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90_HB1361
705 ILCS 405/5-4 from Ch. 37, par. 805-4
Amends the Juvenile Court Act of 1987. Provides for the
adult criminal prosecution of a minor who was at least 13
years of age at the time of the commission of the offense and
is charged with home invasion.
LRB9004437RCksA
LRB9004437RCksA
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, and, if the juvenile judge designated to hear and
24 determine motions to transfer a case for prosecution in the
25 criminal court determines that there is probable cause to
26 believe that the allegations in the petition and motion are
27 true, there is a rebuttable presumption that the minor is not
28 a fit and proper subject to be dealt with under the Juvenile
29 Court Act of 1987, and that, except as provided in paragraph
30 (b), the case should be transferred to the criminal court.
31 (b) The judge shall enter an order permitting
32 prosecution under the criminal laws of Illinois unless the
33 judge makes a finding based on evidence that the minor would
34 be amenable to the care, treatment, and training programs
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1 available through the facilities of the juvenile court based
2 on an evaluation of the following:
3 (i) The circumstances and gravity of the
4 offense alleged to have been committed by the minor.
5 (ii) The age of the minor.
6 (iii) The degree of criminal sophistication
7 exhibited by the minor.
8 (iv) Whether there is a reasonable likelihood
9 that the minor can be rehabilitated before the
10 expiration of the juvenile court's jurisdiction.
11 (v) The minor's previous history of
12 delinquency.
13 (vi) Whether the offense was committed in an
14 aggressive, premeditated or calculated manner.
15 (vii) Whether there are sufficient facilities
16 available to the juvenile court for the treatment
17 and rehabilitation of the minor.
18 For purposes of subsections (3.1), (3.2), and (3.3)
19 "organized gang" has the meaning ascribed to it in Section 10
20 of the Illinois Streetgang Terrorism Omnibus Prevention Act.
21 (4) Nothing in this Act prohibits or limits the
22 prosecution of any minor for an offense committed on or after
23 his or her 17th birthday even though he or she is at the time
24 of the offense a ward of the court.
25 (5) If an original petition for adjudication of wardship
26 alleges the commission by a minor 13 years of age or over of
27 an act that constitutes a crime under the laws of this State,
28 the minor, with the consent of his or her counsel, may, at
29 any time before commencement of the adjudicatory hearing,
30 file with the court a motion that criminal prosecution be
31 ordered and that the petition be dismissed insofar as the act
32 or acts involved in the criminal proceedings are concerned.
33 If such a motion is filed as herein provided, the court shall
34 enter its order accordingly.
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1 (6) (a) The definition of delinquent minor under Section
2 5-3 of this Act shall not apply to any minor who at the
3 time of an offense was at least 15 years of age and who
4 is charged with first degree murder, aggravated criminal
5 sexual assault, armed robbery when the armed robbery was
6 committed with a firearm, aggravated vehicular hijacking
7 when the hijacking was committed with a firearm, or
8 violation of the provisions of paragraph (1), (3), (4),
9 or (10) of subsection (a) of Section 24-1 of the Criminal
10 Code of 1961 while in the building or on the grounds of
11 any elementary or secondary school, community college,
12 college or university. These charges and all other
13 charges arising out of the same incident shall be
14 prosecuted under the Criminal Code of 1961.
15 (b) If before trial or plea an information or
16 indictment is filed which does not charge an offense
17 specified in paragraph (a) of this subsection (6), the
18 State's Attorney may proceed on the lesser charge or
19 charges, but only in Juvenile Court under the other
20 provisions of this Act, unless before trial the minor
21 defendant knowingly and with advice of counsel waives, in
22 writing, his or her right to have the matter proceed in
23 Juvenile Court. If before trial or plea an information
24 or indictment is filed that includes one or more charges
25 specified in paragraph (a) of this subsection (6) and
26 additional charges that are not specified in that
27 paragraph, all of the charges arising out of the same
28 incident shall be prosecuted under the Criminal Code of
29 1961.
30 (c) (i) If after trial or plea the minor is
31 convicted of any offense covered by paragraph (a) of
32 this subsection (6), then, in sentencing the minor,
33 the court shall have available any or all
34 dispositions prescribed for that offense under
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1 Chapter V of the Unified Code of Corrections.
2 (ii) If after trial or plea the minor is only
3 convicted of an offense not covered by paragraph (a)
4 of this subsection (6), the conviction shall not
5 invalidate the verdict or the prosecution of the
6 minor under the criminal laws of the State; however,
7 unless the State requests a hearing for the purpose
8 of sentencing the minor under Chapter V of the
9 Unified Code of Corrections, the Court must proceed
10 under Sections 5-22 and 5-23 of this Act. Should
11 the State request a hearing it must do so by written
12 motion within 10 days following the entry of a
13 finding or the return of a verdict. Reasonable
14 notice of the motion shall be served upon the minor
15 or his counsel. If the motion is made by the State,
16 the court shall conduct a hearing to determine if
17 the request should be granted. In making its
18 determination on the motion, the court shall
19 consider among other matters: (a) whether there is
20 evidence that the offense was committed in an
21 aggressive and premeditated manner; (b) the age of
22 the minor; (c) the previous history of the minor;
23 (d) whether there are facilities particularly
24 available to the Juvenile Court or the Department of
25 Corrections, Juvenile Division, for the treatment
26 and rehabilitation of the minor; (e) whether the
27 best interest of the minor and the security of the
28 public require sentencing under Chapter V of the
29 Unified Code of Corrections; and (f) whether the
30 minor possessed a deadly weapon when committing the
31 offense. The rules of evidence shall be the same as
32 if at trial. If after the hearing the court finds
33 that the minor should be sentenced under Chapter V
34 of the Unified Code of Corrections, then the court
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1 shall sentence the minor accordingly having
2 available to it any or all dispositions so
3 prescribed.
4 (7) (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 an offense under Section 401 of the
8 Illinois Controlled Substances Act while in a school,
9 regardless of the time of day or the time of year, or any
10 conveyance owned, leased or contracted by a school to
11 transport students to or from school or a school related
12 activity, or residential property owned, operated and
13 managed by a public housing agency, on the real property
14 comprising any school, regardless of the time of day or
15 the time of year, or residential property owned, operated
16 and managed by a public housing agency, or on a public
17 way within 1,000 feet of the real property comprising any
18 school, regardless of the time of day or the time of
19 year, or residential property owned, operated and managed
20 by a public housing agency. School is defined, for the
21 purposes of this Section, as any public or private
22 elementary or secondary school, community college,
23 college, or university. These charges and all other
24 charges arising out of the same incident shall be
25 prosecuted under the Illinois Controlled Substances Act.
26 (b) If before trial or plea an information or
27 indictment is filed that does not charge an offense
28 specified in paragraph (a) of this subsection (7), the
29 State's Attorney may proceed on the lesser charge or
30 charges, but only under the other provisions of this Act,
31 unless before trial the minor defendant knowingly and
32 with advice of counsel waives, in writing, his or her
33 right to have the matter proceed in Juvenile Court. If
34 before trial or plea an information or indictment is
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1 filed that includes one or more charges specified in
2 paragraph (a) of this subsection (7) and additional
3 charges that are not specified in that paragraph, all of
4 the charges arising out of the same incident shall be
5 prosecuted under the Illinois Controlled Substances Act
6 or the Criminal Code of 1961.
7 (c) (i) If after trial or plea the minor is
8 convicted of any offense covered by paragraph (a) of
9 this subsection (7), then, in sentencing the minor
10 the court shall have available any or all
11 dispositions prescribed for that offense under
12 Chapter V of the Unified Code of Corrections.
13 (ii) If after trial or plea the minor is only
14 convicted of an offense not covered by paragraph (a)
15 of this subsection (7), the conviction shall not
16 invalidate the verdict or the prosecution of the
17 minor under the criminal laws of this State;
18 however, unless the State requests a hearing for the
19 purpose of sentencing the minor under Chapter V of
20 the Unified Code of Corrections, the court must
21 thereafter proceed under Sections 5-22 and 5-23 of
22 this Act. Should the State request a hearing it
23 must do so by written motion within 10 days
24 following the entry of a finding or the return of a
25 verdict. Reasonable notice of the motion shall be
26 served upon the minor or his counsel. If such a
27 motion is made by the State, the court shall conduct
28 a hearing to determine if the request should be
29 granted. In making its determination on the motion,
30 the court shall consider among other matters: (a)
31 whether there is evidence that the offense was
32 committed in an aggressive and premeditated manner;
33 (b) the age of the minor; (c) the previous history
34 of the minor; (d) whether there are facilities
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1 particularly available to the Juvenile Court or the
2 Department of Corrections, Juvenile Division, for
3 the treatment and rehabilitation of the minor; (e)
4 whether the best interest of the minor and the
5 security of the public require sentencing under
6 Chapter V of the Unified Code of Corrections; and
7 (f) whether the minor possessed a deadly weapon when
8 committing the offense. The rules of evidence shall
9 be the same as if at trial. If after the hearing
10 the court finds that the minor should be sentenced
11 under Chapter V of the Unified Code of Corrections,
12 then the court shall sentence the minor accordingly
13 having available to it any or all dispositions so
14 prescribed.
15 (8) (a) The definition of delinquent minor under Section
16 5-3 of this Act shall not apply to any minor who is
17 charged with a violation of subsection (a) of Section
18 31-6 or Section 32-10 of the Criminal Code of 1961 when
19 the minor is subject to prosecution under the Criminal
20 Code of 1961 as a result of the application of the
21 provisions of paragraph (a) of subsection (3); subsection
22 (5); paragraph (a) of subsection (6); or paragraph (a) of
23 subsection (7) of this Section. These charges and all
24 other charges arising out of the same incident shall be
25 prosecuted under the Criminal Code of 1961.
26 (b) If before trial or plea an information or
27 indictment is filed that does not charge an offense
28 specified in paragraph (a) of this subsection (8), the
29 State's Attorney may proceed on the lesser charge or
30 charges, but only in Juvenile Court under the other
31 provisions of this Act, unless before trial the minor
32 defendant knowingly and with advice of counsel waives, in
33 writing, his or her right to have the matter proceed in
34 Juvenile Court. If before trial or plea an information
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1 or indictment is filed that includes one or more charges
2 specified in paragraph (a) of this subsection (8) and
3 additional charges that are not specified in that
4 paragraph, all of the charges arising out of the same
5 incident shall be prosecuted under the Criminal Code of
6 1961.
7 (c) If after trial or plea the minor is only
8 convicted of an offense not covered by paragraph (a) of
9 this subsection (8), the conviction shall not invalidate
10 the verdict or the prosecution of the minor under the
11 criminal laws of this State; however, the court must
12 thereafter proceed under Sections 5-22 and 5-23 of this
13 Act. In all other circumstances, in sentencing the court
14 shall have available any or all dispositions prescribed
15 for that offense under Chapter V of the Unified Code of
16 Corrections.
17 (9) (a) The definition of delinquent minor under
18 Section 5-3 of this Act shall not apply to any minor who
19 at the time of an offense was at least 13 years of age
20 and who is charged with first degree murder committed
21 during the course of either aggravated criminal sexual
22 assault, criminal sexual assault, or aggravated
23 kidnaping. However, this subsection (9) does not include
24 a minor charged with first degree murder based
25 exclusively upon the accountability provisions of the
26 Criminal Code of 1961.
27 (b) If before trial or plea an information or
28 indictment is filed which does not charge first degree
29 murder committed during the course of aggravated criminal
30 sexual assault, criminal sexual assault, or aggravated
31 kidnaping, the State's Attorney may proceed on the lesser
32 charge or charges, but only in Juvenile Court under the
33 other provisions of this Act, unless before trial the
34 minor defendant knowingly and with advice of counsel
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1 waives, in writing, his or her right to have the matter
2 proceed in Juvenile Court. If before trial or plea an
3 information or indictment is filed that includes first
4 degree murder committed during the course of aggravated
5 criminal sexual assault, criminal sexual assault, or
6 aggravated kidnaping, as well as additional charges that
7 are not specified in that paragraph, all of the charges
8 arising out of the same incident shall be prosecuted
9 under the Criminal Code of 1961.
10 (c)(i) If after trial or plea the minor is
11 convicted of first degree murder committed during the
12 course of aggravated criminal sexual assault, criminal
13 sexual assault, or aggravated kidnaping, the court shall
14 have available any or all dispositions prescribed for
15 that offense under Chapter V of the Unified Code of
16 Corrections.
17 (ii) If the minor was not yet 15 years of age at
18 the time of the offense, and if after trial or plea the
19 minor is only convicted of an offense other than first
20 degree murder committed during the course of either
21 aggravated criminal sexual assault, criminal sexual
22 assault, or aggravated kidnaping, the conviction shall
23 not invalidate the verdict or the prosecution of the
24 minor under the criminal laws of the State; however,
25 unless the State requests a hearing for the purpose of
26 sentencing the minor under Chapter V of the Unified Code
27 of Corrections, the Court must proceed under Sections
28 5-22 and 5-23 of this Act. Should the State request a
29 hearing it must do so by written motion within 10 days
30 following the entry of a finding or the return of a
31 verdict. Reasonable notice of the motion shall be served
32 upon the minor or his or her counsel. If the motion is
33 made by the State, the court shall conduct a hearing to
34 determine if the request should be granted. In making
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1 its determination on the motion, the court shall consider
2 among other matters: (a) whether there is evidence that
3 the offense was committed in an aggressive and
4 premeditated manner; (b) the age of the minor; (c) the
5 previous history of the minor; (d) whether there are
6 facilities particularly available to the Juvenile Court
7 or the Department of Corrections, Juvenile Division, for
8 the treatment and rehabilitation of the minor; (e)
9 whether the best interest of the minor and the security
10 of the public require sentencing under Chapter V of the
11 Unified Code of Corrections; and (f) whether the minor
12 possessed a deadly weapon when committing the offense.
13 The rules of evidence shall be the same as if at trial.
14 If after the hearing the court finds that the minor
15 should be sentenced under Chapter V of the Unified Code
16 of Corrections, then the court shall sentence the minor
17 accordingly having available to it any or all
18 dispositions so prescribed.
19 (iii) If the minor was at least 15 years of age at
20 the time of the offense and if after trial or plea the
21 minor is only convicted of first degree murder but not of
22 aggravated criminal sexual assault, criminal sexual
23 assault, or aggravated kidnaping, the court shall have
24 available any or all dispositions prescribed for that
25 offense under Chapter V of the Unified Code of
26 Corrections.
27 (iv) If the minor was at least 15 years of age at
28 the time of the offense and if after trial or plea the
29 minor is only convicted of aggravated criminal sexual
30 assault, criminal sexual assault, or aggravated
31 kidnaping, but not of first degree murder, the court
32 shall have available any or all dispositions prescribed
33 for that offense under Chapter V of the Unified Code of
34 Corrections.
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1 (10) (a) The definition of delinquent minor under
2 Section 5-3 of this Act shall not apply to any minor who
3 was at least 13 years of age at the time of the
4 commission of the offense and is charged with home
5 invasion. This charge or charges arising out of the same
6 incident shall be prosecuted under the Criminal Code of
7 1961.
8 (b) If before trial or plea an information or
9 indictment is filed that does not charge an offense
10 specified in paragraph (a) of this subsection (10), the
11 State's Attorney may proceed on the lesser charge or
12 charges, but only in Juvenile Court under the other
13 provisions of this Act, unless before trial the minor
14 defendant knowingly and with advice of counsel waives, in
15 writing, his or her right to have the matter proceed in
16 Juvenile Court. If before trial or plea an information
17 or indictment is filed that includes the charges
18 specified in paragraph (a) of this subsection (10) and
19 additional charges that are not specified in that
20 paragraph, all of the charges arising out of the same
21 incident shall be prosecuted under the Criminal Code of
22 1961.
23 (c) If after trial or plea the minor is only
24 convicted of an offense not covered by paragraph (a) of
25 this subsection (10), the conviction shall not invalidate
26 the verdict or the prosecution of the minor under the
27 criminal laws of this State; however, the court must
28 thereafter proceed under Sections 5-22 and 5-23 of this
29 Act. In all other circumstances, in sentencing the court
30 shall have available any or all dispositions prescribed
31 for that offense under Chapter V of the Unified Code of
32 Corrections.
33 (Source: P.A. 88-239; 88-467; 88-670, eff. 12-2-94; 88-680,
34 eff. 1-1-95; 89-235, eff. 8-4-95; 89-362, eff. 1-1-96;
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1 89-428, eff. 12-13-95; 89-462, eff. 5-29-96; 89-498, eff.
2 6-27-96.)