SB3406 96TH GENERAL ASSEMBLY

LRB096 18825 RLC 34211 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
SB3406

Introduced 2/10/2010, by Sen. Kwame Raoul

SYNOPSIS AS INTRODUCED:

705 ILCS 405/5-615
705 ILCS 405/5-715

Amends the Juvenile Court Act of 1987. Eliminates the provision that the State's Attorney may object to a court order of continuance under supervision. Provides that at the successful completion of probation of a first time offender only, a minor may move to vacate a finding of delinquency. Provides that unless good cause is shown, such motion to vacate must be filed within 30 days of the entry of the order terminating probation or discharging the minor. Establishes conditions and factors under which a court may vacate a finding of delinquency. Provides that once a motion to vacate a finding of delinquency has been granted, the case shall be treated as if it never occurred and, the person may not be required to disclose that he or she had a juvenile record. Provides that the amendatory Act shall govern all motions pending at the time of its effective date. Effective immediately.

A BILL FOR

AN ACT concerning courts.

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

Section 5. The Juvenile Court Act of 1987 is amended by changing Sections 5-615 and 5-715 as follows:

(705 ILCS 405/5-615)

Sec. 5-615. Continuance under supervision.

(1) The court may enter an order of continuance under supervision for an offense other than first degree murder, a Class X felony or a forcible felony (a) upon an admission or stipulation by the appropriate respondent or minor respondent of the facts supporting the petition and before proceeding to adjudication, or after hearing the evidence at the trial, and (b) in the absence of objection made in open court by the minor, his or her parent, guardian, or legal custodian, or the minor's attorney or the State's Attorney.

(2) If the minor, his or her parent, guardian, or legal custodian, or the minor's attorney or State's Attorney objects in open court to any continuance and insists upon proceeding to findings and adjudication, the court shall so proceed.

(3) Nothing in this Section limits the power of the court to order a continuance of the hearing for the production of additional evidence or for any other proper reason.

(4) When a hearing where a minor is alleged to be a delinquent is continued pursuant to this Section, the period of continuance under supervision may not exceed 24 months. The court may terminate a continuance under supervision at any time if warranted by the conduct of the minor and the ends of justice.

(5) When a hearing where a minor is alleged to be delinquent is continued pursuant to this Section, the court may, as conditions of the continuance under supervision, require the minor to do any of the following:

(a) not violate any criminal statute of any jurisdiction;

(b) make a report to and appear in person before any person or agency as directed by the court;

(c) work or pursue a course of study or vocational training;

(d) undergo medical or psychotherapeutic treatment rendered by a therapist licensed under the provisions of the Medical Practice Act of 1987, the Clinical Psychologist Licensing Act, or the Clinical Social Work and Social Work Practice Act, or an entity licensed by the Department of Human Services as a successor to the Department of Alcoholism and Substance Abuse, for the provision of drug addiction and alcoholism treatment;

(e) attend or reside in a facility established for the instruction or residence of persons on probation;

(f) support his or her dependents, if any;

(g) pay costs;

(h) refrain from possessing a firearm or other dangerous weapon, or an automobile;

(i) permit the probation officer to visit him or her at his or her home or elsewhere;

(j) reside with his or her parents or in a foster home;

(k) attend school;

(k-5) with the consent of the superintendent of the facility, attend an educational program at a facility other than the school in which the offense was committed if he or she committed a crime of violence as defined in Section 2 of the Crime Victims Compensation Act in a school, on the real property comprising a school, or within 1,000 feet of the real property comprising a school;

(l) attend a non-residential program for youth;

(m) contribute to his or her own support at home or in a foster home;

(n) perform some reasonable public or community service;

(o) make restitution to the victim, in the same manner and under the same conditions as provided in subsection (4) of Section 5-710, except that the "sentencing hearing" referred to in that Section shall be the adjudicatory hearing for purposes of this Section;

(p) comply with curfew requirements as designated by the court;

(q) refrain from entering into a designated geographic area except upon terms as the court finds appropriate. The terms may include consideration of the purpose of the entry, the time of day, other persons accompanying the minor, and advance approval by a probation officer;

(r) refrain from having any contact, directly or indirectly, with certain specified persons or particular types of persons, including but not limited to members of street gangs and drug users or dealers;

(r-5) undergo a medical or other procedure to have a tattoo symbolizing allegiance to a street gang removed from his or her body;

(s) refrain from having in his or her body the presence of any illicit drug prohibited by the Cannabis Control Act, the Illinois Controlled Substances Act, or the Methamphetamine Control and Community Protection Act, unless prescribed by a physician, and submit samples of his or her blood or urine or both for tests to determine the presence of any illicit drug; or

(t) comply with any other conditions as may be ordered by the court.

(6) A minor whose case is continued under supervision under subsection (5) shall be given a certificate setting forth the conditions imposed by the court. Those conditions may be reduced, enlarged, or modified by the court on motion of the probation officer or on its own motion, or that of the State's Attorney, or, at the request of the minor after notice and hearing.

(7) If a petition is filed charging a violation of a condition of the continuance under supervision, the court shall conduct a hearing. If the court finds that a condition of supervision has not been fulfilled, the court may proceed to findings and adjudication and disposition. The filing of a petition for violation of a condition of the continuance under supervision shall toll the period of continuance under supervision until the final determination of the charge, and the term of the continuance under supervision shall not run until the hearing and disposition of the petition for violation; provided where the petition alleges conduct that does not constitute a criminal offense, the hearing must be held within 30 days of the filing of the petition unless a delay shall continue the tolling of the period of continuance under supervision for the period of the delay.

(8) When a hearing in which a minor is alleged to be a delinquent for reasons that include a violation of Section 21-1.3 of the Criminal Code of 1961 is continued under this Section, the court shall, as a condition of the continuance under supervision, require the minor to perform community service for not less than 30 and not more than 120 hours, if community service is available in the jurisdiction. The community service shall include, but need not be limited to, the cleanup and repair of the damage that was caused by the alleged violation or similar damage to property located in the municipality or county in which the alleged violation occurred. The condition may be in addition to any other condition.

(8.5) When a hearing in which a minor is alleged to be a delinquent for reasons that include a violation of Section 3.02 or Section 3.03 of the Humane Care for Animals Act or paragraph (d) of subsection (1) of Section 21-1 of the Criminal Code of 1961 is continued under this Section, the court shall, as a condition of the continuance under supervision, require the minor to undergo medical or psychiatric treatment rendered by a psychiatrist or psychological treatment rendered by a clinical psychologist. The condition may be in addition to any other condition.

(9) When a hearing in which a minor is alleged to be a delinquent is continued under this Section, the court, before continuing the case, shall make a finding whether the offense alleged to have been committed either: (i) was related to or in furtherance of the activities of an organized gang or was motivated by the minor's membership in or allegiance to an organized gang, or (ii) is a violation of paragraph (13) of subsection (a) of Section 12-2 of the Criminal Code of 1961, a violation of any Section of Article 24 of the Criminal Code of 1961, or a violation of any statute that involved the unlawful use of a firearm. If the court determines the question in the affirmative the court shall, as a condition of the continuance under supervision and as part of or in addition to any other condition of the supervision, require the minor to perform community service for not less than 30 hours, provided that community service is available in the jurisdiction and is funded and approved by the county board of the county where the offense was committed. The community service shall include, but need not be limited to, the cleanup and repair of any damage caused by an alleged violation of Section 21-1.3 of the Criminal Code of 1961 and similar damage to property located in the municipality or county in which the alleged violation occurred. When possible and reasonable, the community service shall be performed in the minor's neighborhood. For the purposes of this Section, "organized gang" has the meaning ascribed to it in Section 10 of the Illinois Streetgang Terrorism Omnibus Prevention Act.

(10) The court shall impose upon a minor placed on supervision, as a condition of the supervision, a fee of $25 for each month of supervision ordered by the court, unless after determining the inability of the minor placed on supervision to pay the fee, the court assesses a lesser amount. The court may not impose the fee on a minor who is made a ward of the State under this Act while the minor is in placement. The fee shall be imposed only upon a minor who is actively supervised by the probation and court services department. A court may order the parent, guardian, or legal custodian of the minor to pay some or all of the fee on the minor's behalf.

(11) If a minor is placed on supervision for a violation of subsection (a-7) of Section 1 of the Prevention of Tobacco Use by Minors Act, the court may, in its discretion, and upon recommendation by the State's Attorney, order that minor and his or her parents or legal guardian to attend a smoker's education or youth diversion program as defined in that Act if that program is available in the jurisdiction where the offender resides. Attendance at a smoker's education or youth diversion program shall be time-credited against any community service time imposed for any first violation of subsection (a-7) of Section 1 of that Act. In addition to any other penalty that the court may impose for a violation of subsection (a-7) of Section 1 of that Act, the court, upon request by the State's Attorney, may in its discretion require the offender to remit a fee for his or her attendance at a smoker's education or youth diversion program.

For purposes of this Section, "smoker's education program" or "youth diversion program" includes, but is not limited to, a seminar designed to educate a person on the physical and psychological effects of smoking tobacco products and the health consequences of smoking tobacco products that can be conducted with a locality's youth diversion program.

In addition to any other penalty that the court may impose under this subsection (11):

(a) If a minor violates subsection (a-7) of Section 1 of the Prevention of Tobacco Use by Minors Act, the court may impose a sentence of 15 hours of community service or a fine of $25 for a first violation.

(b) A second violation by a minor of subsection (a-7) of Section 1 of that Act that occurs within 12 months after the first violation is punishable by a fine of $50 and 25 hours of community service.

(c) A third or subsequent violation by a minor of subsection (a-7) of Section 1 of that Act that occurs within 12 months after the first violation is punishable by a $100 fine and 30 hours of community service.

(d) Any second or subsequent violation not within the 12-month time period after the first violation is punishable as provided for a first violation.

(Source: P.A. eff. 1-1-00; 96-179, eff. 8-10-09.)

(705 ILCS 405/5-715)

Sec. 5-715. Probation.

(1) The period of probation or conditional discharge shall not exceed 5 years or until the minor has attained the age of 21 years, whichever is less, except as provided in this Section for a minor who is found to be guilty for an offense which is first degree murder, a Class X felony or a forcible felony. The juvenile court may terminate probation or conditional discharge and discharge the minor at any time if warranted by the conduct of the minor and the ends of justice; provided, however, that the period of probation for a minor who is found to be guilty for an offense which is first degree murder, a Class X felony, or a forcible felony shall be at least 5 years.

(2) The court may as a condition of probation or of conditional discharge require that the minor:

(a) not violate any criminal statute of any jurisdiction;

(b) make a report to and appear in person before any person or agency as directed by the court;

(c) work or pursue a course of study or vocational training;

(d) undergo medical or psychiatric treatment, rendered by a psychiatrist or psychological treatment rendered by a clinical psychologist or social work services rendered by a clinical social worker, or treatment for drug addiction or alcoholism;

(e) attend or reside in a facility established for the instruction or residence of persons on probation;

(f) support his or her dependents, if any;

(g) refrain from possessing a firearm or other dangerous weapon, or an automobile;

(h) permit the probation officer to visit him or her at his or her home or elsewhere;

(i) reside with his or her parents or in a foster home;

(j) attend school;

(j-5) with the consent of the superintendent of the facility, attend an educational program at a facility other than the school in which the offense was committed if he or she committed a crime of violence as defined in Section 2 of the Crime Victims Compensation Act in a school, on the real property comprising a school, or within 1,000 feet of the real property comprising a school;

(k) attend a non-residential program for youth;

(l) make restitution under the terms of subsection (4) of Section 5-710;

(m) contribute to his or her own support at home or in a foster home;

(n) perform some reasonable public or community service;

(o) participate with community corrections programs including unified delinquency intervention services administered by the Department of Human Services subject to Section 5 of the Children and Family Services Act;

(p) pay costs;

(q) serve a term of home confinement. In addition to any other applicable condition of probation or conditional discharge, the conditions of home confinement shall be that the minor:

(i) remain within the interior premises of the place designated for his or her confinement during the hours designated by the court;

(ii) admit any person or agent designated by the court into the minor's place of confinement at any time for purposes of verifying the minor's compliance with the conditions of his or her confinement; and

(iii) use an approved electronic monitoring device if ordered by the court subject to Article 8A of Chapter V of the Unified Code of Corrections;

(r) refrain from entering into a designated geographic area except upon terms as the court finds appropriate. The terms may include consideration of the purpose of the entry, the time of day, other persons accompanying the minor, and advance approval by a probation officer, if the minor has been placed on probation, or advance approval by the court, if the minor has been placed on conditional discharge;

(s) refrain from having any contact, directly or indirectly, with certain specified persons or particular types of persons, including but not limited to members of street gangs and drug users or dealers;

(s-5) undergo a medical or other procedure to have a tattoo symbolizing allegiance to a street gang removed from his or her body;

(t) refrain from having in his or her body the presence of any illicit drug prohibited by the Cannabis Control Act, the Illinois Controlled Substances Act, or the Methamphetamine Control and Community Protection Act, unless prescribed by a physician, and shall submit samples of his or her blood or urine or both for tests to determine the presence of any illicit drug; or

(u) comply with other conditions as may be ordered by the court.

(3) The court may as a condition of probation or of conditional discharge require that a minor found guilty on any alcohol, cannabis, methamphetamine, or controlled substance violation, refrain from acquiring a driver's license during the period of probation or conditional discharge. If the minor is in possession of a permit or license, the court may require that the minor refrain from driving or operating any motor vehicle during the period of probation or conditional discharge, except as may be necessary in the course of the minor's lawful employment.

(3.5) The court shall, as a condition of probation or of conditional discharge, require that a minor found to be guilty and placed on probation for reasons that include a violation of Section 3.02 or Section 3.03 of the Humane Care for Animals Act or paragraph (d) of subsection (1) of Section 21-1 of the Criminal Code of 1961 undergo medical or psychiatric treatment rendered by a psychiatrist or psychological treatment rendered by a clinical psychologist. The condition may be in addition to any other condition.

(3.10) The court shall order that a minor placed on probation or conditional discharge for a sex offense as defined in the Sex Offender Management Board Act undergo and successfully complete sex offender treatment. The treatment shall be in conformance with the standards developed under the Sex Offender Management Board Act and conducted by a treatment provider approved by the Board. The treatment shall be at the expense of the person evaluated based upon that person's ability to pay for the treatment.

(4) A minor on probation or conditional discharge shall be given a certificate setting forth the conditions upon which he or she is being released.

(5) The court shall impose upon a minor placed on probation or conditional discharge, as a condition of the probation or conditional discharge, a fee of $25 for each month of probation or conditional discharge supervision ordered by the court, unless after determining the inability of the minor placed on probation or conditional discharge to pay the fee, the court assesses a lesser amount. The court may not impose the fee on a minor who is made a ward of the State under this Act while the minor is in placement. The fee shall be imposed only upon a minor who is actively supervised by the probation and court services department. The court may order the parent, guardian, or legal custodian of the minor to pay some or all of the fee on the minor's behalf.

(6) The General Assembly finds that in order to protect the public, the juvenile justice system must compel compliance with the conditions of probation by responding to violations with swift, certain, and fair punishments and intermediate sanctions. The Chief Judge of each circuit shall adopt a system of structured, intermediate sanctions for violations of the terms and conditions of a sentence of supervision, probation or conditional discharge, under this Act.

The court shall provide as a condition of a disposition of probation, conditional discharge, or supervision, that the probation agency may invoke any sanction from the list of intermediate sanctions adopted by the chief judge of the circuit court for violations of the terms and conditions of the sentence of probation, conditional discharge, or supervision, subject to the provisions of Section 5-720 of this Act.

(7) At the successful completion of probation of any first time offender only, a minor may move to vacate a finding of delinquency. Unless good cause is shown, such motion to vacate must be filed within 30 days of the entry of the order terminating probation or discharging the minor. The court shall on its own motion or on motion of the minor, his or her parent, guardian, or legal custodian vacate any finding made in the course of a proceeding under this Article and enter a judgment of dismissal.

(8) A motion to vacate a finding of delinquency under this Section is limited to minors:

(A) with no previous findings of delinquency;

(B) who have successfully completed the terms and conditions of probation;

(C) with no other matters pending; and

(D) without any other findings or convictions.

This subsection (8) does not apply to adjudications based upon any homicide, use of a deadly weapon, or sex offenses which would be felonies if committed by an adult.

(9) The Court shall consider among other factors:

(A) the nature and seriousness of the alleged offense;

(B) history and characteristics of the defendant;

(C) academic performance and recommendations;

(D) work performance and recommendations;

(E) recommendations from treatment or service providers;

(F) restitution;

(G) maturity;

(H) age at the time of the offense; and

(I) probation or youth officer recommendation, or both.

(10) Once a motion to vacate a finding of_delinquency has been granted, the case shall be treated as if it never occurred, and the person may not be required to disclose that he or she had a juvenile record. However, nothing in this paragraph (10) prohibits the judge, State's Attorney, or minor from reviewing the juvenile record of the minor, including the proceedings that resulted in the vacation of the finding of delinquency.

(11) This amendatory Act of the 96th General Assembly shall govern all motions pending at the time of its effective date.

(Source: P.A. 93-616, eff. 1-1-04; 94-556, eff. 9-11-05.)

Section 99. Effective date. This Act takes effect upon becoming law.