Sen. Ira I. Silverstein

Filed: 2/5/2010

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 2513

2     AMENDMENT NO. ______. Amend Senate Bill 2513 by replacing
3 everything after the enacting clause with the following:
 
4     "Section 5. The Juvenile Court Act of 1987 is amended by
5 changing Section 5-805 as follows:
 
6     (705 ILCS 405/5-805)
7     Sec. 5-805. Transfer of jurisdiction.
8     (1) Mandatory transfers.
9         (a) If a petition alleges commission by a minor 15
10     years of age or older of an act that constitutes a forcible
11     felony under the laws of this State, and if a motion by the
12     State's Attorney to prosecute the minor under the criminal
13     laws of Illinois for the alleged forcible felony alleges
14     that (i) the minor has previously been adjudicated
15     delinquent or found guilty for commission of an act that
16     constitutes a felony under the laws of this State or any

 

 

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1     other state and (ii) the act that constitutes the offense
2     was committed in furtherance of criminal activity by an
3     organized gang, the Juvenile Judge assigned to hear and
4     determine those motions shall, upon determining that there
5     is probable cause that both allegations are true, enter an
6     order permitting prosecution under the criminal laws of
7     Illinois.
8         (b) If a petition alleges commission by a minor 15
9     years of age or older of an act that constitutes a felony
10     under the laws of this State, and if a motion by a State's
11     Attorney to prosecute the minor under the criminal laws of
12     Illinois for the alleged felony alleges that (i) the minor
13     has previously been adjudicated delinquent or found guilty
14     for commission of an act that constitutes a forcible felony
15     under the laws of this State or any other state and (ii)
16     the act that constitutes the offense was committed in
17     furtherance of criminal activities by an organized gang,
18     the Juvenile Judge assigned to hear and determine those
19     motions shall, upon determining that there is probable
20     cause that both allegations are true, enter an order
21     permitting prosecution under the criminal laws of
22     Illinois.
23         (c) If a petition alleges commission by a minor 15
24     years of age or older of: (i) an act that constitutes an
25     offense enumerated in the presumptive transfer provisions
26     of subsection (2); and (ii) the minor has previously been

 

 

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1     adjudicated delinquent or found guilty of a forcible
2     felony, the Juvenile Judge designated to hear and determine
3     those motions shall, upon determining that there is
4     probable cause that both allegations are true, enter an
5     order permitting prosecution under the criminal laws of
6     Illinois.
7         (d) If a petition alleges commission by a minor 15
8     years of age or older of an act that constitutes the
9     offense of aggravated discharge of a firearm committed in a
10     school, on the real property comprising a school, within
11     1,000 feet of the real property comprising a school, at a
12     school related activity, or on, boarding, or departing from
13     any conveyance owned, leased, or contracted by a school or
14     school district to transport students to or from school or
15     a school related activity, regardless of the time of day or
16     the time of year, the juvenile judge designated to hear and
17     determine those motions shall, upon determining that there
18     is probable cause that the allegations are true, enter an
19     order permitting prosecution under the criminal laws of
20     Illinois.
21         For purposes of this paragraph (d) of subsection (1):
22         "School" means a public or private elementary or
23     secondary school, community college, college, or
24     university.
25         "School related activity" means any sporting, social,
26     academic, or other activity for which students' attendance

 

 

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1     or participation is sponsored, organized, or funded in
2     whole or in part by a school or school district.
3     (2) Presumptive transfer.
4         (a) If the State's Attorney files a petition, at any
5     time prior to commencement of the minor's trial, to permit
6     prosecution under the criminal laws and the petition
7     alleges the commission by a minor 15 years of age or older
8     of: (i) a Class X felony other than armed violence; (ii)
9     aggravated discharge of a firearm; (iii) armed violence
10     with a firearm when the predicate offense is a Class 1 or
11     Class 2 felony and the State's Attorney's motion to
12     transfer the case alleges that the offense committed is in
13     furtherance of the criminal activities of an organized
14     gang; (iv) armed violence with a firearm when the predicate
15     offense is a violation of the Illinois Controlled
16     Substances Act, a violation of the Cannabis Control Act, or
17     a violation of the Methamphetamine Control and Community
18     Protection Act; (v) armed violence when the weapon involved
19     was a machine gun or other weapon described in subsection
20     (a)(7) of Section 24-1 of the Criminal Code of 1961; (vi)
21     an act in violation of Section 401 of the Illinois
22     Controlled Substances Act which is a Class X felony, while
23     in a school, regardless of the time of day or the time of
24     year, or on any conveyance owned, leased, or contracted by
25     a school to transport students to or from school or a
26     school related activity, or on residential property owned,

 

 

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1     operated, or managed by a public housing agency or leased
2     by a public housing agency as part of a scattered site or
3     mixed-income development; or (vii) an act in violation of
4     Section 401 of the Illinois Controlled Substances Act and
5     the offense is alleged to have occurred while in a school
6     or on a public way within 1,000 feet of the real property
7     comprising any school, regardless of the time of day or the
8     time of year when the delivery or intended delivery of any
9     amount of the controlled substance is to a person under 17
10     years of age, (to qualify for a presumptive transfer under
11     paragraph (vi) or (vii) of this clause (2)(a), the
12     violation cannot be based upon subsection (b) of Section
13     407 of the Illinois Controlled Substances Act) and, if the
14     juvenile judge assigned to hear and determine motions to
15     transfer a case for prosecution in the criminal court
16     determines that there is probable cause to believe that the
17     allegations in the petition and motion are true, there is a
18     rebuttable presumption that the minor is not a fit and
19     proper subject to be dealt with under the Juvenile Justice
20     Reform Provisions of 1998 (Public Act 90-590), and that,
21     except as provided in paragraph (b), the case should be
22     transferred to the criminal court.
23         (b) The judge shall enter an order permitting
24     prosecution under the criminal laws of Illinois unless the
25     judge makes a finding based on clear and convincing
26     evidence that the minor would be amenable to the care,

 

 

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1     treatment, and training programs available through the
2     facilities of the juvenile court based on an evaluation of
3     the following:
4             (i) the age of the minor;
5             (ii) the history of the minor, including:
6                 (A) any previous delinquent or criminal
7             history of the minor,
8                 (B) any previous abuse or neglect history of
9             the minor, and
10                 (C) any mental health, physical or educational
11             history of the minor or combination of these
12             factors;
13             (iii) the circumstances of the offense, including:
14                 (A) the seriousness of the offense,
15                 (B) whether the minor is charged through
16             accountability,
17                 (C) whether there is evidence the offense was
18             committed in an aggressive and premeditated
19             manner,
20                 (D) whether there is evidence the offense
21             caused serious bodily harm,
22                 (E) whether there is evidence the minor
23             possessed a deadly weapon;
24             (iv) the advantages of treatment within the
25         juvenile justice system including whether there are
26         facilities or programs, or both, particularly

 

 

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1         available in the juvenile system;
2             (v) whether the security of the public requires
3         sentencing under Chapter V of the Unified Code of
4         Corrections:
5                 (A) the minor's history of services, including
6             the minor's willingness to participate
7             meaningfully in available services;
8                 (B) whether there is a reasonable likelihood
9             that the minor can be rehabilitated before the
10             expiration of the juvenile court's jurisdiction;
11                 (C) the adequacy of the punishment or
12             services.
13         In considering these factors, the court shall give
14     greater weight to the seriousness of the alleged offense
15     and the minor's prior record of delinquency than to the
16     other factors listed in this subsection.
17     For purposes of clauses (2)(a)(vi) and (vii):
18     "School" means a public or private elementary or secondary
19 school, community college, college, or university.
20     "School related activity" means any sporting, social,
21 academic, or other activity for which students' attendance or
22 participation is sponsored, organized, or funded in whole or in
23 part by a school or school district.
24     (3) Discretionary transfer.
25         (a) If a petition alleges commission by a minor 13
26     years of age or over of an act that constitutes a crime

 

 

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1     under the laws of this State and, on motion of the State's
2     Attorney to permit prosecution of the minor under the
3     criminal laws, a Juvenile Judge assigned by the Chief Judge
4     of the Circuit to hear and determine those motions, after
5     hearing but before commencement of the trial, finds that
6     there is probable cause to believe that the allegations in
7     the motion are true and that it is not in the best
8     interests of the public to proceed under this Act, the
9     court may enter an order permitting prosecution under the
10     criminal laws.
11         (b) In making its determination on the motion to permit
12     prosecution under the criminal laws, the court shall
13     consider among other matters:
14             (i) the age of the minor;
15             (ii) the history of the minor, including:
16                 (A) any previous delinquent or criminal
17             history of the minor,
18                 (B) any previous abuse or neglect history of
19             the minor, and
20                 (C) any mental health, physical, or
21             educational history of the minor or combination of
22             these factors;
23             (iii) the circumstances of the offense, including:
24                 (A) the seriousness of the offense,
25                 (B) whether the minor is charged through
26             accountability,

 

 

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1                 (C) whether there is evidence the offense was
2             committed in an aggressive and premeditated
3             manner,
4                 (D) whether there is evidence the offense
5             caused serious bodily harm,
6                 (E) whether there is evidence the minor
7             possessed a deadly weapon;
8             (iv) the advantages of treatment within the
9         juvenile justice system including whether there are
10         facilities or programs, or both, particularly
11         available in the juvenile system;
12             (v) whether the security of the public requires
13         sentencing under Chapter V of the Unified Code of
14         Corrections:
15                 (A) the minor's history of services, including
16             the minor's willingness to participate
17             meaningfully in available services;
18                 (B) whether there is a reasonable likelihood
19             that the minor can be rehabilitated before the
20             expiration of the juvenile court's jurisdiction;
21                 (C) the adequacy of the punishment or
22             services.
23         In considering these factors, the court shall give
24     greater weight to the seriousness of the alleged offense
25     and the minor's prior record of delinquency than to the
26     other factors listed in this subsection.

 

 

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1     (4) The rules of evidence for this hearing shall be the
2 same as under Section 5-705 of this Act. A minor must be
3 represented in court by counsel before the hearing may be
4 commenced.
5     (5) If criminal proceedings are instituted, the petition
6 for adjudication of wardship shall be dismissed insofar as the
7 act or acts involved in the criminal proceedings. Taking of
8 evidence in a trial on petition for adjudication of wardship is
9 a bar to criminal proceedings based upon the conduct alleged in
10 the petition.
11     (6) The jurisdiction of the Juvenile Court for the
12 prosecution of an alleged violation of Section 11-20.4 of the
13 Criminal Code of 1961 shall be determined as provided in that
14 Section.
15 (Source: P.A. 94-556, eff. 9-11-05; 94-574, eff. 8-12-05;
16 95-331, eff. 8-21-07.)
 
17     Section 10. The Criminal Code of 1961 is amended by adding
18 Section 11-20.4 as follows:
 
19     (720 ILCS 5/11-20.4 new)
20     Sec. 11-20.4. Minor electronically disseminating indecent
21 visual depiction of himself or herself to another person.
22     (a) For the purposes of this Section:
23         "Computer" has the meaning ascribed to it in Section
24     16D-2 of this Code.

 

 

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1         "Electronic communication device" means an electronic
2     device, including but not limited to a wireless telephone,
3     personal digital assistant, or a portable or mobile
4     computer, that is capable of transmitting images or
5     pictures.
6         "Indecent visual depiction" means the depiction of a
7     lewd exhibition of the unclothed or transparently clothed
8     genitals, pubic area, buttocks, or, if the person is
9     female, a fully or partially developed breast of the
10     person.
11         "Minor" means a person under 18 years of age.
12     (b) A minor shall not knowingly and voluntarily and without
13 threat or coercion use a computer or electronic communication
14 device to transmit an indecent visual depiction of himself or
15 herself to another person.
16     (c) A person shall not possess a visual depiction
17 transmitted to the person in violation of subsection (b) of
18 this Section. It is not a violation of this subsection (c) if
19 the person took reasonable steps, whether successful or not, to
20 destroy or eliminate the visual depiction within a reasonable
21 time after discovering the depiction.
22     (d) Sentence.
23         (1) A person 18 years of age or older who violates
24     subsection (c) of this Section is guilty of a Class B
25     misdemeanor.
26         (2) Except as provided in paragraph (3) of this

 

 

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1     subsection (d), a minor who violates subsection (b) or (c)
2     of this Section shall be adjudicated a delinquent minor
3     under the Juvenile Court Act of 1987.
4         (3) A minor who violates subsection (b) or (c) of this
5     Section who has previously been adjudicated in violation of
6     either of those subsections may be either adjudicated a
7     delinquent minor under the Juvenile Court Act of 1987 or
8     subject to discretionary transfer for prosecution under
9     the criminal laws of this State in accordance with
10     subsection (3) of Section 5-805 of that Act. A minor
11     subject to discretionary transfer for a violation is guilty
12     of a Class B misdemeanor.
13     (e) This Section shall not be construed to prohibit a
14 prosecution for disorderly conduct, public indecency, child
15 pornography, a violation of the Harassing and Obscene
16 Communications Act, or any other applicable provision of law.".