HB3964 103RD GENERAL ASSEMBLY

LRB103 28832 RLC 55217 b

103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
HB3964

Introduced 2/17/2023, by Rep. Kelly M. Cassidy

SYNOPSIS AS INTRODUCED:

730 ILCS 5/5-4.5-120 new

Amends the Unified Code of Corrections. Provides that a person imprisoned in the penitentiary may, after serving 10 years or more of his or her sentence or cumulative sentences, submit a petition for sentencing review in the circuit court of the county in which he or she was originally sentenced. Provides at the sentencing review hearing the court shall consider various mitigating factors. Provides that following the hearing, the court may affirm or reduce the petitioner's sentence and may depart downward from any mandatory minimum or mandatory sentence enhancement, taking into consideration certain factors. Provides that these provisions shall operate retroactively to provide any person incarcerated for a crime or crimes committed, before the effective date of the amendatory Act, with the opportunity to file a motion for resentencing under these provisions under the terms provided in these provisions. Provides that notwithstanding any other provision to the contrary, nothing in these provisions shall be construed to delay parole or mandatory supervised release consideration for petitioners who, prior to the effective date of the amendatory Act, are or will be eligible for release earlier than provided for in these provisions. Provides that the clerk of the court shall transmit copies of the petitions, any amendments to the petition, and the final orders to the Illinois Sentencing Policy Advisory Council. Provides that the Illinois Sentencing Policy Advisory Council shall report to the Governor and the General Assembly on the impact of resentencing motions on the prison population contingent on having sufficient reliable data to support the analysis. Provides that the report shall be filed no later than 3 years after the effective date of the amendatory Act.

A BILL FOR

AN ACT concerning criminal law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Unified Code of Corrections is amended by adding Section 5-4.5-120 as follows:

(730 ILCS 5/5-4.5-120 new)

Sec. 5-4.5-120. Sentencing review of incarcerated individuals. Any person imprisoned in the penitentiary may, after serving 10 years or more of his or her sentence or cumulative sentences, submit a petition for sentencing review in the circuit court of the county in which he or she was originally sentenced. The procedure for sentencing review shall occur in the following manner:

(1) The chief judge of the criminal division of the circuit located in a county of 2,000,000 or more inhabitants, or in counties under 2,000,000 inhabitants, the chief judge of the circuit or a judge assigned by the chief judge, in which the petition is filed, shall assign the matter to any judge.

(2) Upon receipt of the petition and assignment to a judge, the judge has 30 days to determine if the petitioner has sought filing in the appropriate court and has served 10 or more years of his or her sentence. If the court determines that either of those factors are not satisfied, it shall dismiss the petition and notify the petitioner of the reason for the dismissal. This notification shall be served upon the petitioner by certified mail within 10 days of its entry. If the court determines the petition was appropriately filed, it shall docket the petition. If the petitioner is without counsel and alleges in the petition for sentencing review that he or she is without means to procure counsel, he or she shall state whether or not he or she wishes counsel to be appointed to represent him or her. If appointment of counsel is requested, the court shall appoint counsel if satisfied that the petitioner has no means to procure counsel. The clerk of the circuit court shall serve a copy of the petition to the State's Attorney of that county or his or her representative.

(3) Upon receipt of the petition for sentencing review, the State's Attorney's Office shall provide the victim or his or her family, or both, with a copy of the petition, and notice of any restorative justice programs available.

(4) The petitioner, if pro se, or his or her attorney may amend the petition for sentencing review.

(5) The State's Attorney must be afforded an opportunity to respond to the petition and the court shall provide the petitioner with the opportunity to reply.

(6) Within 90 days after the filing of the petition for sentencing review, the court shall set the matter for a hearing. This date may be extended by motion of either party and at the court's discretion for good cause shown.

(7) At the sentencing review hearing, the court shall:

(A) consider in mitigation the factors listed in paragraphs (A) through (K) of paragraph (8) of this Section;

(B) consider the evidence, if any, received at trial;

(C) consider any presentence reports;

(D) consider the financial impact of incarceration based on the financial impact statement filed with the clerk of the court by the Department of Corrections;

(E) consider any additional evidence and information offered by the parties in aggravation and mitigation, including, but not limited to, scientific evidence of recidivism;

(F) consider the person's overall record of behavior while incarcerated, including disciplinary history, participation in educational and vocational programs available to the petitioner, including but not limited to restorative justice programs, and extent of cooperation with staff;

(G) hear arguments as to sentencing alternatives;

(H) afford the petitioner the opportunity to make a statement on his or her behalf without being subject to cross-examination;

(I) afford the victim or families of victims of the crime, or both, for which the petitioner was originally sentenced an opportunity to provide a victim impact statement to the court. The court shall permit those statements and consider the live testimony of a victim or a victim representative.

(8) Following the hearing, the court may affirm or reduce the petitioner's sentence and shall be authorized to depart downward from any mandatory minimum or mandatory sentence enhancement, taking into consideration the following factors:

(A) the petitioner's current age, as well as the petitioner's age, impetuosity, and level of maturity at the time of the offense, including the ability to consider risks and consequences of behavior, and the presence of cognitive or developmental disability, if any;

(B) whether the petitioner was subjected to outside pressure, including peer pressure, familial pressure, or negative influences;

(C) the petitioner's family and community circumstances, home environment, educational and social background, including any history of parental neglect, physical, mental, or sexual abuse, involvement in the child welfare system, or other childhood trauma;

(D) the nature and circumstances of the offense;

(E) the petitioner's degree of participation and specific role in the offense, including the level of planning by the defendant before the offense;

(F) whether the petitioner was able to meaningfully participate in his or her defense;

(G) the petitioner's prior juvenile or criminal history;

(H) the history and characteristics of the petitioner at the time of the petition, including rehabilitation and maturity demonstrated by the petitioner;

(I) any report from a physical, mental, or psychiatric examination of the petitioner conducted by a licensed health professional;

(J) any changes to the law governing criminal convictions, dispositions, or length of stay since the time of sentencing; and

(K) any other information the court finds relevant and reliable, including an expression of remorse, if appropriate. However, if the petitioner, on advice of counsel chooses not to make a statement, the court shall not consider a lack of an expression of remorse as an aggravating factor.

The order following a sentencing review hearing is a final judgment. Any final judgment entered upon the petition shall be reviewed in a manner pursuant to the rules of the Supreme Court.

(9) Notwithstanding any provision of this Section to the contrary, any offender who has petitioned the circuit court for sentencing review pursuant to this Section shall not be eligible to submit a second petition until at least 5 years have elapsed since the date on which the circuit court ruled upon the initial petition. In considering the second petition, the court shall follow the procedure stated in paragraphs (2) through (8) of this Section. Following a hearing on the second petition pursuant to this paragraph (9), the court may affirm or reduce the petitioner's sentence. The order following a hearing pursuant to this paragraph is a final judgment.

(10) The petitioner may file a motion seeking leave for sentencing review when 5 years have elapsed since the date on which the circuit court ruled on a petition filed pursuant to paragraph (9) of this section. The motion must clearly set forth the need for sentencing review, including the efforts the petitioner has made towards rehabilitation and his or her demonstrated maturity.

(A) Within 90 days after the filing of this motion, the court shall examine the motion and enter an order thereon. In considering a motion under this paragraph, the court may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in that proceeding, any transcripts of that proceeding, and any transcript or court documents from previous proceedings under this Section. If the court determines the motion is frivolous or is patently without merit, it shall deny the motion in a written order, specifying the underlying basis for its decision that continued incarceration is appropriate and necessary. The order is a final judgment and shall be served upon the petitioner by certified mail within 10 days of its entry.

(B) If the petition is not dismissed under subparagraph (A), the court shall order the motion for sentencing review to be docketed for further consideration in accordance with the procedure stated in paragraphs (2) through (8) of this Section.

(11) This Section shall operate retroactively to provide any person incarcerated for a crime or crimes committed, before the effective date of this amendatory Act of the 103rd General Assembly, with the opportunity to file a motion for resentencing under this Section under the terms provided in this Section.

(12) Notwithstanding any other provision of this Section to the contrary, nothing in this Section shall be construed to delay parole or mandatory supervised release consideration for petitioners who, prior to the effective date of this amendatory Act of the 103rd General Assembly, are or will be eligible for release earlier than this Section provides.

(13) The clerk of the court shall transmit copies of the petitions, any amendments to the petition, and the final orders to the Illinois Sentencing Policy Advisory Council. The Illinois Sentencing Policy Advisory Council shall report to the Governor and the General Assembly on the impact of resentencing motions on the prison population contingent on having sufficient reliable data to support the analysis. The report shall be filed no later than 3 years after the effective date of this amendatory Act of the 103rd General Assembly.