk
in the circuit of original jurisdiction, with a copy to the
State's Attorney and the chief judge.
    The Director of the Commission shall use all due diligence
to notify immediately the victim of the Commission's conclusion
in a case.
    (d) Evidence of criminal acts, professional misconduct, or
other wrongdoing disclosed through formal inquiry or
Commission proceedings shall be referred to the appropriate
authority. Evidence favorable to the convicted person
disclosed through formal inquiry or Commission proceedings
shall be disclosed to the convicted person and the convicted
person's counsel, if the convicted person has counsel. The
Commission shall have the discretion to refer its findings
together with the supporting record and evidence, to such other
parties or entities as the Commission in its discretion shall
deem appropriate.
    (e) All proceedings of the Commission shall be recorded and
transcribed as part of the record. All Commission member votes
shall be recorded in the record. All records of the Commission
shall be confidential until the proceedings before the
Commission are concluded and a final decision has been made by
the Commission.
 
    Section 50. Post-commission judicial review.
    (a) If the Commission concludes there is sufficient
evidence of torture to merit judicial review, the Chair of the
Commission shall request the Chief Judge of the Circuit Court
of Cook County for assignment to a trial judge for
consideration. The court may receive proof by affidavits,
depositions, oral testimony, or other evidence. In its
discretion the court may order the petitioner brought before
the court for the hearing. Notwithstanding the status of any
other postconviction proceedings relating to the petitioner,
if the court finds in favor of the petitioner, it shall enter
an appropriate order with respect to the judgment or sentence
in the former proceedings and such supplementary orders as to
rearraignment, retrial, custody, bail or discharge, or for such
relief as may be granted under a petition for a certificate of
innocence, as may be necessary and proper.
    (b) The State's Attorney, or the State's Attorney's
designee, shall represent the State at the hearing before the
assigned judge.
 
    Section 55. No right to further review of decision by
Commission; convicted person retains right to other
postconviction relief.
    (a) Unless otherwise authorized by this Act, the decisions
of the Commission are final and are subject to review as final
decisions under the provisions of the Administrative Review
Law, and shall only be overturned if the court finds that they
are against the manifest weight of the evidence.
    (b) A claim of torture asserted through the Commission
shall not adversely affect the convicted person's rights to
other postconviction relief.
 
    Section 60. Report. Beginning January 1, 2010, and annually
thereafter, the Illinois Torture Inquiry and Relief Commission
shall report on its activities to the General Assembly and the
Governor. The report may contain recommendations of any needed
legislative changes related to the activities of the
Commission. The report shall recommend the funding needed by
the Commission, the State's Attorneys, and the Department of
State Police in order to meet their responsibilities under this
Act. Recommendations concerning the State's Attorneys or the
Department of State Police shall only be made after
consultations with the Illinois State's Attorneys Association,
the Department of State Police, and the Attorney General.
 
    Section 65. Appointment period. The initial members of the
Illinois Torture Inquiry and Relief Commission shall be
appointed not later than 3 months after the effective date of
this Act. No claims of torture may be filed with the Commission
until a quorum of members have been appointed.
 
    Section 70. Filing of claims. This Act applies to claims of
torture filed not later than 5 years after the effective date
of this Act.
 
    Section 99. Effective date. This Act takes effect upon
becoming law.