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| [ Senate Amendment 001 ] |
90_HB0182ham001
LRB9000325RCksam01
1 AMENDMENT TO HOUSE BILL 182
2 AMENDMENT NO. . Amend House Bill 182, on page 1, by
3 replacing lines 1 and 2 with the following:
4 "AN ACT in relation to criminal law, amending named
5 Acts."; and
6 on page 1, by inserting between lines 4 and 5 the following:
7 "Section 2. The Juvenile Court Act of 1987 is amended by
8 changing Section 5-4 as follows:
9 (705 ILCS 405/5-4) (from Ch. 37, par. 805-4)
10 Sec. 5-4. Criminal prosecutions limited.
11 (1) Except as provided in this Section, no minor who was
12 under 17 years of age at the time of the alleged offense may
13 be prosecuted under the criminal laws of this State or for
14 violation of an ordinance of any political subdivision of
15 this State.
16 (2) Subject to subsection (5) of Section 5-10, any minor
17 alleged to have committed a traffic, boating or fish and game
18 law violation, whether or not the violation is punishable by
19 imprisonment or an offense punishable by fine only, may be
20 prosecuted for the violation and if found guilty punished
21 under any statute or ordinance relating to the violation,
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1 without reference to the procedures set out in this Act,
2 except that detention, if any, must be in compliance with
3 this Act.
4 For the purpose of this Section, "traffic violation"
5 shall include a violation of Section 9-3 of the Criminal Code
6 of 1961 relating to the offense of reckless homicide, or
7 Section 11-501 of the Illinois Vehicle Code, or any similar
8 provision of a local ordinance.
9 (3) (a) If a petition alleges commission by a minor 13
10 years of age or over of an act that constitutes a crime
11 under the laws of this State and, on motion of the
12 State's Attorney, a Juvenile Judge designated by the
13 Chief Judge of the Circuit to hear and determine those
14 motions, after investigation and hearing but before
15 commencement of the adjudicatory hearing, finds that it
16 is not in the best interests of the minor or of the
17 public to proceed under this Act, the court may enter an
18 order permitting prosecution under the criminal laws.
19 (b) In making its determination on a motion to
20 permit prosecution under the criminal laws, the court
21 shall consider among other matters: (i) whether there is
22 sufficient evidence upon which a grand jury may be
23 expected to return an indictment; (ii) whether there is
24 evidence that the alleged offense was committed in an
25 aggressive and premeditated manner; (iii) the age of the
26 minor; (iv) the previous history of the minor; (v)
27 whether there are facilities particularly available to
28 the Juvenile Court for the treatment and rehabilitation
29 of the minor; (vi) whether the best interest of the minor
30 and the security of the public may require that the minor
31 continue in custody or under supervision for a period
32 extending beyond his minority; (vii) whether the minor
33 possessed a deadly weapon when committing the alleged
34 offense; and (viii) whether the alleged offense is a
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1 felony offense under Section 5 of the Cannabis Control
2 Act committed while in a school, regardless of the time
3 of day or the time of year, or any conveyance owned,
4 leased or contracted by a school to transport students to
5 or from school or a school related activity, on the real
6 property comprising any school, regardless of the time of
7 day or the time of year, or on a public way within 1,000
8 feet of the real property comprising any school,
9 regardless of the time of day or the time of year.
10 School is defined, for the purposes of this Section, as
11 any public or private elementary or secondary school,
12 community college, college, or university. The rules of
13 evidence shall be the same as under Section 5-22 of this
14 Act, but no hearing on the motion may be commenced unless
15 the minor is represented in court by counsel.
16 (c) If criminal proceedings are instituted, the
17 petition shall be dismissed insofar as the act or acts
18 involved in the criminal proceedings are concerned.
19 Taking of evidence in an adjudicatory hearing in any such
20 case is a bar to criminal proceedings based upon the
21 conduct alleged in the petition.
22 (3.1) If a petition alleges commission by a minor 15
23 years of age or older of an act that constitutes a forcible
24 felony under the laws of this State, and if a motion by the
25 State's Attorney to prosecute the minor under the criminal
26 laws of Illinois for the alleged forcible felony alleges that
27 (i) the minor has previously been adjudicated delinquent for
28 commission of an act that constitutes a felony under the laws
29 of this State or any other state and (ii) the act that
30 constitutes the offense was committed in furtherance of
31 criminal activity by an organized gang, the Juvenile Judge
32 designated to hear and determine those motions shall, upon
33 determining that there is probable cause that both
34 allegations are true, enter an order permitting prosecution
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1 under the criminal laws of Illinois.
2 (3.2) If a petition alleges commission by a minor 15
3 years of age or older of an act that constitutes a felony
4 under the laws of this State, and if a motion by a State's
5 Attorney to prosecute the minor under the criminal laws of
6 Illinois for the alleged felony alleges that (i) the minor
7 has previously been adjudicated delinquent for commission of
8 an act that constitutes a forcible felony under the laws of
9 this State or any other state and (ii) the act that
10 constitutes the offense was committed in furtherance of
11 criminal activities by an organized gang, the Juvenile Judge
12 designated to hear and determine those motions shall, upon
13 determining that there is probable cause that both
14 allegations are true, enter an order permitting prosecution
15 under the criminal laws of Illinois.
16 (3.3) (a) If the State's Attorney files a motion under
17 subsection (3)(a) to permit prosecution under the criminal
18 laws and the petition alleges the commission by a minor 15
19 years of age or older of: (i) a Class X felony other than
20 armed violence; (ii) aggravated discharge of a firearm;
21 (iii) armed violence with a firearm when the predicate
22 offense is a Class 1 or Class 2 felony and the State's
23 Attorney's motion to transfer the case alleges that the
24 offense committed is in furtherance of the criminal
25 activities of an organized gang and the case is not required
26 to be prosecuted under the criminal laws of Illinois as
27 provided by subsection (3.1) or (3.2); (iv) armed violence
28 with a firearm when the predicate offense is a violation of
29 Section 401, subsection (a) of Section 402, Section 404,
30 Section 405, Section 405.1, subsection (a) of Section 405.2,
31 Section 407, Section 407.1, or Section 407.2 of the Illinois
32 Controlled Substances Act; or (v) armed violence when the
33 weapon involved was a machine gun or other weapon described
34 in subsection (a)(7) of Section 24-1 of the Criminal Code of
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1 1961, and, if the juvenile judge designated to hear and
2 determine motions to transfer a case for prosecution in the
3 criminal court determines that there is probable cause to
4 believe that the allegations in the petition and motion are
5 true, there is a rebuttable presumption that the minor is not
6 a fit and proper subject to be dealt with under the Juvenile
7 Court Act of 1987, and that, except as provided in paragraph
8 (b), the case should be transferred to the criminal court.
9 (b) The judge shall enter an order permitting
10 prosecution under the criminal laws of Illinois unless the
11 judge makes a finding based on evidence that the minor would
12 be amenable to the care, treatment, and training programs
13 available through the facilities of the juvenile court based
14 on an evaluation of the following:
15 (i) The circumstances and gravity of the
16 offense alleged to have been committed by the minor.
17 (ii) The age of the minor.
18 (iii) The degree of criminal sophistication
19 exhibited by the minor.
20 (iv) Whether there is a reasonable likelihood
21 that the minor can be rehabilitated before the
22 expiration of the juvenile court's jurisdiction.
23 (v) The minor's previous history of
24 delinquency.
25 (vi) Whether the offense was committed in an
26 aggressive, premeditated or calculated manner.
27 (vii) Whether there are sufficient facilities
28 available to the juvenile court for the treatment
29 and rehabilitation of the minor.
30 For purposes of subsections (3.1), (3.2), and (3.3)
31 "organized gang" has the meaning ascribed to it in Section 10
32 of the Illinois Streetgang Terrorism Omnibus Prevention Act.
33 (4) Nothing in this Act prohibits or limits the
34 prosecution of any minor for an offense committed on or after
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1 his or her 17th birthday even though he or she is at the time
2 of the offense a ward of the court.
3 (5) If an original petition for adjudication of wardship
4 alleges the commission by a minor 13 years of age or over of
5 an act that constitutes a crime under the laws of this State,
6 the minor, with the consent of his or her counsel, may, at
7 any time before commencement of the adjudicatory hearing,
8 file with the court a motion that criminal prosecution be
9 ordered and that the petition be dismissed insofar as the act
10 or acts involved in the criminal proceedings are concerned.
11 If such a motion is filed as herein provided, the court shall
12 enter its order accordingly.
13 (6) (a) The definition of delinquent minor under Section
14 5-3 of this Act shall not apply to any minor who at the
15 time of an offense was at least 15 years of age and who
16 is charged with first degree murder, aggravated criminal
17 sexual assault, armed robbery when the armed robbery was
18 committed with a firearm, aggravated vehicular hijacking
19 when the hijacking was committed with a firearm, or
20 violation of the provisions of paragraph (1), (3), (4),
21 or (10) of subsection (a) of Section 24-1 of the Criminal
22 Code of 1961 while in the building, or on the grounds, or
23 within 1,000 feet of any elementary or secondary school,
24 community college, college or university. These charges
25 and all other charges arising out of the same incident
26 shall be prosecuted under the Criminal Code of 1961.
27 (b) If before trial or plea an information or
28 indictment is filed which does not charge an offense
29 specified in paragraph (a) of this subsection (6), the
30 State's Attorney may proceed on the lesser charge or
31 charges, but only in Juvenile Court under the other
32 provisions of this Act, unless before trial the minor
33 defendant knowingly and with advice of counsel waives, in
34 writing, his or her right to have the matter proceed in
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1 Juvenile Court. If before trial or plea an information
2 or indictment is filed that includes one or more charges
3 specified in paragraph (a) of this subsection (6) and
4 additional charges that are not specified in that
5 paragraph, all of the charges arising out of the same
6 incident shall be prosecuted under the Criminal Code of
7 1961.
8 (c) (i) If after trial or plea the minor is
9 convicted of any offense covered by paragraph (a) of
10 this subsection (6), then, in sentencing the minor,
11 the court shall have available any or all
12 dispositions prescribed for that offense under
13 Chapter V of the Unified Code of Corrections.
14 (ii) If after trial or plea the minor is only
15 convicted of an offense not covered by paragraph (a)
16 of this subsection (6), the conviction shall not
17 invalidate the verdict or the prosecution of the
18 minor under the criminal laws of the State; however,
19 unless the State requests a hearing for the purpose
20 of sentencing the minor under Chapter V of the
21 Unified Code of Corrections, the Court must proceed
22 under Sections 5-22 and 5-23 of this Act. Should
23 the State request a hearing it must do so by written
24 motion within 10 days following the entry of a
25 finding or the return of a verdict. Reasonable
26 notice of the motion shall be served upon the minor
27 or his counsel. If the motion is made by the State,
28 the court shall conduct a hearing to determine if
29 the request should be granted. In making its
30 determination on the motion, the court shall
31 consider among other matters: (a) whether there is
32 evidence that the offense was committed in an
33 aggressive and premeditated manner; (b) the age of
34 the minor; (c) the previous history of the minor;
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1 (d) whether there are facilities particularly
2 available to the Juvenile Court or the Department of
3 Corrections, Juvenile Division, for the treatment
4 and rehabilitation of the minor; (e) whether the
5 best interest of the minor and the security of the
6 public require sentencing under Chapter V of the
7 Unified Code of Corrections; and (f) whether the
8 minor possessed a deadly weapon when committing the
9 offense. The rules of evidence shall be the same as
10 if at trial. If after the hearing the court finds
11 that the minor should be sentenced under Chapter V
12 of the Unified Code of Corrections, then the court
13 shall sentence the minor accordingly having
14 available to it any or all dispositions so
15 prescribed.
16 (7) (a) The definition of delinquent minor under Section
17 5-3 of this Act shall not apply to any minor who at the
18 time of an offense was at least 15 years of age and who
19 is charged with an offense under Section 401 of the
20 Illinois Controlled Substances Act while in a school,
21 regardless of the time of day or the time of year, or any
22 conveyance owned, leased or contracted by a school to
23 transport students to or from school or a school related
24 activity, or residential property owned, operated and
25 managed by a public housing agency, on the real property
26 comprising any school, regardless of the time of day or
27 the time of year, or residential property owned, operated
28 and managed by a public housing agency, or on a public
29 way within 1,000 feet of the real property comprising any
30 school, regardless of the time of day or the time of
31 year, or residential property owned, operated and managed
32 by a public housing agency. School is defined, for the
33 purposes of this Section, as any public or private
34 elementary or secondary school, community college,
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1 college, or university. These charges and all other
2 charges arising out of the same incident shall be
3 prosecuted under the Illinois Controlled Substances Act.
4 (b) If before trial or plea an information or
5 indictment is filed that does not charge an offense
6 specified in paragraph (a) of this subsection (7), the
7 State's Attorney may proceed on the lesser charge or
8 charges, but only under the other provisions of this Act,
9 unless before trial the minor defendant knowingly and
10 with advice of counsel waives, in writing, his or her
11 right to have the matter proceed in Juvenile Court. If
12 before trial or plea an information or indictment is
13 filed that includes one or more charges specified in
14 paragraph (a) of this subsection (7) and additional
15 charges that are not specified in that paragraph, all of
16 the charges arising out of the same incident shall be
17 prosecuted under the Illinois Controlled Substances Act
18 or the Criminal Code of 1961.
19 (c) (i) If after trial or plea the minor is
20 convicted of any offense covered by paragraph (a) of
21 this subsection (7), then, in sentencing the minor
22 the court shall have available any or all
23 dispositions prescribed for that offense under
24 Chapter V of the Unified Code of Corrections.
25 (ii) If after trial or plea the minor is only
26 convicted of an offense not covered by paragraph (a)
27 of this subsection (7), the conviction shall not
28 invalidate the verdict or the prosecution of the
29 minor under the criminal laws of this State;
30 however, unless the State requests a hearing for the
31 purpose of sentencing the minor under Chapter V of
32 the Unified Code of Corrections, the court must
33 thereafter proceed under Sections 5-22 and 5-23 of
34 this Act. Should the State request a hearing it
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1 must do so by written motion within 10 days
2 following the entry of a finding or the return of a
3 verdict. Reasonable notice of the motion shall be
4 served upon the minor or his counsel. If such a
5 motion is made by the State, the court shall conduct
6 a hearing to determine if the request should be
7 granted. In making its determination on the motion,
8 the court shall consider among other matters: (a)
9 whether there is evidence that the offense was
10 committed in an aggressive and premeditated manner;
11 (b) the age of the minor; (c) the previous history
12 of the minor; (d) whether there are facilities
13 particularly available to the Juvenile Court or the
14 Department of Corrections, Juvenile Division, for
15 the treatment and rehabilitation of the minor; (e)
16 whether the best interest of the minor and the
17 security of the public require sentencing under
18 Chapter V of the Unified Code of Corrections; and
19 (f) whether the minor possessed a deadly weapon when
20 committing the offense. The rules of evidence shall
21 be the same as if at trial. If after the hearing
22 the court finds that the minor should be sentenced
23 under Chapter V of the Unified Code of Corrections,
24 then the court shall sentence the minor accordingly
25 having available to it any or all dispositions so
26 prescribed.
27 (8) (a) The definition of delinquent minor under Section
28 5-3 of this Act shall not apply to any minor who is
29 charged with a violation of subsection (a) of Section
30 31-6 or Section 32-10 of the Criminal Code of 1961 when
31 the minor is subject to prosecution under the Criminal
32 Code of 1961 as a result of the application of the
33 provisions of paragraph (a) of subsection (3); subsection
34 (5); paragraph (a) of subsection (6); or paragraph (a) of
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1 subsection (7) of this Section. These charges and all
2 other charges arising out of the same incident shall be
3 prosecuted under the Criminal Code of 1961.
4 (b) If before trial or plea an information or
5 indictment is filed that does not charge an offense
6 specified in paragraph (a) of this subsection (8), the
7 State's Attorney may proceed on the lesser charge or
8 charges, but only in Juvenile Court under the other
9 provisions of this Act, unless before trial the minor
10 defendant knowingly and with advice of counsel waives, in
11 writing, his or her right to have the matter proceed in
12 Juvenile Court. If before trial or plea an information
13 or indictment is filed that includes one or more charges
14 specified in paragraph (a) of this subsection (8) and
15 additional charges that are not specified in that
16 paragraph, all of the charges arising out of the same
17 incident shall be prosecuted under the Criminal Code of
18 1961.
19 (c) If after trial or plea the minor is only
20 convicted of an offense not covered by paragraph (a) of
21 this subsection (8), the conviction shall not invalidate
22 the verdict or the prosecution of the minor under the
23 criminal laws of this State; however, the court must
24 thereafter proceed under Sections 5-22 and 5-23 of this
25 Act. In all other circumstances, in sentencing the court
26 shall have available any or all dispositions prescribed
27 for that offense under Chapter V of the Unified Code of
28 Corrections.
29 (9) (a) The definition of delinquent minor under
30 Section 5-3 of this Act shall not apply to any minor who
31 at the time of an offense was at least 13 years of age
32 and who is charged with first degree murder committed
33 during the course of either aggravated criminal sexual
34 assault, criminal sexual assault, or aggravated
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1 kidnaping. However, this subsection (9) does not include
2 a minor charged with first degree murder based
3 exclusively upon the accountability provisions of the
4 Criminal Code of 1961.
5 (b) If before trial or plea an information or
6 indictment is filed which does not charge first degree
7 murder committed during the course of aggravated criminal
8 sexual assault, criminal sexual assault, or aggravated
9 kidnaping, the State's Attorney may proceed on the lesser
10 charge or charges, but only in Juvenile Court under the
11 other provisions of this Act, unless before trial the
12 minor defendant knowingly and with advice of counsel
13 waives, in writing, his or her right to have the matter
14 proceed in Juvenile Court. If before trial or plea an
15 information or indictment is filed that includes first
16 degree murder committed during the course of aggravated
17 criminal sexual assault, criminal sexual assault, or
18 aggravated kidnaping, as well as additional charges that
19 are not specified in that paragraph, all of the charges
20 arising out of the same incident shall be prosecuted
21 under the Criminal Code of 1961.
22 (c)(i) If after trial or plea the minor is
23 convicted of first degree murder committed during the
24 course of aggravated criminal sexual assault, criminal
25 sexual assault, or aggravated kidnaping, the court shall
26 have available any or all dispositions prescribed for
27 that offense under Chapter V of the Unified Code of
28 Corrections.
29 (ii) If the minor was not yet 15 years of age at
30 the time of the offense, and if after trial or plea the
31 minor is only convicted of an offense other than first
32 degree murder committed during the course of either
33 aggravated criminal sexual assault, criminal sexual
34 assault, or aggravated kidnaping, the conviction shall
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1 not invalidate the verdict or the prosecution of the
2 minor under the criminal laws of the State; however,
3 unless the State requests a hearing for the purpose of
4 sentencing the minor under Chapter V of the Unified Code
5 of Corrections, the Court must proceed under Sections
6 5-22 and 5-23 of this Act. Should the State request a
7 hearing it must do so by written motion within 10 days
8 following the entry of a finding or the return of a
9 verdict. Reasonable notice of the motion shall be served
10 upon the minor or his or her counsel. If the motion is
11 made by the State, the court shall conduct a hearing to
12 determine if the request should be granted. In making
13 its determination on the motion, the court shall consider
14 among other matters: (a) whether there is evidence that
15 the offense was committed in an aggressive and
16 premeditated manner; (b) the age of the minor; (c) the
17 previous history of the minor; (d) whether there are
18 facilities particularly available to the Juvenile Court
19 or the Department of Corrections, Juvenile Division, for
20 the treatment and rehabilitation of the minor; (e)
21 whether the best interest of the minor and the security
22 of the public require sentencing under Chapter V of the
23 Unified Code of Corrections; and (f) whether the minor
24 possessed a deadly weapon when committing the offense.
25 The rules of evidence shall be the same as if at trial.
26 If after the hearing the court finds that the minor
27 should be sentenced under Chapter V of the Unified Code
28 of Corrections, then the court shall sentence the minor
29 accordingly having available to it any or all
30 dispositions so prescribed.
31 (iii) If the minor was at least 15 years of age at
32 the time of the offense and if after trial or plea the
33 minor is only convicted of first degree murder but not of
34 aggravated criminal sexual assault, criminal sexual
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1 assault, or aggravated kidnaping, the court shall have
2 available any or all dispositions prescribed for that
3 offense under Chapter V of the Unified Code of
4 Corrections.
5 (iv) If the minor was at least 15 years of age at
6 the time of the offense and if after trial or plea the
7 minor is only convicted of aggravated criminal sexual
8 assault, criminal sexual assault, or aggravated
9 kidnaping, but not of first degree murder, the court
10 shall have available any or all dispositions prescribed
11 for that offense under Chapter V of the Unified Code of
12 Corrections.
13 (Source: P.A. 88-239; 88-467; 88-670, eff. 12-2-94; 88-680,
14 eff. 1-1-95; 89-235, eff. 8-4-95; 89-362, eff. 1-1-96;
15 89-428, eff. 12-13-95; 89-462, eff. 5-29-96; 89-498, eff.
16 6-27-96.)".