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90_HB3158
720 ILCS 5/9-1 from Ch. 38, par. 9-1
730 ILCS 5/3-6-3 from Ch. 38, par. 1003-6-3
730 ILCS 5/5-4-1 from Ch. 38, par. 1005-4-1
730 ILCS 5/5-8-1 from Ch. 38, par. 1005-8-1
Amends the Criminal Code of 1961. Provides that it is an
aggravating factor for first degree murder that the murder
was committed as a result of certain streetgang related
criminal activity. Amends the Unified Code of Corrections.
Provides that a prisoner serving a sentence for a forcible
felony when the court has made and entered a finding that the
conduct leading to the conviction of the forcible felony was
streetgang related criminal activity shall receive no more
than 4.5 days of good conduct credit for each month of his or
her sentence of imprisonment. Provides that the penalty for
certain first degree murders that were the result of certain
streetgang related criminal activity, if the death penalty
was not imposed, is a term of imprisonment of not less than
30 years and not more than 80 years.
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1 AN ACT in relation to streetgangs, amending named Acts.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 5. The Criminal Code of 1961 is amended by
5 changing Section 9-1 as follows:
6 (720 ILCS 5/9-1) (from Ch. 38, par. 9-1)
7 Sec. 9-1. First degree Murder - Death penalties -
8 Exceptions - Separate Hearings - Proof - Findings - Appellate
9 procedures - Reversals.
10 (a) A person who kills an individual without lawful
11 justification commits first degree murder if, in performing
12 the acts which cause the death:
13 (1) he either intends to kill or do great bodily
14 harm to that individual or another, or knows that such
15 acts will cause death to that individual or another; or
16 (2) he knows that such acts create a strong
17 probability of death or great bodily harm to that
18 individual or another; or
19 (3) he is attempting or committing a forcible
20 felony other than second degree murder.
21 (b) Aggravating Factors. A defendant who at the time of
22 the commission of the offense has attained the age of 18 or
23 more and who has been found guilty of first degree murder may
24 be sentenced to death if:
25 (1) the murdered individual was a peace officer or
26 fireman killed in the course of performing his official
27 duties, to prevent the performance of his official
28 duties, or in retaliation for performing his official
29 duties, and the defendant knew or should have known that
30 the murdered individual was a peace officer or fireman;
31 or
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1 (2) the murdered individual was an employee of an
2 institution or facility of the Department of Corrections,
3 or any similar local correctional agency, killed in the
4 course of performing his official duties, to prevent the
5 performance of his official duties, or in retaliation for
6 performing his official duties, or the murdered
7 individual was an inmate at such institution or facility
8 and was killed on the grounds thereof, or the murdered
9 individual was otherwise present in such institution or
10 facility with the knowledge and approval of the chief
11 administrative officer thereof; or
12 (3) the defendant has been convicted of murdering
13 two or more individuals under subsection (a) of this
14 Section or under any law of the United States or of any
15 state which is substantially similar to subsection (a) of
16 this Section regardless of whether the deaths occurred
17 as the result of the same act or of several related or
18 unrelated acts so long as the deaths were the result of
19 either an intent to kill more than one person or of
20 separate acts which the defendant knew would cause death
21 or create a strong probability of death or great bodily
22 harm to the murdered individual or another; or
23 (4) the murdered individual was killed as a result
24 of the hijacking of an airplane, train, ship, bus or
25 other public conveyance; or
26 (5) the defendant committed the murder pursuant to
27 a contract, agreement or understanding by which he was to
28 receive money or anything of value in return for
29 committing the murder or procured another to commit the
30 murder for money or anything of value; or
31 (6) the murdered individual was killed in the
32 course of another felony if:
33 (a) the murdered individual:
34 (i) was actually killed by the defendant,
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1 or
2 (ii) received physical injuries
3 personally inflicted by the defendant
4 substantially contemporaneously with physical
5 injuries caused by one or more persons for
6 whose conduct the defendant is legally
7 accountable under Section 5-2 of this Code, and
8 the physical injuries inflicted by either the
9 defendant or the other person or persons for
10 whose conduct he is legally accountable caused
11 the death of the murdered individual; and
12 (b) in performing the acts which caused the
13 death of the murdered individual or which resulted
14 in physical injuries personally inflicted by the
15 defendant on the murdered individual under the
16 circumstances of subdivision (ii) of subparagraph
17 (a) of paragraph (6) of subsection (b) of this
18 Section, the defendant acted with the intent to kill
19 the murdered individual or with the knowledge that
20 his acts created a strong probability of death or
21 great bodily harm to the murdered individual or
22 another; and
23 (c) the other felony was one of the following:
24 armed robbery, armed violence, robbery, predatory
25 criminal sexual assault of a child, aggravated
26 criminal sexual assault, aggravated kidnapping,
27 aggravated vehicular hijacking, forcible detention,
28 arson, aggravated arson, aggravated stalking,
29 burglary, residential burglary, home invasion,
30 calculated criminal drug conspiracy as defined in
31 Section 405 of the Illinois Controlled Substances
32 Act, streetgang criminal drug conspiracy as defined
33 in Section 405.2 of the Illinois Controlled
34 Substances Act, or the attempt to commit any of the
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1 felonies listed in this subsection (c); or
2 (7) the murdered individual was under 12 years of
3 age and the death resulted from exceptionally brutal or
4 heinous behavior indicative of wanton cruelty; or
5 (8) the defendant committed the murder with intent
6 to prevent the murdered individual from testifying in any
7 criminal prosecution or giving material assistance to the
8 State in any investigation or prosecution, either against
9 the defendant or another; or the defendant committed the
10 murder because the murdered individual was a witness in
11 any prosecution or gave material assistance to the State
12 in any investigation or prosecution, either against the
13 defendant or another; or
14 (9) the defendant, while committing an offense
15 punishable under Sections 401, 401.1, 401.2, 405, 405.2,
16 407 or 407.1 or subsection (b) of Section 404 of the
17 Illinois Controlled Substances Act, or while engaged in a
18 conspiracy or solicitation to commit such offense,
19 intentionally killed an individual or counseled,
20 commanded, induced, procured or caused the intentional
21 killing of the murdered individual; or
22 (10) the defendant was incarcerated in an
23 institution or facility of the Department of Corrections
24 at the time of the murder, and while committing an
25 offense punishable as a felony under Illinois law, or
26 while engaged in a conspiracy or solicitation to commit
27 such offense, intentionally killed an individual or
28 counseled, commanded, induced, procured or caused the
29 intentional killing of the murdered individual; or
30 (11) the murder was committed in a cold, calculated
31 and premeditated manner pursuant to a preconceived plan,
32 scheme or design to take a human life by unlawful means,
33 and the conduct of the defendant created a reasonable
34 expectation that the death of a human being would result
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1 therefrom; or
2 (12) the murdered individual was an emergency
3 medical technician - ambulance, emergency medical
4 technician - intermediate, emergency medical technician -
5 paramedic, ambulance driver, or other medical assistance
6 or first aid personnel, employed by a municipality or
7 other governmental unit, killed in the course of
8 performing his official duties, to prevent the
9 performance of his official duties, or in retaliation for
10 performing his official duties, and the defendant knew or
11 should have known that the murdered individual was an
12 emergency medical technician - ambulance, emergency
13 medical technician - intermediate, emergency medical
14 technician - paramedic, ambulance driver, or other
15 medical assistance or first aid personnel; or
16 (13) the defendant was a principal administrator,
17 organizer, or leader of a calculated criminal drug
18 conspiracy consisting of a hierarchical position of
19 authority superior to that of all other members of the
20 conspiracy, and the defendant counseled, commanded,
21 induced, procured, or caused the intentional killing of
22 the murdered person; or
23 (14) the murder was intentional and involved the
24 infliction of torture. For the purpose of this Section
25 torture means the infliction of or subjection to extreme
26 physical pain, motivated by an intent to increase or
27 prolong the pain, suffering or agony of the victim; or
28 (15) the murder was committed as a result of the
29 intentional discharge of a firearm by the defendant from
30 a motor vehicle and the victim was not present within the
31 motor vehicle; or
32 (16) the murdered individual was 60 years of age or
33 older and the death resulted from exceptionally brutal or
34 heinous behavior indicative of wanton cruelty; or
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1 (17) the murdered individual was a disabled person
2 and the defendant knew or should have known that the
3 murdered individual was disabled. For purposes of this
4 paragraph (17), "disabled person" means a person who
5 suffers from a permanent physical or mental impairment
6 resulting from disease, an injury, a functional disorder,
7 or a congenital condition that renders the person
8 incapable of adequately providing for his or her own
9 health or personal care; or .
10 (18) the murder was committed as a result of
11 streetgang related criminal activity with the intent:
12 (A) to increase the gang's size, membership,
13 prestige, dominance, or control in any geographical
14 area, or
15 (B) to exact revenge or retribution for any
16 gang or member of the gang, or
17 (C) to obstruct justice or intimidate or
18 eliminate any witness against the gang or any member
19 of the gang, or
20 (D) to directly or indirectly cause any
21 benefit, aggrandizement, gain, profit, or other
22 advantage to or for the gang, its reputation,
23 influence, or membership.
24 For the purpose of this Section, "streetgang" or "gang"
25 has the meaning ascribed to it by Section 10 of the Illinois
26 Streetgang Terrorism Omnibus Prevention Act.
27 (c) Consideration of factors in Aggravation and
28 Mitigation.
29 The court shall consider, or shall instruct the jury to
30 consider any aggravating and any mitigating factors which are
31 relevant to the imposition of the death penalty. Aggravating
32 factors may include but need not be limited to those factors
33 set forth in subsection (b). Mitigating factors may include
34 but need not be limited to the following:
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1 (1) the defendant has no significant history of
2 prior criminal activity;
3 (2) the murder was committed while the defendant
4 was under the influence of extreme mental or emotional
5 disturbance, although not such as to constitute a defense
6 to prosecution;
7 (3) the murdered individual was a participant in
8 the defendant's homicidal conduct or consented to the
9 homicidal act;
10 (4) the defendant acted under the compulsion of
11 threat or menace of the imminent infliction of death or
12 great bodily harm;
13 (5) the defendant was not personally present during
14 commission of the act or acts causing death.
15 (d) Separate sentencing hearing.
16 Where requested by the State, the court shall conduct a
17 separate sentencing proceeding to determine the existence of
18 factors set forth in subsection (b) and to consider any
19 aggravating or mitigating factors as indicated in subsection
20 (c). The proceeding shall be conducted:
21 (1) before the jury that determined the defendant's
22 guilt; or
23 (2) before a jury impanelled for the purpose of the
24 proceeding if:
25 A. the defendant was convicted upon a plea of
26 guilty; or
27 B. the defendant was convicted after a trial
28 before the court sitting without a jury; or
29 C. the court for good cause shown discharges
30 the jury that determined the defendant's guilt; or
31 (3) before the court alone if the defendant waives
32 a jury for the separate proceeding.
33 (e) Evidence and Argument.
34 During the proceeding any information relevant to any of
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1 the factors set forth in subsection (b) may be presented by
2 either the State or the defendant under the rules governing
3 the admission of evidence at criminal trials. Any
4 information relevant to any additional aggravating factors or
5 any mitigating factors indicated in subsection (c) may be
6 presented by the State or defendant regardless of its
7 admissibility under the rules governing the admission of
8 evidence at criminal trials. The State and the defendant
9 shall be given fair opportunity to rebut any information
10 received at the hearing.
11 (f) Proof.
12 The burden of proof of establishing the existence of any
13 of the factors set forth in subsection (b) is on the State
14 and shall not be satisfied unless established beyond a
15 reasonable doubt.
16 (g) Procedure - Jury.
17 If at the separate sentencing proceeding the jury finds
18 that none of the factors set forth in subsection (b) exists,
19 the court shall sentence the defendant to a term of
20 imprisonment under Chapter V of the Unified Code of
21 Corrections. If there is a unanimous finding by the jury
22 that one or more of the factors set forth in subsection (b)
23 exist, the jury shall consider aggravating and mitigating
24 factors as instructed by the court and shall determine
25 whether the sentence of death shall be imposed. If the jury
26 determines unanimously that there are no mitigating factors
27 sufficient to preclude the imposition of the death sentence,
28 the court shall sentence the defendant to death.
29 Unless the jury unanimously finds that there are no
30 mitigating factors sufficient to preclude the imposition of
31 the death sentence the court shall sentence the defendant to
32 a term of imprisonment under Chapter V of the Unified Code of
33 Corrections.
34 (h) Procedure - No Jury.
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1 In a proceeding before the court alone, if the court
2 finds that none of the factors found in subsection (b)
3 exists, the court shall sentence the defendant to a term of
4 imprisonment under Chapter V of the Unified Code of
5 Corrections.
6 If the Court determines that one or more of the factors
7 set forth in subsection (b) exists, the Court shall consider
8 any aggravating and mitigating factors as indicated in
9 subsection (c). If the Court determines that there are no
10 mitigating factors sufficient to preclude the imposition of
11 the death sentence, the Court shall sentence the defendant to
12 death.
13 Unless the court finds that there are no mitigating
14 factors sufficient to preclude the imposition of the sentence
15 of death, the court shall sentence the defendant to a term of
16 imprisonment under Chapter V of the Unified Code of
17 Corrections.
18 (i) Appellate Procedure.
19 The conviction and sentence of death shall be subject to
20 automatic review by the Supreme Court. Such review shall be
21 in accordance with rules promulgated by the Supreme Court.
22 (j) Disposition of reversed death sentence.
23 In the event that the death penalty in this Act is held
24 to be unconstitutional by the Supreme Court of the United
25 States or of the State of Illinois, any person convicted of
26 first degree murder shall be sentenced by the court to a term
27 of imprisonment under Chapter V of the Unified Code of
28 Corrections.
29 In the event that any death sentence pursuant to the
30 sentencing provisions of this Section is declared
31 unconstitutional by the Supreme Court of the United States or
32 of the State of Illinois, the court having jurisdiction over
33 a person previously sentenced to death shall cause the
34 defendant to be brought before the court, and the court shall
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1 sentence the defendant to a term of imprisonment under
2 Chapter V of the Unified Code of Corrections.
3 (Source: P.A. 89-235, eff. 8-4-95; 89-428, eff. 12-13-95;
4 89-462, eff. 5-29-96; 89-498, eff. 6-27-96; 90-213, eff.
5 1-1-98.)
6 Section 10. The Unified Code of Corrections is amended
7 by changing Sections 3-6-3, 5-4-1, and 5-8-1 as follows:
8 (730 ILCS 5/3-6-3) (from Ch. 38, par. 1003-6-3)
9 Sec. 3-6-3. Rules and Regulations for Early Release.
10 (a)(1) The Department of Corrections shall prescribe
11 rules and regulations for the early release on account of
12 good conduct of persons committed to the Department which
13 shall be subject to review by the Prisoner Review Board.
14 (2) The rules and regulations on early release
15 shall provide, with respect to offenses enumerated in
16 subdivisions (a) (2), (i), ii, and (iii) committed on or
17 after the effective date of this amendatory Act of 1995
18 and with respect to offenses enumerated in subdivision
19 (a) (2) (iv) committed on or after the effective date of
20 this amendatory Act of 1998, the following:
21 (i) that a prisoner who is serving a term of
22 imprisonment for first degree murder shall receive
23 no good conduct credit and shall serve the entire
24 sentence imposed by the court;
25 (ii) that a prisoner serving a sentence for
26 attempt to commit first degree murder, solicitation
27 of murder, solicitation of murder for hire,
28 intentional homicide of an unborn child, predatory
29 criminal sexual assault of a child, aggravated
30 criminal sexual assault, criminal sexual assault,
31 aggravated kidnapping, aggravated battery with a
32 firearm, heinous battery, aggravated battery of a
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1 senior citizen, or aggravated battery of a child
2 shall receive no more than 4.5 days of good conduct
3 credit for each month of his or her sentence of
4 imprisonment; and
5 (iii) that a prisoner serving a sentence for
6 home invasion, armed robbery, aggravated vehicular
7 hijacking, aggravated discharge of a firearm, or
8 armed violence with a category I weapon or category
9 II weapon, when the court has made and entered a
10 finding, pursuant to subsection (c-1) of Section
11 5-4-1 of this Code, that the conduct leading to
12 conviction for the enumerated offense resulted in
13 great bodily harm to a victim, shall receive no more
14 than 4.5 days of good conduct credit for each month
15 of his or her sentence of imprisonment; and .
16 (iv) that a prisoner serving a sentence for a
17 forcible felony when the court has made and entered
18 a finding under subdivision (c-1)(2) of Section
19 5-4-1 of this Code that the conduct leading to the
20 conviction of the forcible felony was streetgang
21 related criminal activity shall receive no more than
22 4.5 days of good conduct credit for each month of
23 his or her sentence of imprisonment.
24 For purposes of this Section, "streetgang" has the
25 meaning ascribed to it in Section 10 of the Illinois
26 Streetgang Terrorism Omnibus Prevention Act.
27 (2.1) For all offenses, other than those enumerated
28 in subdivision (a)(2) committed on or after the effective
29 date of this amendatory Act of 1995, the rules and
30 regulations shall provide that a prisoner who is serving
31 a term of imprisonment shall receive one day of good
32 conduct credit for each day of his or her sentence of
33 imprisonment or recommitment under Section 3-3-9. Each
34 day of good conduct credit shall reduce by one day the
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1 prisoner's period of imprisonment or recommitment under
2 Section 3-3-9.
3 (2.2) A prisoner serving a term of natural life
4 imprisonment or a prisoner who has been sentenced to
5 death shall receive no good conduct credit.
6 (3) The rules and regulations shall also provide
7 that the Director may award up to 180 days additional
8 good conduct credit for meritorious service in specific
9 instances as the Director deems proper; except that no
10 more than 90 days of good conduct credit for meritorious
11 service shall be awarded to any prisoner who is serving a
12 sentence for conviction of first degree murder, reckless
13 homicide while under the influence of alcohol or any
14 other drug, aggravated kidnapping, kidnapping, predatory
15 criminal sexual assault of a child, aggravated criminal
16 sexual assault, criminal sexual assault, deviate sexual
17 assault, aggravated criminal sexual abuse, aggravated
18 indecent liberties with a child, indecent liberties with
19 a child, child pornography, heinous battery, aggravated
20 battery of a spouse, aggravated battery of a spouse with
21 a firearm, stalking, aggravated stalking, aggravated
22 battery of a child, endangering the life or health of a
23 child, cruelty to a child, or narcotic racketeering.
24 Notwithstanding the foregoing, good conduct credit for
25 meritorious service shall not be awarded on a sentence of
26 imprisonment imposed for conviction of one of the
27 offenses enumerated in subdivision (a)(2) when the
28 offense is committed on or after the effective date of
29 this amendatory Act of 1995.
30 (4) The rules and regulations shall also provide
31 that the good conduct credit accumulated and retained
32 under paragraph (2.1) of subsection (a) of this Section
33 by any inmate during specific periods of time in which
34 such inmate is engaged full-time in substance abuse
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1 programs, correctional industry assignments, or
2 educational programs provided by the Department under
3 this paragraph (4) and satisfactorily completes the
4 assigned program as determined by the standards of the
5 Department, shall be multiplied by a factor of 1.25 for
6 program participation before the effective date of this
7 amendatory Act of 1993 and 1.50 for program participation
8 on or after that date. However, no inmate shall be
9 eligible for the additional good conduct credit under
10 this paragraph (4) while assigned to a boot camp, mental
11 health unit, or electronic detention, or if convicted of
12 an offense enumerated in paragraph (a)(2) of this Section
13 that is committed on or after the effective date of this
14 amendatory Act of 1995, or first degree murder, a Class X
15 felony, criminal sexual assault, felony criminal sexual
16 abuse, aggravated criminal sexual abuse, aggravated
17 battery with a firearm, or any predecessor or successor
18 offenses with the same or substantially the same
19 elements, or any inchoate offenses relating to the
20 foregoing offenses. No inmate shall be eligible for the
21 additional good conduct credit under this paragraph (4)
22 who (i) has previously received increased good conduct
23 credit under this paragraph (4) and has subsequently been
24 convicted of a felony, or (ii) has previously served more
25 than one prior sentence of imprisonment for a felony in
26 an adult correctional facility.
27 Educational, vocational, substance abuse and
28 correctional industry programs under which good conduct
29 credit may be increased under this paragraph (4) shall be
30 evaluated by the Department on the basis of documented
31 standards. The Department shall report the results of
32 these evaluations to the Governor and the General
33 Assembly by September 30th of each year. The reports
34 shall include data relating to the recidivism rate among
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1 program participants.
2 Availability of these programs shall be subject to
3 the limits of fiscal resources appropriated by the
4 General Assembly for these purposes. Eligible inmates
5 who are denied immediate admission shall be placed on a
6 waiting list under criteria established by the
7 Department. The inability of any inmate to become engaged
8 in any such programs by reason of insufficient program
9 resources or for any other reason established under the
10 rules and regulations of the Department shall not be
11 deemed a cause of action under which the Department or
12 any employee or agent of the Department shall be liable
13 for damages to the inmate.
14 (5) Whenever the Department is to release any
15 inmate earlier than it otherwise would because of a grant
16 of good conduct credit for meritorious service given at
17 any time during the term, the Department shall give
18 reasonable advance notice of the impending release to the
19 State's Attorney of the county where the prosecution of
20 the inmate took place.
21 (b) Whenever a person is or has been committed under
22 several convictions, with separate sentences, the sentences
23 shall be construed under Section 5-8-4 in granting and
24 forfeiting of good time.
25 (c) The Department shall prescribe rules and regulations
26 for revoking good conduct credit, or suspending or reducing
27 the rate of accumulation of good conduct credit for specific
28 rule violations, during imprisonment. These rules and
29 regulations shall provide that no inmate may be penalized
30 more than one year of good conduct credit for any one
31 infraction.
32 When the Department seeks to revoke, suspend or reduce
33 the rate of accumulation of any good conduct credits for an
34 alleged infraction of its rules, it shall bring charges
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1 therefor against the prisoner sought to be so deprived of
2 good conduct credits before the Prisoner Review Board as
3 provided in subparagraph (a)(4) of Section 3-3-2 of this
4 Code, if the amount of credit at issue exceeds 30 days or
5 when during any 12 month period, the cumulative amount of
6 credit revoked exceeds 30 days except where the infraction is
7 committed or discovered within 60 days of scheduled release.
8 In those cases, the Department of Corrections may revoke up
9 to 30 days of good conduct credit. The Board may subsequently
10 approve the revocation of additional good conduct credit, if
11 the Department seeks to revoke good conduct credit in excess
12 of 30 days. However, the Board shall not be empowered to
13 review the Department's decision with respect to the loss of
14 30 days of good conduct credit within any calendar year for
15 any prisoner or to increase any penalty beyond the length
16 requested by the Department.
17 The Director of the Department of Corrections, in
18 appropriate cases, may restore up to 30 days good conduct
19 credits which have been revoked, suspended or reduced. Any
20 restoration of good conduct credits in excess of 30 days
21 shall be subject to review by the Prisoner Review Board.
22 However, the Board may not restore good conduct credit in
23 excess of the amount requested by the Director.
24 Nothing contained in this Section shall prohibit the
25 Prisoner Review Board from ordering, pursuant to Section
26 3-3-9(a)(3)(i)(B), that a prisoner serve up to one year of
27 the sentence imposed by the court that was not served due to
28 the accumulation of good conduct credit.
29 (d) If a lawsuit is filed by a prisoner in an Illinois
30 or federal court against the State, the Department of
31 Corrections, or the Prisoner Review Board, or against any of
32 their officers or employees, and the court makes a specific
33 finding that a pleading, motion, or other paper filed by the
34 prisoner is frivolous, the Department of Corrections shall
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1 conduct a hearing to revoke up to 180 days of good conduct
2 credit by bringing charges against the prisoner sought to be
3 deprived of the good conduct credits before the Prisoner
4 Review Board as provided in subparagraph (a)(8) of Section
5 3-3-2 of this Code. If the prisoner has not accumulated 180
6 days of good conduct credit at the time of the finding, then
7 the Prisoner Review Board may revoke all good conduct credit
8 accumulated by the prisoner.
9 For purposes of this subsection (d):
10 (1) "Frivolous" means that a pleading, motion, or
11 other filing which purports to be a legal document filed
12 by a prisoner in his or her lawsuit meets any or all of
13 the following criteria:
14 (A) it lacks an arguable basis either in law
15 or in fact;
16 (B) it is being presented for any improper
17 purpose, such as to harass or to cause unnecessary
18 delay or needless increase in the cost of
19 litigation;
20 (C) the claims, defenses, and other legal
21 contentions therein are not warranted by existing
22 law or by a nonfrivolous argument for the extension,
23 modification, or reversal of existing law or the
24 establishment of new law;
25 (D) the allegations and other factual
26 contentions do not have evidentiary support or, if
27 specifically so identified, are not likely to have
28 evidentiary support after a reasonable opportunity
29 for further investigation or discovery; or
30 (E) the denials of factual contentions are not
31 warranted on the evidence, or if specifically so
32 identified, are not reasonably based on a lack of
33 information or belief.
34 (2) "Lawsuit" means a petition for post conviction
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1 relief under Article 122 of the Code of Criminal
2 Procedure of 1963, a motion pursuant to Section 116-3 of
3 the Code of Criminal Procedure of 1963, a habeas corpus
4 action under Article X of the Code of Civil Procedure or
5 under federal law (28 U.S.C. 2254), a petition for claim
6 under the Court of Claims Act or an action under the
7 federal Civil Rights Act (42 U.S.C. 1983).
8 (Source: P.A. 89-404, eff. 8-20-95; 89-428, eff. 12-13-95;
9 89-462, eff. 5-29-96; 89-656, eff. 1-1-97; 90-141, eff.
10 1-1-98; 90-505, eff. 8-19-97; revised 10-7-97.)
11 (730 ILCS 5/5-4-1) (from Ch. 38, par. 1005-4-1)
12 Sec. 5-4-1. Sentencing Hearing.
13 (a) Except when the death penalty is sought under
14 hearing procedures otherwise specified, after a determination
15 of guilt, a hearing shall be held to impose the sentence.
16 However, prior to the imposition of sentence on an individual
17 being sentenced for an offense based upon a charge for a
18 violation of Section 11-501 of the Illinois Vehicle Code or a
19 similar provision of a local ordinance, the individual must
20 undergo a professional evaluation to determine if an alcohol
21 or other drug abuse problem exists and the extent of such a
22 problem. Programs conducting these evaluations shall be
23 licensed by the Department of Human Services. However, if
24 the individual is not a resident of Illinois, the court may,
25 in its discretion, accept an evaluation from a program in the
26 state of such individual's residence. The court may in its
27 sentencing order approve an eligible defendant for placement
28 in a Department of Corrections impact incarceration program
29 as provided in Section 5-8-1.1. At the hearing the court
30 shall:
31 (1) consider the evidence, if any, received upon
32 the trial;
33 (2) consider any presentence reports;
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1 (3) consider the financial impact of incarceration
2 based on the financial impact statement filed with the
3 clerk of the court by the Department of Corrections;
4 (4) consider evidence and information offered by
5 the parties in aggravation and mitigation;
6 (5) hear arguments as to sentencing alternatives;
7 (6) afford the defendant the opportunity to make a
8 statement in his own behalf;
9 (7) afford the victim of a violent crime or a
10 violation of Section 11-501 of the Illinois Vehicle Code,
11 or a similar provision of a local ordinance, committed by
12 the defendant the opportunity to make a statement
13 concerning the impact on the victim and to offer evidence
14 in aggravation or mitigation; provided that the statement
15 and evidence offered in aggravation or mitigation must
16 first be prepared in writing in conjunction with the
17 State's Attorney before it may be presented orally at the
18 hearing. Any sworn testimony offered by the victim is
19 subject to the defendant's right to cross-examine. All
20 statements and evidence offered under this paragraph (7)
21 shall become part of the record of the court; and
22 (8) in cases of reckless homicide afford the
23 victim's spouse, guardians, parents or other immediate
24 family members an opportunity to make oral statements.
25 (b) All sentences shall be imposed by the judge based
26 upon his independent assessment of the elements specified
27 above and any agreement as to sentence reached by the
28 parties. The judge who presided at the trial or the judge
29 who accepted the plea of guilty shall impose the sentence
30 unless he is no longer sitting as a judge in that court.
31 Where the judge does not impose sentence at the same time on
32 all defendants who are convicted as a result of being
33 involved in the same offense, the defendant or the State's
34 attorney may advise the sentencing court of the disposition
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1 of any other defendants who have been sentenced.
2 (c) In imposing a sentence for a violent crime or for an
3 offense of operating or being in physical control of a
4 vehicle while under the influence of alcohol, any other drug
5 or any combination thereof, or a similar provision of a local
6 ordinance, when such offense resulted in the personal injury
7 to someone other than the defendant, the trial judge shall
8 specify on the record the particular evidence, information,
9 factors in mitigation and aggravation or other reasons that
10 led to his sentencing determination. The full verbatim record
11 of the sentencing hearing shall be filed with the clerk of
12 the court and shall be a public record.
13 (c-1) 1. In imposing a sentence for the offense of
14 aggravated kidnapping for ransom, home invasion, armed
15 robbery, aggravated vehicular hijacking, aggravated
16 discharge of a firearm, or armed violence with a category
17 I weapon or category II weapon, the trial judge shall
18 make a finding as to whether the conduct leading to
19 conviction for the offense resulted in great bodily harm
20 to a victim, and shall enter that finding and the basis
21 for that finding in the record.
22 2. In imposing a sentence for a forcible felony,
23 the trial judge shall make a finding as to whether the
24 conduct leading to the conviction of the forcible felony
25 was streetgang related criminal activity with the intent
26 (i) to increase the gang's size, membership, prestige,
27 dominance, or control in any geographical area, or (ii)
28 to exact revenge or retribution for any gang or member of
29 the gang, or (iii) to obstruct justice or intimidate or
30 eliminate any witness against the gang or member of the
31 gang, or (iv) to directly or indirectly cause any
32 benefit, aggrandizement, gain, profit or other advantage
33 to or for the gang, its reputation, influence or
34 membership.
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1 For the purpose of this Section, "streetgang" or "gang"
2 has the meaning ascribed to it in Section 10 of the Illinois
3 Streetgang Terrorism Omnibus Prevention Act.
4 (c-2) If the defendant is sentenced to prison, other
5 than when a sentence of natural life imprisonment or a
6 sentence of death is imposed, at the time the sentence is
7 imposed the judge shall state on the record in open court the
8 approximate period of time the defendant will serve in
9 custody according to the then current statutory rules and
10 regulations for early release found in Section 3-6-3 and
11 other related provisions of this Code. This statement is
12 intended solely to inform the public, has no legal effect on
13 the defendant's actual release, and may not be relied on by
14 the defendant on appeal.
15 The judge's statement, to be given after pronouncing the
16 sentence, other than when the sentence is imposed for one of
17 the offenses enumerated in paragraph (a)(3) of Section 3-6-3,
18 shall include the following:
19 "The purpose of this statement is to inform the public of
20 the actual period of time this defendant is likely to spend
21 in prison as a result of this sentence. The actual period of
22 prison time served is determined by the statutes of Illinois
23 as applied to this sentence by the Illinois Department of
24 Corrections and the Illinois Prisoner Review Board. In this
25 case, assuming the defendant receives all of his or her good
26 conduct credit, the period of estimated actual custody is ...
27 years and ... months, less up to 180 days additional good
28 conduct credit for meritorious service. If the defendant,
29 because of his or her own misconduct or failure to comply
30 with the institutional regulations, does not receive those
31 credits, the actual time served in prison will be longer.
32 The defendant may also receive an additional one-half day
33 good conduct credit for each day of participation in
34 vocational, industry, substance abuse, and educational
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1 programs as provided for by Illinois statute."
2 When the sentence is imposed for one of the offenses
3 enumerated in paragraph (a)(3) of Section 3-6-3, other than
4 when the sentence is imposed for one of the offenses
5 enumerated in paragraph (a)(2) of Section 3-6-3 committed on
6 or after the effective date of this amendatory Act of 1995,
7 the judge's statement, to be given after pronouncing the
8 sentence, shall include the following:
9 "The purpose of this statement is to inform the public of
10 the actual period of time this defendant is likely to spend
11 in prison as a result of this sentence. The actual period of
12 prison time served is determined by the statutes of Illinois
13 as applied to this sentence by the Illinois Department of
14 Corrections and the Illinois Prisoner Review Board. In this
15 case, assuming the defendant receives all of his or her good
16 conduct credit, the period of estimated actual custody is ...
17 years and ... months, less up to 90 days additional good
18 conduct credit for meritorious service. If the defendant,
19 because of his or her own misconduct or failure to comply
20 with the institutional regulations, does not receive those
21 credits, the actual time served in prison will be longer.
22 The defendant may also receive an additional one-half day
23 good conduct credit for each day of participation in
24 vocational, industry, substance abuse, and educational
25 programs as provided for by Illinois statute."
26 When the sentence is imposed for one of the offenses
27 enumerated in paragraph (a)(2) of Section 3-6-3, other than
28 first degree murder, and the offense was committed on or
29 after the effective date of this amendatory Act of 1995, the
30 judge's statement, to be given after pronouncing the
31 sentence, shall include the following:
32 "The purpose of this statement is to inform the public of
33 the actual period of time this defendant is likely to spend
34 in prison as a result of this sentence. The actual period of
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1 prison time served is determined by the statutes of Illinois
2 as applied to this sentence by the Illinois Department of
3 Corrections and the Illinois Prisoner Review Board. In this
4 case, the defendant is entitled to no more than 4 1/2 days of
5 good conduct credit for each month of his or her sentence of
6 imprisonment. Therefore, this defendant will serve at least
7 85% of his or her sentence. Assuming the defendant receives
8 4 1/2 days credit for each month of his or her sentence, the
9 period of estimated actual custody is ... years and ...
10 months. If the defendant, because of his or her own
11 misconduct or failure to comply with the institutional
12 regulations receives lesser credit, the actual time served in
13 prison will be longer."
14 When a sentence of imprisonment is imposed for first
15 degree murder and the offense was committed on or after the
16 effective date of this amendatory Act of 1995, the judge's
17 statement, to be given after pronouncing the sentence, shall
18 include the following:
19 "The purpose of this statement is to inform the public of
20 the actual period of time this defendant is likely to spend
21 in prison as a result of this sentence. The actual period of
22 prison time served is determined by the statutes of Illinois
23 as applied to this sentence by the Illinois Department of
24 Corrections and the Illinois Prisoner Review Board. In this
25 case, the defendant is not entitled to good conduct credit.
26 Therefore, this defendant will serve 100% of his or her
27 sentence."
28 (d) When the defendant is committed to the Department of
29 Corrections, the State's Attorney shall and counsel for the
30 defendant may file a statement with the clerk of the court to
31 be transmitted to the department, agency or institution to
32 which the defendant is committed to furnish such department,
33 agency or institution with the facts and circumstances of the
34 offense for which the person was committed together with all
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1 other factual information accessible to them in regard to the
2 person prior to his commitment relative to his habits,
3 associates, disposition and reputation and any other facts
4 and circumstances which may aid such department, agency or
5 institution during its custody of such person. The clerk
6 shall within 10 days after receiving any such statements
7 transmit a copy to such department, agency or institution and
8 a copy to the other party, provided, however, that this shall
9 not be cause for delay in conveying the person to the
10 department, agency or institution to which he has been
11 committed.
12 (e) The clerk of the court shall transmit to the
13 department, agency or institution, if any, to which the
14 defendant is committed, the following:
15 (1) the sentence imposed;
16 (2) any statement by the court of the basis for
17 imposing the sentence;
18 (3) any presentence reports;
19 (4) the number of days, if any, which the defendant
20 has been in custody and for which he is entitled to
21 credit against the sentence, which information shall be
22 provided to the clerk by the sheriff;
23 (4.1) any finding of great bodily harm made by the
24 court with respect to an offense enumerated in subsection
25 (c-1);
26 (5) all statements filed under subsection (d) of
27 this Section;
28 (6) any medical or mental health records or
29 summaries of the defendant;
30 (7) the municipality where the arrest of the
31 offender or the commission of the offense has occurred,
32 where such municipality has a population of more than
33 25,000 persons;
34 (8) all statements made and evidence offered under
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1 paragraph (7) of subsection (a) of this Section; and
2 (9) all additional matters which the court directs
3 the clerk to transmit.
4 (Source: P.A. 89-404, eff. 8-20-95; 89-507, eff. 7-1-97.)
5 (730 ILCS 5/5-8-1) (from Ch. 38, par. 1005-8-1)
6 Sec. 5-8-1. Sentence of Imprisonment for Felony.
7 (a) Except as otherwise provided in the statute defining
8 the offense, a sentence of imprisonment for a felony shall be
9 a determinate sentence set by the court under this Section,
10 according to the following limitations:
11 (1) for first degree murder,
12 (a) a term shall be not less than 20 years and
13 not more than 60 years, or
14 (a-5) if the court finds that the conduct
15 leading to the murder was streetgang related
16 criminal activity with the intent (i) to increase
17 the gang's size, membership, prestige, dominance, or
18 control in any geographical area, or (ii) to exact
19 revenge or retribution for any gang or member of the
20 gang, or (iii) to obstruct justice or intimidate or
21 eliminate any witness against the gang or any member
22 of the gang, or (iv) to directly or indirectly cause
23 any benefit, aggrandizement, gain, profit or other
24 advantage to or for the gang, its reputation,
25 influence or membership, the court shall sentence
26 the defendant to a term of not less than 30 and not
27 more than 80 years.
28 For the purpose of this Section, "streetgang" or "gang"
29 has the meaning ascribed to it by Section 10 of the Illinois
30 Streetgang Terrorism Omnibus Prevention Act.
31 (b) if the court finds that the murder was
32 accompanied by exceptionally brutal or heinous
33 behavior indicative of wanton cruelty or, except as
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1 set forth in subsection (a)(1)(c) of this Section,
2 that any of the aggravating factors listed in
3 subsection (b) of Section 9-1 of the Criminal Code
4 of 1961 are present, the court may sentence the
5 defendant to a term of natural life imprisonment, or
6 (c) the court shall sentence the defendant to
7 a term of natural life imprisonment when the death
8 penalty is not imposed if the defendant,
9 (i) has previously been convicted of
10 first degree murder under any state or federal
11 law, or
12 (ii) is a person who, at the time of the
13 commission of the murder, had attained the age
14 of 17 or more and is found guilty of murdering
15 an individual under 12 years of age; or,
16 irrespective of the defendant's age at the time
17 of the commission of the offense, is found
18 guilty of murdering more than one victim, or
19 (iii) is found guilty of murdering a
20 peace officer or fireman when the peace officer
21 or fireman was killed in the course of
22 performing his official duties, or to prevent
23 the peace officer or fireman from performing
24 his official duties, or in retaliation for the
25 peace officer or fireman performing his
26 official duties, and the defendant knew or
27 should have known that the murdered individual
28 was a peace officer or fireman, or
29 (iv) is found guilty of murdering an
30 employee of an institution or facility of the
31 Department of Corrections, or any similar local
32 correctional agency, when the employee was
33 killed in the course of performing his official
34 duties, or to prevent the employee from
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1 performing his official duties, or in
2 retaliation for the employee performing his
3 official duties, or
4 (v) is found guilty of murdering an
5 emergency medical technician - ambulance,
6 emergency medical technician - intermediate,
7 emergency medical technician - paramedic,
8 ambulance driver or other medical assistance or
9 first aid person while employed by a
10 municipality or other governmental unit when
11 the person was killed in the course of
12 performing official duties or to prevent the
13 person from performing official duties or in
14 retaliation for performing official duties and
15 the defendant knew or should have known that
16 the murdered individual was an emergency
17 medical technician - ambulance, emergency
18 medical technician - intermediate, emergency
19 medical technician - paramedic, ambulance
20 driver, or other medical assistant or first aid
21 personnel, or
22 (vi) is a person who, at the time of the
23 commission of the murder, had not attained the
24 age of 17, and is found guilty of murdering a
25 person under 12 years of age and the murder is
26 committed during the course of aggravated
27 criminal sexual assault, criminal sexual
28 assault, or aggravated kidnaping.
29 For purposes of clause (v), "emergency medical
30 technician - ambulance", "emergency medical
31 technician - intermediate", "emergency medical
32 technician - paramedic", have the meanings ascribed
33 to them in the Emergency Medical Services (EMS)
34 Systems Act.
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1 (1.5) for second degree murder, a term shall be not
2 less than 4 years and not more than 20 years;
3 (2) for a person adjudged a habitual criminal under
4 Article 33B of the Criminal Code of 1961, as amended, the
5 sentence shall be a term of natural life imprisonment;
6 (2.5) for a person convicted under the
7 circumstances described in paragraph (3) of subsection
8 (b) of Section 12-13, paragraph (2) of subsection (d) of
9 Section 12-14, or paragraph (2) of subsection (b) of
10 Section 12-14.1 of the Criminal Code of 1961, the
11 sentence shall be a term of natural life imprisonment;
12 (3) except as otherwise provided in the statute
13 defining the offense, for a Class X felony, the sentence
14 shall be not less than 6 years and not more than 30
15 years;
16 (4) for a Class 1 felony, other than second degree
17 murder, the sentence shall be not less than 4 years and
18 not more than 15 years;
19 (5) for a Class 2 felony, the sentence shall be not
20 less than 3 years and not more than 7 years;
21 (6) for a Class 3 felony, the sentence shall be not
22 less than 2 years and not more than 5 years;
23 (7) for a Class 4 felony, the sentence shall be not
24 less than 1 year and not more than 3 years.
25 (b) The sentencing judge in each felony conviction shall
26 set forth his reasons for imposing the particular sentence he
27 enters in the case, as provided in Section 5-4-1 of this
28 Code. Those reasons may include any mitigating or
29 aggravating factors specified in this Code, or the lack of
30 any such circumstances, as well as any other such factors as
31 the judge shall set forth on the record that are consistent
32 with the purposes and principles of sentencing set out in
33 this Code.
34 (c) A motion to reduce a sentence may be made, or the
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1 court may reduce a sentence without motion, within 30 days
2 after the sentence is imposed. A defendant's challenge to
3 the correctness of a sentence or to any aspect of the
4 sentencing hearing shall be made by a written motion filed
5 within 30 days following the imposition of sentence.
6 However, the court may not increase a sentence once it is
7 imposed.
8 If a motion filed pursuant to this subsection is timely
9 filed within 30 days after the sentence is imposed, the
10 proponent of the motion shall exercise due diligence in
11 seeking a determination on the motion and the court shall
12 thereafter decide such motion within a reasonable time.
13 If a motion filed pursuant to this subsection is timely
14 filed within 30 days after the sentence is imposed, then for
15 purposes of perfecting an appeal, a final judgment shall not
16 be considered to have been entered until the motion to reduce
17 a sentence has been decided by order entered by the trial
18 court.
19 A motion filed pursuant to this subsection shall not be
20 considered to have been timely filed unless it is filed with
21 the circuit court clerk within 30 days after the sentence is
22 imposed together with a notice of motion, which notice of
23 motion shall set the motion on the court's calendar on a date
24 certain within a reasonable time after the date of filing.
25 (d) Except where a term of natural life is imposed,
26 every sentence shall include as though written therein a term
27 in addition to the term of imprisonment. For those sentenced
28 under the law in effect prior to February 1, 1978, such term
29 shall be identified as a parole term. For those sentenced on
30 or after February 1, 1978, such term shall be identified as a
31 mandatory supervised release term. Subject to earlier
32 termination under Section 3-3-8, the parole or mandatory
33 supervised release term shall be as follows:
34 (1) for first degree murder or a Class X felony, 3
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1 years;
2 (2) for a Class 1 felony or a Class 2 felony, 2
3 years;
4 (3) for a Class 3 felony or a Class 4 felony, 1
5 year.
6 (e) A defendant who has a previous and unexpired
7 sentence of imprisonment imposed by another state or by any
8 district court of the United States and who, after sentence
9 for a crime in Illinois, must return to serve the unexpired
10 prior sentence may have his sentence by the Illinois court
11 ordered to be concurrent with the prior sentence in the other
12 state. The court may order that any time served on the
13 unexpired portion of the sentence in the other state, prior
14 to his return to Illinois, shall be credited on his Illinois
15 sentence. The other state shall be furnished with a copy of
16 the order imposing sentence which shall provide that, when
17 the offender is released from confinement of the other state,
18 whether by parole or by termination of sentence, the offender
19 shall be transferred by the Sheriff of the committing county
20 to the Illinois Department of Corrections. The court shall
21 cause the Department of Corrections to be notified of such
22 sentence at the time of commitment and to be provided with
23 copies of all records regarding the sentence.
24 (f) A defendant who has a previous and unexpired
25 sentence of imprisonment imposed by an Illinois circuit court
26 for a crime in this State and who is subsequently sentenced
27 to a term of imprisonment by another state or by any district
28 court of the United States and who has served a term of
29 imprisonment imposed by the other state or district court of
30 the United States, and must return to serve the unexpired
31 prior sentence imposed by the Illinois Circuit Court may
32 apply to the court which imposed sentence to have his
33 sentence reduced.
34 The circuit court may order that any time served on the
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1 sentence imposed by the other state or district court of the
2 United States be credited on his Illinois sentence. Such
3 application for reduction of a sentence under this
4 subsection (f) shall be made within 30 days after the
5 defendant has completed the sentence imposed by the other
6 state or district court of the United States.
7 (Source: P.A. 89-203, eff. 7-21-95; 89-428, eff. 12-13-95;
8 89-462, eff. 5-29-96; 90-396, eff. 1-1-98.)