102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB5528

 

Introduced 1/31/2022, by Rep. Justin Slaughter

 

SYNOPSIS AS INTRODUCED:
 
730 ILCS 5/5-4-1  from Ch. 38, par. 1005-4-1

    Amends the Unified Code of Corrections. Provides that the form of the judge's statement to the defendant on the amount of time that the defendant shall serve in prison, assuming the defendant receives all of his or her sentence credit, the period of estimated actual custody is so many years and months, less up to 180 days additional earned sentence credit for sentences of incarceration that are less than 5 years and up to 365 days additional earned sentence credit for sentences of incarceration that are 5 years or more. Clarifies that, if the defendant, because of his or her own misconduct or failure to comply with the institutional regulations, does not receive those credits, the actual time served in prison will be longer. The defendant may also receive an additional one (rather than one-half) day sentence credit for each day of participation in vocational, industry, substance abuse, and educational programs as provided for by Illinois statute and one-half day sentence credit for each day of participation in self-improvement programs, volunteer work, or work assignments.


LRB102 24518 RLC 33752 b

 

 

A BILL FOR

 

HB5528LRB102 24518 RLC 33752 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 Unified Code of Corrections is amended by
5changing Section 5-4-1 as follows:
 
6    (730 ILCS 5/5-4-1)  (from Ch. 38, par. 1005-4-1)
7    Sec. 5-4-1. Sentencing hearing.
8    (a) Except when the death penalty is sought under hearing
9procedures otherwise specified, after a determination of
10guilt, a hearing shall be held to impose the sentence.
11However, prior to the imposition of sentence on an individual
12being sentenced for an offense based upon a charge for a
13violation of Section 11-501 of the Illinois Vehicle Code or a
14similar provision of a local ordinance, the individual must
15undergo a professional evaluation to determine if an alcohol
16or other drug abuse problem exists and the extent of such a
17problem. Programs conducting these evaluations shall be
18licensed by the Department of Human Services. However, if the
19individual is not a resident of Illinois, the court may, in its
20discretion, accept an evaluation from a program in the state
21of such individual's residence. The court shall make a
22specific finding about whether the defendant is eligible for
23participation in a Department impact incarceration program as

 

 

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1provided in Section 5-8-1.1 or 5-8-1.3, and if not, provide an
2explanation as to why a sentence to impact incarceration is
3not an appropriate sentence. The court may in its sentencing
4order recommend a defendant for placement in a Department of
5Corrections substance abuse treatment program as provided in
6paragraph (a) of subsection (1) of Section 3-2-2 conditioned
7upon the defendant being accepted in a program by the
8Department of Corrections. At the hearing the court shall:
9        (1) consider the evidence, if any, received upon the
10    trial;
11        (2) consider any presentence reports;
12        (3) consider the financial impact of incarceration
13    based on the financial impact statement filed with the
14    clerk of the court by the Department of Corrections;
15        (4) consider evidence and information offered by the
16    parties in aggravation and mitigation;
17        (4.5) consider substance abuse treatment, eligibility
18    screening, and an assessment, if any, of the defendant by
19    an agent designated by the State of Illinois to provide
20    assessment services for the Illinois courts;
21        (5) hear arguments as to sentencing alternatives;
22        (6) afford the defendant the opportunity to make a
23    statement in his own behalf;
24        (7) afford the victim of a violent crime or a
25    violation of Section 11-501 of the Illinois Vehicle Code,
26    or a similar provision of a local ordinance, the

 

 

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1    opportunity to present an oral or written statement, as
2    guaranteed by Article I, Section 8.1 of the Illinois
3    Constitution and provided in Section 6 of the Rights of
4    Crime Victims and Witnesses Act. The court shall allow a
5    victim to make an oral statement if the victim is present
6    in the courtroom and requests to make an oral or written
7    statement. An oral or written statement includes the
8    victim or a representative of the victim reading the
9    written statement. The court may allow persons impacted by
10    the crime who are not victims under subsection (a) of
11    Section 3 of the Rights of Crime Victims and Witnesses Act
12    to present an oral or written statement. A victim and any
13    person making an oral statement shall not be put under
14    oath or subject to cross-examination. All statements
15    offered under this paragraph (7) shall become part of the
16    record of the court. In this paragraph (7), "victim of a
17    violent crime" means a person who is a victim of a violent
18    crime for which the defendant has been convicted after a
19    bench or jury trial or a person who is the victim of a
20    violent crime with which the defendant was charged and the
21    defendant has been convicted under a plea agreement of a
22    crime that is not a violent crime as defined in subsection
23    (c) of 3 of the Rights of Crime Victims and Witnesses Act;
24        (7.5) afford a qualified person affected by: (i) a
25    violation of Section 405, 405.1, 405.2, or 407 of the
26    Illinois Controlled Substances Act or a violation of

 

 

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1    Section 55 or Section 65 of the Methamphetamine Control
2    and Community Protection Act; or (ii) a Class 4 felony
3    violation of Section 11-14, 11-14.3 except as described in
4    subdivisions (a)(2)(A) and (a)(2)(B), 11-15, 11-17, 11-18,
5    11-18.1, or 11-19 of the Criminal Code of 1961 or the
6    Criminal Code of 2012, committed by the defendant the
7    opportunity to make a statement concerning the impact on
8    the qualified person and to offer evidence in aggravation
9    or mitigation; provided that the statement and evidence
10    offered in aggravation or mitigation shall first be
11    prepared in writing in conjunction with the State's
12    Attorney before it may be presented orally at the hearing.
13    Sworn testimony offered by the qualified person is subject
14    to the defendant's right to cross-examine. All statements
15    and evidence offered under this paragraph (7.5) shall
16    become part of the record of the court. In this paragraph
17    (7.5), "qualified person" means any person who: (i) lived
18    or worked within the territorial jurisdiction where the
19    offense took place when the offense took place; or (ii) is
20    familiar with various public places within the territorial
21    jurisdiction where the offense took place when the offense
22    took place. "Qualified person" includes any peace officer
23    or any member of any duly organized State, county, or
24    municipal peace officer unit assigned to the territorial
25    jurisdiction where the offense took place when the offense
26    took place;

 

 

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1        (8) in cases of reckless homicide afford the victim's
2    spouse, guardians, parents or other immediate family
3    members an opportunity to make oral statements;
4        (9) in cases involving a felony sex offense as defined
5    under the Sex Offender Management Board Act, consider the
6    results of the sex offender evaluation conducted pursuant
7    to Section 5-3-2 of this Act; and
8        (10) make a finding of whether a motor vehicle was
9    used in the commission of the offense for which the
10    defendant is being sentenced.
11    (b) All sentences shall be imposed by the judge based upon
12his independent assessment of the elements specified above and
13any agreement as to sentence reached by the parties. The judge
14who presided at the trial or the judge who accepted the plea of
15guilty shall impose the sentence unless he is no longer
16sitting as a judge in that court. Where the judge does not
17impose sentence at the same time on all defendants who are
18convicted as a result of being involved in the same offense,
19the defendant or the State's Attorney may advise the
20sentencing court of the disposition of any other defendants
21who have been sentenced.
22    (b-1) In imposing a sentence of imprisonment or periodic
23imprisonment for a Class 3 or Class 4 felony for which a
24sentence of probation or conditional discharge is an available
25sentence, if the defendant has no prior sentence of probation
26or conditional discharge and no prior conviction for a violent

 

 

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1crime, the defendant shall not be sentenced to imprisonment
2before review and consideration of a presentence report and
3determination and explanation of why the particular evidence,
4information, factor in aggravation, factual finding, or other
5reasons support a sentencing determination that one or more of
6the factors under subsection (a) of Section 5-6-1 of this Code
7apply and that probation or conditional discharge is not an
8appropriate sentence.
9    (c) In imposing a sentence for a violent crime or for an
10offense of operating or being in physical control of a vehicle
11while under the influence of alcohol, any other drug or any
12combination thereof, or a similar provision of a local
13ordinance, when such offense resulted in the personal injury
14to someone other than the defendant, the trial judge shall
15specify on the record the particular evidence, information,
16factors in mitigation and aggravation or other reasons that
17led to his sentencing determination. The full verbatim record
18of the sentencing hearing shall be filed with the clerk of the
19court and shall be a public record.
20    (c-1) In imposing a sentence for the offense of aggravated
21kidnapping for ransom, home invasion, armed robbery,
22aggravated vehicular hijacking, aggravated discharge of a
23firearm, or armed violence with a category I weapon or
24category II weapon, the trial judge shall make a finding as to
25whether the conduct leading to conviction for the offense
26resulted in great bodily harm to a victim, and shall enter that

 

 

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1finding and the basis for that finding in the record.
2    (c-1.5) Notwithstanding any other provision of law to the
3contrary, in imposing a sentence for an offense that requires
4a mandatory minimum sentence of imprisonment, the court may
5instead sentence the offender to probation, conditional
6discharge, or a lesser term of imprisonment it deems
7appropriate if: (1) the offense involves the use or possession
8of drugs, retail theft, or driving on a revoked license due to
9unpaid financial obligations; (2) the court finds that the
10defendant does not pose a risk to public safety; and (3) the
11interest of justice requires imposing a term of probation,
12conditional discharge, or a lesser term of imprisonment. The
13court must state on the record its reasons for imposing
14probation, conditional discharge, or a lesser term of
15imprisonment.
16    (c-2) If the defendant is sentenced to prison, other than
17when a sentence of natural life imprisonment or a sentence of
18death is imposed, at the time the sentence is imposed the judge
19shall state on the record in open court the approximate period
20of time the defendant will serve in custody according to the
21then current statutory rules and regulations for sentence
22credit found in Section 3-6-3 and other related provisions of
23this Code. This statement is intended solely to inform the
24public, has no legal effect on the defendant's actual release,
25and may not be relied on by the defendant on appeal.
26    The judge's statement, to be given after pronouncing the

 

 

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1sentence, other than when the sentence is imposed for one of
2the offenses enumerated in paragraph (a)(4) of Section 3-6-3,
3shall include the following:
4    "The purpose of this statement is to inform the public of
5the actual period of time this defendant is likely to spend in
6prison as a result of this sentence. The actual period of
7prison time served is determined by the statutes of Illinois
8as applied to this sentence by the Illinois Department of
9Corrections and the Illinois Prisoner Review Board. In this
10case, assuming the defendant receives all of his or her
11sentence credit, the period of estimated actual custody is ...
12years and ... months, less up to 180 days additional earned
13sentence credit for sentences of incarceration that are less
14than 5 years and up to 365 days additional earned sentence
15credit for sentences of incarceration that are 5 years or
16more. If the defendant, because of his or her own misconduct or
17failure to comply with the institutional regulations, does not
18receive those credits, the actual time served in prison will
19be longer. The defendant may also receive an additional one
20one-half day sentence credit for each day of participation in
21vocational, industry, substance abuse, and educational
22programs as provided for by Illinois statute and one-half day
23sentence credit for each day of participation in
24self-improvement programs, volunteer work, or work
25assignments."
26    When the sentence is imposed for one of the offenses

 

 

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1enumerated in paragraph (a)(2) of Section 3-6-3, other than
2first degree murder, and the offense was committed on or after
3June 19, 1998, and when the sentence is imposed for reckless
4homicide as defined in subsection (e) of Section 9-3 of the
5Criminal Code of 1961 or the Criminal Code of 2012 if the
6offense was committed on or after January 1, 1999, and when the
7sentence is imposed for aggravated driving under the influence
8of alcohol, other drug or drugs, or intoxicating compound or
9compounds, or any combination thereof as defined in
10subparagraph (F) of paragraph (1) of subsection (d) of Section
1111-501 of the Illinois Vehicle Code, and when the sentence is
12imposed for aggravated arson if the offense was committed on
13or after July 27, 2001 (the effective date of Public Act
1492-176), and when the sentence is imposed for aggravated
15driving under the influence of alcohol, other drug or drugs,
16or intoxicating compound or compounds, or any combination
17thereof as defined in subparagraph (C) of paragraph (1) of
18subsection (d) of Section 11-501 of the Illinois Vehicle Code
19committed on or after January 1, 2011 (the effective date of
20Public Act 96-1230), the judge's statement, to be given after
21pronouncing the sentence, shall include the following:
22    "The purpose of this statement is to inform the public of
23the actual period of time this defendant is likely to spend in
24prison as a result of this sentence. The actual period of
25prison time served is determined by the statutes of Illinois
26as applied to this sentence by the Illinois Department of

 

 

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1Corrections and the Illinois Prisoner Review Board. In this
2case, the defendant is entitled to no more than 4 1/2 days of
3sentence credit for each month of his or her sentence of
4imprisonment. Therefore, this defendant will serve at least
585% of his or her sentence. Assuming the defendant receives 4
61/2 days credit for each month of his or her sentence, the
7period of estimated actual custody is ... years and ...
8months. If the defendant, because of his or her own misconduct
9or failure to comply with the institutional regulations
10receives lesser credit, the actual time served in prison will
11be longer."
12    When a sentence of imprisonment is imposed for first
13degree murder and the offense was committed on or after June
1419, 1998, the judge's statement, to be given after pronouncing
15the sentence, shall include the following:
16    "The purpose of this statement is to inform the public of
17the actual period of time this defendant is likely to spend in
18prison as a result of this sentence. The actual period of
19prison time served is determined by the statutes of Illinois
20as applied to this sentence by the Illinois Department of
21Corrections and the Illinois Prisoner Review Board. In this
22case, the defendant is not entitled to sentence credit.
23Therefore, this defendant will serve 100% of his or her
24sentence."
25    When the sentencing order recommends placement in a
26substance abuse program for any offense that results in

 

 

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1incarceration in a Department of Corrections facility and the
2crime was committed on or after September 1, 2003 (the
3effective date of Public Act 93-354), the judge's statement,
4in addition to any other judge's statement required under this
5Section, to be given after pronouncing the sentence, shall
6include the following:
7    "The purpose of this statement is to inform the public of
8the actual period of time this defendant is likely to spend in
9prison as a result of this sentence. The actual period of
10prison time served is determined by the statutes of Illinois
11as applied to this sentence by the Illinois Department of
12Corrections and the Illinois Prisoner Review Board. In this
13case, the defendant shall receive no earned sentence credit
14under clause (3) of subsection (a) of Section 3-6-3 until he or
15she participates in and completes a substance abuse treatment
16program or receives a waiver from the Director of Corrections
17pursuant to clause (4.5) of subsection (a) of Section 3-6-3."
18    (c-4) Before the sentencing hearing and as part of the
19presentence investigation under Section 5-3-1, the court shall
20inquire of the defendant whether the defendant is currently
21serving in or is a veteran of the Armed Forces of the United
22States. If the defendant is currently serving in the Armed
23Forces of the United States or is a veteran of the Armed Forces
24of the United States and has been diagnosed as having a mental
25illness by a qualified psychiatrist or clinical psychologist
26or physician, the court may:

 

 

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1        (1) order that the officer preparing the presentence
2    report consult with the United States Department of
3    Veterans Affairs, Illinois Department of Veterans'
4    Affairs, or another agency or person with suitable
5    knowledge or experience for the purpose of providing the
6    court with information regarding treatment options
7    available to the defendant, including federal, State, and
8    local programming; and
9        (2) consider the treatment recommendations of any
10    diagnosing or treating mental health professionals
11    together with the treatment options available to the
12    defendant in imposing sentence.
13    For the purposes of this subsection (c-4), "qualified
14psychiatrist" means a reputable physician licensed in Illinois
15to practice medicine in all its branches, who has specialized
16in the diagnosis and treatment of mental and nervous disorders
17for a period of not less than 5 years.
18    (c-6) In imposing a sentence, the trial judge shall
19specify, on the record, the particular evidence and other
20reasons which led to his or her determination that a motor
21vehicle was used in the commission of the offense.
22    (c-7) In imposing a sentence for a Class 3 or 4 felony,
23other than a violent crime as defined in Section 3 of the
24Rights of Crime Victims and Witnesses Act, the court shall
25determine and indicate in the sentencing order whether the
26defendant has 4 or more or fewer than 4 months remaining on his

 

 

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1or her sentence accounting for time served.
2    (d) When the defendant is committed to the Department of
3Corrections, the State's Attorney shall and counsel for the
4defendant may file a statement with the clerk of the court to
5be transmitted to the department, agency or institution to
6which the defendant is committed to furnish such department,
7agency or institution with the facts and circumstances of the
8offense for which the person was committed together with all
9other factual information accessible to them in regard to the
10person prior to his commitment relative to his habits,
11associates, disposition and reputation and any other facts and
12circumstances which may aid such department, agency or
13institution during its custody of such person. The clerk shall
14within 10 days after receiving any such statements transmit a
15copy to such department, agency or institution and a copy to
16the other party, provided, however, that this shall not be
17cause for delay in conveying the person to the department,
18agency or institution to which he has been committed.
19    (e) The clerk of the court shall transmit to the
20department, agency or institution, if any, to which the
21defendant is committed, the following:
22        (1) the sentence imposed;
23        (2) any statement by the court of the basis for
24    imposing the sentence;
25        (3) any presentence reports;
26        (3.5) any sex offender evaluations;

 

 

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1        (3.6) any substance abuse treatment eligibility
2    screening and assessment of the defendant by an agent
3    designated by the State of Illinois to provide assessment
4    services for the Illinois courts;
5        (4) the number of days, if any, which the defendant
6    has been in custody and for which he is entitled to credit
7    against the sentence, which information shall be provided
8    to the clerk by the sheriff;
9        (4.1) any finding of great bodily harm made by the
10    court with respect to an offense enumerated in subsection
11    (c-1);
12        (5) all statements filed under subsection (d) of this
13    Section;
14        (6) any medical or mental health records or summaries
15    of the defendant;
16        (7) the municipality where the arrest of the offender
17    or the commission of the offense has occurred, where such
18    municipality has a population of more than 25,000 persons;
19        (8) all statements made and evidence offered under
20    paragraph (7) of subsection (a) of this Section; and
21        (9) all additional matters which the court directs the
22    clerk to transmit.
23    (f) In cases in which the court finds that a motor vehicle
24was used in the commission of the offense for which the
25defendant is being sentenced, the clerk of the court shall,
26within 5 days thereafter, forward a report of such conviction

 

 

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1to the Secretary of State.
2(Source: P.A. 100-961, eff. 1-1-19; 101-81, eff. 7-12-19;
3101-105, eff. 1-1-20; 101-652, Article 10, Section 10-281,
4eff. 7-1-21; 101-652, Article 20, Section 20-5, eff. 7-1-21;
5revised 11-22-21.)