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90_HB1362
705 ILCS 405/5-4 from Ch. 37, par. 805-4
Amends the Juvenile Court Act. Provides that if a
petition alleges commission by a minor age 13 or older of an
act that constitutes a felony, and if a motion by a State's
Attorney to prosecute the minor under the criminal law
alleges that the minor has previously been adjudicated
delinquent for commission of 2 acts that constitute felonies,
then the court, upon determining that there is probable cause
that the allegation is true, shall permit prosecution of the
minor under the criminal laws.
LRB9004436RCks
LRB9004436RCks
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 (3.4) If a petition alleges commission by a minor 13
22 years of age or older of an act that constitutes a felony
23 under the laws of this State, and if a motion by a State's
24 Attorney to prosecute the minor under the criminal laws of
25 Illinois for the alleged felony alleges that the minor has
26 previously been adjudicated delinquent for commission of 2
27 acts that constitute felonies under the laws of this State or
28 any other state, the Juvenile Judge designated to hear and
29 determine those motions shall, upon determining that there is
30 probable cause that the allegation is true, enter an order
31 permitting prosecution under the criminal laws of Illinois.
32 (4) Nothing in this Act prohibits or limits the
33 prosecution of any minor for an offense committed on or after
34 his or her 17th birthday even though he or she is at the time
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1 of the offense a ward of the court.
2 (5) If an original petition for adjudication of wardship
3 alleges the commission by a minor 13 years of age or over of
4 an act that constitutes a crime under the laws of this State,
5 the minor, with the consent of his or her counsel, may, at
6 any time before commencement of the adjudicatory hearing,
7 file with the court a motion that criminal prosecution be
8 ordered and that the petition be dismissed insofar as the act
9 or acts involved in the criminal proceedings are concerned.
10 If such a motion is filed as herein provided, the court shall
11 enter its order accordingly.
12 (6) (a) The definition of delinquent minor under Section
13 5-3 of this Act shall not apply to any minor who at the
14 time of an offense was at least 15 years of age and who
15 is charged with first degree murder, aggravated criminal
16 sexual assault, armed robbery when the armed robbery was
17 committed with a firearm, aggravated vehicular hijacking
18 when the hijacking was committed with a firearm, or
19 violation of the provisions of paragraph (1), (3), (4),
20 or (10) of subsection (a) of Section 24-1 of the Criminal
21 Code of 1961 while in the building or on the grounds of
22 any 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 Criminal Code of 1961.
26 (b) If before trial or plea an information or
27 indictment is filed which does not charge an offense
28 specified in paragraph (a) of this subsection (6), 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 (6) 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) (i) If after trial or plea the minor is
8 convicted of any offense covered by paragraph (a) of
9 this subsection (6), 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 (6), the conviction shall not
16 invalidate the verdict or the prosecution of the
17 minor under the criminal laws of the State; however,
18 unless the State requests a hearing for the purpose
19 of sentencing the minor under Chapter V of the
20 Unified Code of Corrections, the Court must proceed
21 under Sections 5-22 and 5-23 of this Act. Should
22 the State request a hearing it must do so by written
23 motion within 10 days following the entry of a
24 finding or the return of a verdict. Reasonable
25 notice of the motion shall be served upon the minor
26 or his counsel. If the motion is made by the State,
27 the court shall conduct a hearing to determine if
28 the request should be granted. In making its
29 determination on the motion, the court shall
30 consider among other matters: (a) whether there is
31 evidence that the offense was committed in an
32 aggressive and premeditated manner; (b) the age of
33 the minor; (c) the previous history of the minor;
34 (d) whether there are facilities particularly
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1 available to the Juvenile Court or the Department of
2 Corrections, Juvenile Division, for the treatment
3 and rehabilitation of the minor; (e) whether the
4 best interest of the minor and the security of the
5 public require sentencing under Chapter V of the
6 Unified Code of Corrections; and (f) whether the
7 minor possessed a deadly weapon when committing the
8 offense. The rules of evidence shall be the same as
9 if at trial. If after the hearing the court finds
10 that the minor should be sentenced under Chapter V
11 of the Unified Code of Corrections, then the court
12 shall sentence the minor accordingly having
13 available to it any or all dispositions so
14 prescribed.
15 (7) (a) The definition of delinquent minor under Section
16 5-3 of this Act shall not apply to any minor who at the
17 time of an offense was at least 15 years of age and who
18 is charged with an offense under Section 401 of the
19 Illinois Controlled Substances Act while in a school,
20 regardless of the time of day or the time of year, or any
21 conveyance owned, leased or contracted by a school to
22 transport students to or from school or a school related
23 activity, or residential property owned, operated and
24 managed by a public housing agency, on the real property
25 comprising any school, regardless of the time of day or
26 the time of year, or residential property owned, operated
27 and managed by a public housing agency, or on a public
28 way within 1,000 feet of the real property comprising any
29 school, regardless of the time of day or the time of
30 year, or residential property owned, operated and managed
31 by a public housing agency. School is defined, for the
32 purposes of this Section, as any public or private
33 elementary or secondary school, community college,
34 college, or university. These charges and all other
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1 charges arising out of the same incident shall be
2 prosecuted under the Illinois Controlled Substances Act.
3 (b) If before trial or plea an information or
4 indictment is filed that does not charge an offense
5 specified in paragraph (a) of this subsection (7), the
6 State's Attorney may proceed on the lesser charge or
7 charges, but only under the other provisions of this Act,
8 unless before trial the minor defendant knowingly and
9 with advice of counsel waives, in writing, his or her
10 right to have the matter proceed in Juvenile Court. If
11 before trial or plea an information or indictment is
12 filed that includes one or more charges specified in
13 paragraph (a) of this subsection (7) and additional
14 charges that are not specified in that paragraph, all of
15 the charges arising out of the same incident shall be
16 prosecuted under the Illinois Controlled Substances Act
17 or the Criminal Code of 1961.
18 (c) (i) If after trial or plea the minor is
19 convicted of any offense covered by paragraph (a) of
20 this subsection (7), then, in sentencing the minor
21 the court shall have available any or all
22 dispositions prescribed for that offense under
23 Chapter V of the Unified Code of Corrections.
24 (ii) If after trial or plea the minor is only
25 convicted of an offense not covered by paragraph (a)
26 of this subsection (7), the conviction shall not
27 invalidate the verdict or the prosecution of the
28 minor under the criminal laws of this State;
29 however, unless the State requests a hearing for the
30 purpose of sentencing the minor under Chapter V of
31 the Unified Code of Corrections, the court must
32 thereafter proceed under Sections 5-22 and 5-23 of
33 this Act. Should the State request a hearing it
34 must do so by written motion within 10 days
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1 following the entry of a finding or the return of a
2 verdict. Reasonable notice of the motion shall be
3 served upon the minor or his counsel. If such a
4 motion is made by the State, the court shall conduct
5 a hearing to determine if the request should be
6 granted. In making its determination on the motion,
7 the court shall consider among other matters: (a)
8 whether there is evidence that the offense was
9 committed in an aggressive and premeditated manner;
10 (b) the age of the minor; (c) the previous history
11 of the minor; (d) whether there are facilities
12 particularly available to the Juvenile Court or the
13 Department of Corrections, Juvenile Division, for
14 the treatment and rehabilitation of the minor; (e)
15 whether the best interest of the minor and the
16 security of the public require sentencing under
17 Chapter V of the Unified Code of Corrections; and
18 (f) whether the minor possessed a deadly weapon when
19 committing the offense. The rules of evidence shall
20 be the same as if at trial. If after the hearing
21 the court finds that the minor should be sentenced
22 under Chapter V of the Unified Code of Corrections,
23 then the court shall sentence the minor accordingly
24 having available to it any or all dispositions so
25 prescribed.
26 (8) (a) The definition of delinquent minor under Section
27 5-3 of this Act shall not apply to any minor who is
28 charged with a violation of subsection (a) of Section
29 31-6 or Section 32-10 of the Criminal Code of 1961 when
30 the minor is subject to prosecution under the Criminal
31 Code of 1961 as a result of the application of the
32 provisions of paragraph (a) of subsection (3); subsection
33 (5); paragraph (a) of subsection (6); or paragraph (a) of
34 subsection (7) of this Section. These charges and all
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1 other charges arising out of the same incident shall be
2 prosecuted under the Criminal Code of 1961.
3 (b) If before trial or plea an information or
4 indictment is filed that does not charge an offense
5 specified in paragraph (a) of this subsection (8), the
6 State's Attorney may proceed on the lesser charge or
7 charges, but only in Juvenile Court under the other
8 provisions of this Act, unless before trial the minor
9 defendant knowingly and with advice of counsel waives, in
10 writing, his or her right to have the matter proceed in
11 Juvenile Court. If before trial or plea an information
12 or indictment is filed that includes one or more charges
13 specified in paragraph (a) of this subsection (8) and
14 additional charges that are not specified in that
15 paragraph, all of the charges arising out of the same
16 incident shall be prosecuted under the Criminal Code of
17 1961.
18 (c) If after trial or plea the minor is only
19 convicted of an offense not covered by paragraph (a) of
20 this subsection (8), the conviction shall not invalidate
21 the verdict or the prosecution of the minor under the
22 criminal laws of this State; however, the court must
23 thereafter proceed under Sections 5-22 and 5-23 of this
24 Act. In all other circumstances, in sentencing the court
25 shall have available any or all dispositions prescribed
26 for that offense under Chapter V of the Unified Code of
27 Corrections.
28 (9) (a) The definition of delinquent minor under
29 Section 5-3 of this Act shall not apply to any minor who
30 at the time of an offense was at least 13 years of age
31 and who is charged with first degree murder committed
32 during the course of either aggravated criminal sexual
33 assault, criminal sexual assault, or aggravated
34 kidnaping. However, this subsection (9) does not include
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1 a minor charged with first degree murder based
2 exclusively upon the accountability provisions of the
3 Criminal Code of 1961.
4 (b) If before trial or plea an information or
5 indictment is filed which does not charge first degree
6 murder committed during the course of aggravated criminal
7 sexual assault, criminal sexual assault, or aggravated
8 kidnaping, the State's Attorney may proceed on the lesser
9 charge or charges, but only in Juvenile Court under the
10 other provisions of this Act, unless before trial the
11 minor defendant knowingly and with advice of counsel
12 waives, in writing, his or her right to have the matter
13 proceed in Juvenile Court. If before trial or plea an
14 information or indictment is filed that includes first
15 degree murder committed during the course of aggravated
16 criminal sexual assault, criminal sexual assault, or
17 aggravated kidnaping, as well as additional charges that
18 are not specified in that paragraph, all of the charges
19 arising out of the same incident shall be prosecuted
20 under the Criminal Code of 1961.
21 (c)(i) If after trial or plea the minor is
22 convicted of first degree murder committed during the
23 course of aggravated criminal sexual assault, criminal
24 sexual assault, or aggravated kidnaping, the court shall
25 have available any or all dispositions prescribed for
26 that offense under Chapter V of the Unified Code of
27 Corrections.
28 (ii) If the minor was not yet 15 years of age at
29 the time of the offense, and if after trial or plea the
30 minor is only convicted of an offense other than first
31 degree murder committed during the course of either
32 aggravated criminal sexual assault, criminal sexual
33 assault, or aggravated kidnaping, the conviction shall
34 not invalidate the verdict or the prosecution of the
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1 minor under the criminal laws of the State; however,
2 unless the State requests a hearing for the purpose of
3 sentencing the minor under Chapter V of the Unified Code
4 of Corrections, the Court must proceed under Sections
5 5-22 and 5-23 of this Act. Should the State request a
6 hearing it must do so by written motion within 10 days
7 following the entry of a finding or the return of a
8 verdict. Reasonable notice of the motion shall be served
9 upon the minor or his or her counsel. If the motion is
10 made by the State, the court shall conduct a hearing to
11 determine if the request should be granted. In making
12 its determination on the motion, the court shall consider
13 among other matters: (a) whether there is evidence that
14 the offense was committed in an aggressive and
15 premeditated manner; (b) the age of the minor; (c) the
16 previous history of the minor; (d) whether there are
17 facilities particularly available to the Juvenile Court
18 or the Department of Corrections, Juvenile Division, for
19 the treatment and rehabilitation of the minor; (e)
20 whether the best interest of the minor and the security
21 of the public require sentencing under Chapter V of the
22 Unified Code of Corrections; and (f) whether the minor
23 possessed a deadly weapon when committing the offense.
24 The rules of evidence shall be the same as if at trial.
25 If after the hearing the court finds that the minor
26 should be sentenced under Chapter V of the Unified Code
27 of Corrections, then the court shall sentence the minor
28 accordingly having available to it any or all
29 dispositions so prescribed.
30 (iii) 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 first degree murder but not of
33 aggravated criminal sexual assault, criminal sexual
34 assault, or aggravated kidnaping, the court shall have
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1 available any or all dispositions prescribed for that
2 offense under Chapter V of the Unified Code of
3 Corrections.
4 (iv) If the minor was at least 15 years of age at
5 the time of the offense and if after trial or plea the
6 minor is only convicted of aggravated criminal sexual
7 assault, criminal sexual assault, or aggravated
8 kidnaping, but not of first degree murder, the court
9 shall have available any or all dispositions prescribed
10 for that offense under Chapter V of the Unified Code of
11 Corrections.
12 (Source: P.A. 88-239; 88-467; 88-670, eff. 12-2-94; 88-680,
13 eff. 1-1-95; 89-235, eff. 8-4-95; 89-362, eff. 1-1-96;
14 89-428, eff. 12-13-95; 89-462, eff. 5-29-96; 89-498, eff.
15 6-27-96.)