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90_HB1358
705 ILCS 405/5-4 from Ch. 37, par. 805-4
Amends the Juvenile Court Act of 1987. Permits the
State's Attorney to file a motion to permit adult criminal
prosecution of a minor at least 15 years of age charged with
unlawful use of weapons or delivery of controlled substances
and if the juvenile court judge determines that there is
probable cause to believe the allegations, then there is a
rebuttable presumption that the minor should be tried in
criminal court. Effective immediately.
LRB9004433RCgcA
LRB9004433RCgcA
1 AN ACT to amend the Juvenile Court Act of 1987 by
2 changing Section 5-4.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Juvenile Court Act of 1987 is amended by
6 changing Section 5-4 as follows:
7 (705 ILCS 405/5-4) (from Ch. 37, par. 805-4)
8 Sec. 5-4. Criminal prosecutions limited.
9 (1) Except as provided in this Section, no minor who was
10 under 17 years of age at the time of the alleged offense may
11 be prosecuted under the criminal laws of this State or for
12 violation of an ordinance of any political subdivision of
13 this State.
14 (2) Subject to subsection (5) of Section 5-10, any minor
15 alleged to have committed a traffic, boating or fish and game
16 law violation, whether or not the violation is punishable by
17 imprisonment or an offense punishable by fine only, may be
18 prosecuted for the violation and if found guilty punished
19 under any statute or ordinance relating to the violation,
20 without reference to the procedures set out in this Act,
21 except that detention, if any, must be in compliance with
22 this Act.
23 For the purpose of this Section, "traffic violation"
24 shall include a violation of Section 9-3 of the Criminal Code
25 of 1961 relating to the offense of reckless homicide, or
26 Section 11-501 of the Illinois Vehicle Code, or any similar
27 provision of a local ordinance.
28 (3) (a) If a petition alleges commission by a minor 13
29 years of age or over of an act that constitutes a crime
30 under the laws of this State and, on motion of the
31 State's Attorney, a Juvenile Judge designated by the
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1 Chief Judge of the Circuit to hear and determine those
2 motions, after investigation and hearing but before
3 commencement of the adjudicatory hearing, finds that it
4 is not in the best interests of the minor or of the
5 public to proceed under this Act, the court may enter an
6 order permitting prosecution under the criminal laws.
7 (b) In making its determination on a motion to
8 permit prosecution under the criminal laws, the court
9 shall consider among other matters: (i) whether there is
10 sufficient evidence upon which a grand jury may be
11 expected to return an indictment; (ii) whether there is
12 evidence that the alleged offense was committed in an
13 aggressive and premeditated manner; (iii) the age of the
14 minor; (iv) the previous history of the minor; (v)
15 whether there are facilities particularly available to
16 the Juvenile Court for the treatment and rehabilitation
17 of the minor; (vi) whether the best interest of the minor
18 and the security of the public may require that the minor
19 continue in custody or under supervision for a period
20 extending beyond his minority; (vii) whether the minor
21 possessed a deadly weapon when committing the alleged
22 offense; and (viii) whether the alleged offense is a
23 felony offense under Section 5 of the Cannabis Control
24 Act committed while in a school, regardless of the time
25 of day or the time of year, or any conveyance owned,
26 leased or contracted by a school to transport students to
27 or from school or a school related activity, on the real
28 property comprising any school, regardless of the time of
29 day or the time of year, or on a public way within 1,000
30 feet of the real property comprising any school,
31 regardless of the time of day or the time of year.
32 School is defined, for the purposes of this Section, as
33 any public or private elementary or secondary school,
34 community college, college, or university. The rules of
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1 evidence shall be the same as under Section 5-22 of this
2 Act, but no hearing on the motion may be commenced unless
3 the minor is represented in court by counsel.
4 (c) If criminal proceedings are instituted, the
5 petition shall be dismissed insofar as the act or acts
6 involved in the criminal proceedings are concerned.
7 Taking of evidence in an adjudicatory hearing in any such
8 case is a bar to criminal proceedings based upon the
9 conduct alleged in the petition.
10 (3.1) If a petition alleges commission by a minor 15
11 years of age or older of an act that constitutes a forcible
12 felony under the laws of this State, and if a motion by the
13 State's Attorney to prosecute the minor under the criminal
14 laws of Illinois for the alleged forcible felony alleges that
15 (i) the minor has previously been adjudicated delinquent for
16 commission of an act that constitutes a felony under the laws
17 of this State or any other state and (ii) the act that
18 constitutes the offense was committed in furtherance of
19 criminal activity by an organized gang, the Juvenile Judge
20 designated to hear and determine those motions shall, upon
21 determining that there is probable cause that both
22 allegations are true, enter an order permitting prosecution
23 under the criminal laws of Illinois.
24 (3.2) If a petition alleges commission by a minor 15
25 years of age or older of an act that constitutes a felony
26 under the laws of this State, and if a motion by a State's
27 Attorney to prosecute the minor under the criminal laws of
28 Illinois for the alleged felony alleges that (i) the minor
29 has previously been adjudicated delinquent for commission of
30 an act that constitutes a forcible felony under the laws of
31 this State or any other state and (ii) the act that
32 constitutes the offense was committed in furtherance of
33 criminal activities by an organized gang, the Juvenile Judge
34 designated to hear and determine those motions shall, upon
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1 determining that there is probable cause that both
2 allegations are true, enter an order permitting prosecution
3 under the criminal laws of Illinois.
4 (3.3) (a) If the State's Attorney files a motion under
5 subsection (3)(a) to permit prosecution under the criminal
6 laws and the petition alleges the commission by a minor 15
7 years of age or older of: (i) a Class X felony other than
8 armed violence; (ii) aggravated discharge of a firearm;
9 (iii) armed violence with a firearm when the predicate
10 offense is a Class 1 or Class 2 felony and the State's
11 Attorney's motion to transfer the case alleges that the
12 offense committed is in furtherance of the criminal
13 activities of an organized gang and the case is not required
14 to be prosecuted under the criminal laws of Illinois as
15 provided by subsection (3.1) or (3.2); (iv) armed violence
16 with a firearm when the predicate offense is a violation of
17 Section 401, subsection (a) of Section 402, Section 404,
18 Section 405, Section 405.1, subsection (a) of Section 405.2,
19 Section 407, Section 407.1, or Section 407.2 of the Illinois
20 Controlled Substances Act; or (v) armed violence when the
21 weapon involved was a machine gun or other weapon described
22 in subsection (a)(7) of Section 24-1 of the Criminal Code of
23 1961; (vi) unlawful use of weapons under Section 24-1 of the
24 Criminal Code of 1961; or (vii) a violation of Section 401 of
25 the Illinois Controlled Substances Act, and, if the juvenile
26 judge designated to hear and determine motions to transfer a
27 case for prosecution in the criminal court determines that
28 there is probable cause to believe that the allegations in
29 the petition and motion are true, there is a rebuttable
30 presumption that the minor is not a fit and proper subject to
31 be dealt with under the Juvenile Court Act of 1987, and that,
32 except as provided in paragraph (b), the case should be
33 transferred to the criminal court.
34 (b) The judge shall enter an order permitting
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1 prosecution under the criminal laws of Illinois unless the
2 judge makes a finding based on evidence that the minor would
3 be amenable to the care, treatment, and training programs
4 available through the facilities of the juvenile court based
5 on an evaluation of the following:
6 (i) The circumstances and gravity of the
7 offense alleged to have been committed by the minor.
8 (ii) The age of the minor.
9 (iii) The degree of criminal sophistication
10 exhibited by the minor.
11 (iv) Whether there is a reasonable likelihood
12 that the minor can be rehabilitated before the
13 expiration of the juvenile court's jurisdiction.
14 (v) The minor's previous history of
15 delinquency.
16 (vi) Whether the offense was committed in an
17 aggressive, premeditated or calculated manner.
18 (vii) Whether there are sufficient facilities
19 available to the juvenile court for the treatment
20 and rehabilitation of the minor.
21 For purposes of subsections (3.1), (3.2), and (3.3)
22 "organized gang" has the meaning ascribed to it in Section 10
23 of the Illinois Streetgang Terrorism Omnibus Prevention Act.
24 (4) Nothing in this Act prohibits or limits the
25 prosecution of any minor for an offense committed on or after
26 his or her 17th birthday even though he or she is at the time
27 of the offense a ward of the court.
28 (5) If an original petition for adjudication of wardship
29 alleges the commission by a minor 13 years of age or over of
30 an act that constitutes a crime under the laws of this State,
31 the minor, with the consent of his or her counsel, may, at
32 any time before commencement of the adjudicatory hearing,
33 file with the court a motion that criminal prosecution be
34 ordered and that the petition be dismissed insofar as the act
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1 or acts involved in the criminal proceedings are concerned.
2 If such a motion is filed as herein provided, the court shall
3 enter its order accordingly.
4 (6) (a) The definition of delinquent minor under Section
5 5-3 of this Act shall not apply to any minor who at the
6 time of an offense was at least 15 years of age and who
7 is charged with first degree murder, aggravated criminal
8 sexual assault, armed robbery when the armed robbery was
9 committed with a firearm, aggravated vehicular hijacking
10 when the hijacking was committed with a firearm, or
11 violation of the provisions of paragraph (1), (3), (4),
12 or (10) of subsection (a) of Section 24-1 of the Criminal
13 Code of 1961 while in the building or on the grounds of
14 any elementary or secondary school, community college,
15 college or university. These charges and all other
16 charges arising out of the same incident shall be
17 prosecuted under the Criminal Code of 1961.
18 (b) If before trial or plea an information or
19 indictment is filed which does not charge an offense
20 specified in paragraph (a) of this subsection (6), the
21 State's Attorney may proceed on the lesser charge or
22 charges, but only in Juvenile Court under the other
23 provisions of this Act, unless before trial the minor
24 defendant knowingly and with advice of counsel waives, in
25 writing, his or her right to have the matter proceed in
26 Juvenile Court. If before trial or plea an information
27 or indictment is filed that includes one or more charges
28 specified in paragraph (a) of this subsection (6) and
29 additional charges that are not specified in that
30 paragraph, all of the charges arising out of the same
31 incident shall be prosecuted under the Criminal Code of
32 1961.
33 (c) (i) If after trial or plea the minor is
34 convicted of any offense covered by paragraph (a) of
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1 this subsection (6), then, in sentencing the minor,
2 the court shall have available any or all
3 dispositions prescribed for that offense under
4 Chapter V of the Unified Code of Corrections.
5 (ii) If after trial or plea the minor is only
6 convicted of an offense not covered by paragraph (a)
7 of this subsection (6), the conviction shall not
8 invalidate the verdict or the prosecution of the
9 minor under the criminal laws of the State; however,
10 unless the State requests a hearing for the purpose
11 of sentencing the minor under Chapter V of the
12 Unified Code of Corrections, the Court must proceed
13 under Sections 5-22 and 5-23 of this Act. Should
14 the State request a hearing it must do so by written
15 motion within 10 days following the entry of a
16 finding or the return of a verdict. Reasonable
17 notice of the motion shall be served upon the minor
18 or his counsel. If the motion is made by the State,
19 the court shall conduct a hearing to determine if
20 the request should be granted. In making its
21 determination on the motion, the court shall
22 consider among other matters: (a) whether there is
23 evidence that the offense was committed in an
24 aggressive and premeditated manner; (b) the age of
25 the minor; (c) the previous history of the minor;
26 (d) whether there are facilities particularly
27 available to the Juvenile Court or the Department of
28 Corrections, Juvenile Division, for the treatment
29 and rehabilitation of the minor; (e) whether the
30 best interest of the minor and the security of the
31 public require sentencing under Chapter V of the
32 Unified Code of Corrections; and (f) whether the
33 minor possessed a deadly weapon when committing the
34 offense. The rules of evidence shall be the same as
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1 if at trial. If after the hearing the court finds
2 that the minor should be sentenced under Chapter V
3 of the Unified Code of Corrections, then the court
4 shall sentence the minor accordingly having
5 available to it any or all dispositions so
6 prescribed.
7 (7) (a) The definition of delinquent minor under Section
8 5-3 of this Act shall not apply to any minor who at the
9 time of an offense was at least 15 years of age and who
10 is charged with an offense under Section 401 of the
11 Illinois Controlled Substances Act while in a school,
12 regardless of the time of day or the time of year, or any
13 conveyance owned, leased or contracted by a school to
14 transport students to or from school or a school related
15 activity, or residential property owned, operated and
16 managed by a public housing agency, on the real property
17 comprising any school, regardless of the time of day or
18 the time of year, or residential property owned, operated
19 and managed by a public housing agency, or on a public
20 way within 1,000 feet of the real property comprising any
21 school, regardless of the time of day or the time of
22 year, or residential property owned, operated and managed
23 by a public housing agency. School is defined, for the
24 purposes of this Section, as any public or private
25 elementary or secondary school, community college,
26 college, or university. These charges and all other
27 charges arising out of the same incident shall be
28 prosecuted under the Illinois Controlled Substances Act.
29 (b) If before trial or plea an information or
30 indictment is filed that does not charge an offense
31 specified in paragraph (a) of this subsection (7), the
32 State's Attorney may proceed on the lesser charge or
33 charges, but only under the other provisions of this Act,
34 unless before trial the minor defendant knowingly and
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1 with advice of counsel waives, in writing, his or her
2 right to have the matter proceed in Juvenile Court. If
3 before trial or plea an information or indictment is
4 filed that includes one or more charges specified in
5 paragraph (a) of this subsection (7) and additional
6 charges that are not specified in that paragraph, all of
7 the charges arising out of the same incident shall be
8 prosecuted under the Illinois Controlled Substances Act
9 or the Criminal Code of 1961.
10 (c) (i) If after trial or plea the minor is
11 convicted of any offense covered by paragraph (a) of
12 this subsection (7), then, in sentencing the minor
13 the court shall have available any or all
14 dispositions prescribed for that offense under
15 Chapter V of the Unified Code of Corrections.
16 (ii) If after trial or plea the minor is only
17 convicted of an offense not covered by paragraph (a)
18 of this subsection (7), the conviction shall not
19 invalidate the verdict or the prosecution of the
20 minor under the criminal laws of this State;
21 however, unless the State requests a hearing for the
22 purpose of sentencing the minor under Chapter V of
23 the Unified Code of Corrections, the court must
24 thereafter proceed under Sections 5-22 and 5-23 of
25 this Act. Should the State request a hearing it
26 must do so by written motion within 10 days
27 following the entry of a finding or the return of a
28 verdict. Reasonable notice of the motion shall be
29 served upon the minor or his counsel. If such a
30 motion is made by the State, the court shall conduct
31 a hearing to determine if the request should be
32 granted. In making its determination on the motion,
33 the court shall consider among other matters: (a)
34 whether there is evidence that the offense was
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1 committed in an aggressive and premeditated manner;
2 (b) the age of the minor; (c) the previous history
3 of the minor; (d) whether there are facilities
4 particularly available to the Juvenile Court or the
5 Department of Corrections, Juvenile Division, for
6 the treatment and rehabilitation of the minor; (e)
7 whether the best interest of the minor and the
8 security of the public require sentencing under
9 Chapter V of the Unified Code of Corrections; and
10 (f) whether the minor possessed a deadly weapon when
11 committing the offense. The rules of evidence shall
12 be the same as if at trial. If after the hearing
13 the court finds that the minor should be sentenced
14 under Chapter V of the Unified Code of Corrections,
15 then the court shall sentence the minor accordingly
16 having available to it any or all dispositions so
17 prescribed.
18 (8) (a) The definition of delinquent minor under Section
19 5-3 of this Act shall not apply to any minor who is
20 charged with a violation of subsection (a) of Section
21 31-6 or Section 32-10 of the Criminal Code of 1961 when
22 the minor is subject to prosecution under the Criminal
23 Code of 1961 as a result of the application of the
24 provisions of paragraph (a) of subsection (3); subsection
25 (5); paragraph (a) of subsection (6); or paragraph (a) of
26 subsection (7) of this Section. These charges and all
27 other charges arising out of the same incident shall be
28 prosecuted under the Criminal Code of 1961.
29 (b) If before trial or plea an information or
30 indictment is filed that does not charge an offense
31 specified in paragraph (a) of this subsection (8), the
32 State's Attorney may proceed on the lesser charge or
33 charges, but only in Juvenile Court under the other
34 provisions of this Act, unless before trial the minor
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1 defendant knowingly and with advice of counsel waives, in
2 writing, his or her right to have the matter proceed in
3 Juvenile Court. If before trial or plea an information
4 or indictment is filed that includes one or more charges
5 specified in paragraph (a) of this subsection (8) and
6 additional charges that are not specified in that
7 paragraph, all of the charges arising out of the same
8 incident shall be prosecuted under the Criminal Code of
9 1961.
10 (c) If after trial or plea the minor is only
11 convicted of an offense not covered by paragraph (a) of
12 this subsection (8), the conviction shall not invalidate
13 the verdict or the prosecution of the minor under the
14 criminal laws of this State; however, the court must
15 thereafter proceed under Sections 5-22 and 5-23 of this
16 Act. In all other circumstances, in sentencing the court
17 shall have available any or all dispositions prescribed
18 for that offense under Chapter V of the Unified Code of
19 Corrections.
20 (9) (a) The definition of delinquent minor under
21 Section 5-3 of this Act shall not apply to any minor who
22 at the time of an offense was at least 13 years of age
23 and who is charged with first degree murder committed
24 during the course of either aggravated criminal sexual
25 assault, criminal sexual assault, or aggravated
26 kidnaping. However, this subsection (9) does not include
27 a minor charged with first degree murder based
28 exclusively upon the accountability provisions of the
29 Criminal Code of 1961.
30 (b) If before trial or plea an information or
31 indictment is filed which does not charge first degree
32 murder committed during the course of aggravated criminal
33 sexual assault, criminal sexual assault, or aggravated
34 kidnaping, the State's Attorney may proceed on the lesser
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1 charge or charges, but only in Juvenile Court under the
2 other provisions of this Act, unless before trial the
3 minor defendant knowingly and with advice of counsel
4 waives, in writing, his or her right to have the matter
5 proceed in Juvenile Court. If before trial or plea an
6 information or indictment is filed that includes first
7 degree murder committed during the course of aggravated
8 criminal sexual assault, criminal sexual assault, or
9 aggravated kidnaping, as well as additional charges that
10 are not specified in that paragraph, all of the charges
11 arising out of the same incident shall be prosecuted
12 under the Criminal Code of 1961.
13 (c)(i) If after trial or plea the minor is
14 convicted of first degree murder committed during the
15 course of aggravated criminal sexual assault, criminal
16 sexual assault, or aggravated kidnaping, the court shall
17 have available any or all dispositions prescribed for
18 that offense under Chapter V of the Unified Code of
19 Corrections.
20 (ii) If the minor was not yet 15 years of age at
21 the time of the offense, and if after trial or plea the
22 minor is only convicted of an offense other than first
23 degree murder committed during the course of either
24 aggravated criminal sexual assault, criminal sexual
25 assault, or aggravated kidnaping, the conviction shall
26 not invalidate the verdict or the prosecution of the
27 minor under the criminal laws of the State; however,
28 unless the State requests a hearing for the purpose of
29 sentencing the minor under Chapter V of the Unified Code
30 of Corrections, the Court must proceed under Sections
31 5-22 and 5-23 of this Act. Should the State request a
32 hearing it must do so by written motion within 10 days
33 following the entry of a finding or the return of a
34 verdict. Reasonable notice of the motion shall be served
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1 upon the minor or his or her counsel. If the motion is
2 made by the State, the court shall conduct a hearing to
3 determine if the request should be granted. In making
4 its determination on the motion, the court shall consider
5 among other matters: (a) whether there is evidence that
6 the offense was committed in an aggressive and
7 premeditated manner; (b) the age of the minor; (c) the
8 previous history of the minor; (d) whether there are
9 facilities particularly available to the Juvenile Court
10 or the Department of Corrections, Juvenile Division, for
11 the treatment and rehabilitation of the minor; (e)
12 whether the best interest of the minor and the security
13 of the public require sentencing under Chapter V of the
14 Unified Code of Corrections; and (f) whether the minor
15 possessed a deadly weapon when committing the offense.
16 The rules of evidence shall be the same as if at trial.
17 If after the hearing the court finds that the minor
18 should be sentenced under Chapter V of the Unified Code
19 of Corrections, then the court shall sentence the minor
20 accordingly having available to it any or all
21 dispositions so prescribed.
22 (iii) If the minor was at least 15 years of age at
23 the time of the offense and if after trial or plea the
24 minor is only convicted of first degree murder but not of
25 aggravated criminal sexual assault, criminal sexual
26 assault, or aggravated kidnaping, the court shall have
27 available any or all dispositions prescribed for that
28 offense under Chapter V of the Unified Code of
29 Corrections.
30 (iv) If the minor was at least 15 years of age at
31 the time of the offense and if after trial or plea the
32 minor is only convicted of aggravated criminal sexual
33 assault, criminal sexual assault, or aggravated
34 kidnaping, but not of first degree murder, the court
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1 shall have available any or all dispositions prescribed
2 for that offense under Chapter V of the Unified Code of
3 Corrections.
4 (Source: P.A. 88-239; 88-467; 88-670, eff. 12-2-94; 88-680,
5 eff. 1-1-95; 89-235, eff. 8-4-95; 89-362, eff. 1-1-96;
6 89-428, eff. 12-13-95; 89-462, eff. 5-29-96; 89-498, eff.
7 6-27-96.)
8 Section 99. Effective date. This Act takes effect upon
9 becoming law.