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91_HB2879
LRB9107331DJcd
1 AN ACT concerning hate crime, 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 12-7.1 as follows:
6 (720 ILCS 5/12-7.1) (from Ch. 38, par. 12-7.1)
7 Sec. 12-7.1. Hate crime.
8 (a) A person commits hate crime when, based in whole or
9 in part upon by reason of the actual or perceived race,
10 color, creed, religion, ancestry, gender, sexual orientation,
11 physical or mental disability, or national origin of another
12 individual or group of individuals, he commits assault,
13 battery, aggravated assault, misdemeanor theft, criminal
14 trespass to residence, misdemeanor criminal damage to
15 property, criminal trespass to vehicle, criminal trespass to
16 real property, mob action or disorderly conduct as these
17 crimes are defined in Sections 12-1, 12-2, 12-3, 16-1, 19-4,
18 21-1, 21-2, 21-3, 25-1, and 26-1 of this Code, respectively,
19 or harassment by telephone as defined in Section 1-1 of the
20 Harassing and Obscene Communications Act against a victim who
21 is: (i) the other individual; (ii) a member of the group of
22 individuals; (iii) a person who has an association with, is
23 married to, or has a friendship with the other individual or
24 a member of the group of individuals; or (iv) a relative (by
25 blood or marriage) of a person described in clause (i), (ii),
26 or (iii).
27 (b) Hate crime is a Class 4 felony for a first offense
28 and a Class 2 felony for a second or subsequent offense. Any
29 order of probation or conditional discharge entered following
30 a conviction for an offense under this Section shall include,
31 a condition that the offender perform public or community
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1 service of no less than 200 hours if that service is
2 established in the county where the offender was convicted of
3 hate crime. In addition the court may impose any other
4 condition of probation or conditional discharge under this
5 Section.
6 (c) Independent of any criminal prosecution or the
7 result thereof, any person suffering injury to his person or
8 damage to his property as a result of hate crime may bring a
9 civil action for damages, injunction or other appropriate
10 relief. The court may award actual damages, including damages
11 for emotional distress, or punitive damages. A judgment may
12 include attorney's fees and costs. The parents or legal
13 guardians, other than guardians appointed pursuant to the
14 Juvenile Court Act or the Juvenile Court Act of 1987, of an
15 unemancipated minor shall be liable for the amount of any
16 judgment for actual damages rendered against such minor under
17 this subsection (c) in any amount not exceeding the amount
18 provided under Section 5 of the Parental Responsibility Law.
19 (d) "Sexual orientation" means heterosexuality,
20 homosexuality, or bisexuality.
21 (Source: P.A. 89-689, eff. 12-31-96; 90-578, eff. 6-1-98.)
22 Section 10. The Unified Code of Corrections is amended
23 by changing Section 5-5-3 as follows:
24 (730 ILCS 5/5-5-3) (from Ch. 38, par. 1005-5-3)
25 Sec. 5-5-3. Disposition.
26 (a) Every person convicted of an offense shall be
27 sentenced as provided in this Section.
28 (b) The following options shall be appropriate
29 dispositions, alone or in combination, for all felonies and
30 misdemeanors other than those identified in subsection (c) of
31 this Section:
32 (1) A period of probation.
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1 (2) A term of periodic imprisonment.
2 (3) A term of conditional discharge.
3 (4) A term of imprisonment.
4 (5) An order directing the offender to clean up and
5 repair the damage, if the offender was convicted under
6 paragraph (h) of Section 21-1 of the Criminal Code of
7 1961.
8 (6) A fine.
9 (7) An order directing the offender to make
10 restitution to the victim under Section 5-5-6 of this
11 Code.
12 (8) A sentence of participation in a county impact
13 incarceration program under Section 5-8-1.2 of this Code.
14 Whenever an individual is sentenced for an offense based
15 upon an arrest for a violation of Section 11-501 of the
16 Illinois Vehicle Code, or a similar provision of a local
17 ordinance, and the professional evaluation recommends
18 remedial or rehabilitative treatment or education, neither
19 the treatment nor the education shall be the sole disposition
20 and either or both may be imposed only in conjunction with
21 another disposition. The court shall monitor compliance with
22 any remedial education or treatment recommendations contained
23 in the professional evaluation. Programs conducting alcohol
24 or other drug evaluation or remedial education must be
25 licensed by the Department of Human Services. However, if
26 the individual is not a resident of Illinois, the court may
27 accept an alcohol or other drug evaluation or remedial
28 education program in the state of such individual's
29 residence. Programs providing treatment must be licensed
30 under existing applicable alcoholism and drug treatment
31 licensure standards.
32 In addition to any other fine or penalty required by law,
33 any individual convicted of a violation of Section 11-501 of
34 the Illinois Vehicle Code or a similar provision of local
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1 ordinance, whose operation of a motor vehicle while in
2 violation of Section 11-501 or such ordinance proximately
3 caused an incident resulting in an appropriate emergency
4 response, shall be required to make restitution to a public
5 agency for the costs of that emergency response. Such
6 restitution shall not exceed $500 per public agency for each
7 such emergency response. For the purpose of this paragraph,
8 emergency response shall mean any incident requiring a
9 response by: a police officer as defined under Section 1-162
10 of the Illinois Vehicle Code; a fireman carried on the rolls
11 of a regularly constituted fire department; and an ambulance
12 as defined under Section 4.05 of the Emergency Medical
13 Services (EMS) Systems Act.
14 Neither a fine nor restitution shall be the sole
15 disposition for a felony and either or both may be imposed
16 only in conjunction with another disposition.
17 (c) (1) When a defendant is found guilty of first degree
18 murder the State may either seek a sentence of
19 imprisonment under Section 5-8-1 of this Code, or where
20 appropriate seek a sentence of death under Section 9-1 of
21 the Criminal Code of 1961.
22 (2) A period of probation, a term of periodic
23 imprisonment or conditional discharge shall not be
24 imposed for the following offenses. The court shall
25 sentence the offender to not less than the minimum term
26 of imprisonment set forth in this Code for the following
27 offenses, and may order a fine or restitution or both in
28 conjunction with such term of imprisonment:
29 (A) First degree murder where the death
30 penalty is not imposed.
31 (B) Attempted first degree murder.
32 (C) A Class X felony.
33 (D) A violation of Section 401.1 or 407 of the
34 Illinois Controlled Substances Act, or a violation
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1 of subdivision (c)(2) of Section 401 of that Act
2 which relates to more than 5 grams of a substance
3 containing cocaine or an analog thereof.
4 (E) A violation of Section 5.1 or 9 of the
5 Cannabis Control Act.
6 (F) A Class 2 or greater felony if the
7 offender had been convicted of a Class 2 or greater
8 felony within 10 years of the date on which he
9 committed the offense for which he is being
10 sentenced.
11 (G) Residential burglary.
12 (H) Criminal sexual assault, except as
13 otherwise provided in subsection (e) of this
14 Section.
15 (I) Aggravated battery of a senior citizen.
16 (J) A forcible felony if the offense was
17 related to the activities of an organized gang.
18 Before July 1, 1994, for the purposes of this
19 paragraph, "organized gang" means an association of
20 5 or more persons, with an established hierarchy,
21 that encourages members of the association to
22 perpetrate crimes or provides support to the members
23 of the association who do commit crimes.
24 Beginning July 1, 1994, for the purposes of
25 this paragraph, "organized gang" has the meaning
26 ascribed to it in Section 10 of the Illinois
27 Streetgang Terrorism Omnibus Prevention Act.
28 (K) Vehicular hijacking.
29 (L) A second or subsequent conviction for the
30 offense of Hate crime when the underlying offense
31 upon which the hate crime is based is felony
32 aggravated assault or felony mob action.
33 (M) A second or subsequent conviction for the
34 offense of institutional vandalism if the damage to
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1 the property exceeds $300.
2 (N) A Class 3 felony violation of paragraph
3 (1) of subsection (a) of Section 2 of the Firearm
4 Owners Identification Card Act.
5 (O) A violation of Section 12-6.1 of the
6 Criminal Code of 1961.
7 (P) A violation of paragraph (1), (2), (3),
8 (4), (5), or (7) of subsection (a) of Section
9 11-20.1 of the Criminal Code of 1961.
10 (Q) A violation of Section 20-1.2 of the
11 Criminal Code of 1961.
12 (R) (Q) A violation of Section 24-3A of the
13 Criminal Code of 1961.
14 (3) A minimum term of imprisonment of not less than
15 48 consecutive hours or 100 hours of community service as
16 may be determined by the court shall be imposed for a
17 second or subsequent violation committed within 5 years
18 of a previous violation of Section 11-501 of the Illinois
19 Vehicle Code or a similar provision of a local ordinance.
20 (4) A minimum term of imprisonment of not less than
21 7 consecutive days or 30 days of community service shall
22 be imposed for a violation of paragraph (c) of Section
23 6-303 of the Illinois Vehicle Code.
24 (4.1) A minimum term of 30 consecutive days of
25 imprisonment, 40 days of 24 hour periodic imprisonment or
26 720 hours of community service, as may be determined by
27 the court, shall be imposed for a violation of Section
28 11-501 of the Illinois Vehicle Code during a period in
29 which the defendant's driving privileges are revoked or
30 suspended, where the revocation or suspension was for a
31 violation of Section 11-501 or Section 11-501.1 of that
32 Code.
33 (5) The court may sentence an offender convicted of
34 a business offense or a petty offense or a corporation or
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1 unincorporated association convicted of any offense to:
2 (A) a period of conditional discharge;
3 (B) a fine;
4 (C) make restitution to the victim under
5 Section 5-5-6 of this Code.
6 (6) In no case shall an offender be eligible for a
7 disposition of probation or conditional discharge for a
8 Class 1 felony committed while he was serving a term of
9 probation or conditional discharge for a felony.
10 (7) When a defendant is adjudged a habitual
11 criminal under Article 33B of the Criminal Code of 1961,
12 the court shall sentence the defendant to a term of
13 natural life imprisonment.
14 (8) When a defendant, over the age of 21 years, is
15 convicted of a Class 1 or Class 2 felony, after having
16 twice been convicted of any Class 2 or greater Class
17 felonies in Illinois, and such charges are separately
18 brought and tried and arise out of different series of
19 acts, such defendant shall be sentenced as a Class X
20 offender. This paragraph shall not apply unless (1) the
21 first felony was committed after the effective date of
22 this amendatory Act of 1977; and (2) the second felony
23 was committed after conviction on the first; and (3) the
24 third felony was committed after conviction on the
25 second.
26 (9) A defendant convicted of a second or subsequent
27 offense of ritualized abuse of a child may be sentenced
28 to a term of natural life imprisonment.
29 (10) Beginning July 1, 1994, unless sentencing
30 under Section 33B-1 is applicable, a term of imprisonment
31 of not less than 15 years nor more than 50 years shall be
32 imposed on a defendant who violates Section 33A-2 of the
33 Criminal Code of 1961 with a firearm, when that person
34 has been convicted in any state or federal court of 3 or
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1 more of the following offenses: treason, first degree
2 murder, second degree murder, aggravated criminal sexual
3 assault, criminal sexual assault, robbery, burglary,
4 arson, kidnaping, aggravated battery resulting in great
5 bodily harm or permanent disability or disfigurement, or
6 a violation of Section 401(a) of the Illinois Controlled
7 Substances Act, when the third offense was committed
8 after conviction on the second, the second offense was
9 committed after conviction on the first, and the
10 violation of Section 33A-2 of the Criminal Code of 1961
11 was committed after conviction on the third.
12 (11) Beginning July 1, 1994, a term of imprisonment
13 of not less than 10 years and not more than 30 years
14 shall be imposed on a defendant who violates Section
15 33A-2 with a Category I weapon where the offense was
16 committed in any school, or any conveyance owned, leased,
17 or contracted by a school to transport students to or
18 from school or a school related activity, on the real
19 property comprising any school or public park, and where
20 the offense was related to the activities of an organized
21 gang. For the purposes of this paragraph (11),
22 "organized gang" has the meaning ascribed to it in
23 Section 10 of the Illinois Streetgang Terrorism Omnibus
24 Prevention Act.
25 (d) In any case in which a sentence originally imposed
26 is vacated, the case shall be remanded to the trial court.
27 The trial court shall hold a hearing under Section 5-4-1 of
28 the Unified Code of Corrections which may include evidence of
29 the defendant's life, moral character and occupation during
30 the time since the original sentence was passed. The trial
31 court shall then impose sentence upon the defendant. The
32 trial court may impose any sentence which could have been
33 imposed at the original trial subject to Section 5-5-4 of the
34 Unified Code of Corrections.
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1 (e) In cases where prosecution for criminal sexual
2 assault or aggravated criminal sexual abuse under Section
3 12-13 or 12-16 of the Criminal Code of 1961 results in
4 conviction of a defendant who was a family member of the
5 victim at the time of the commission of the offense, the
6 court shall consider the safety and welfare of the victim and
7 may impose a sentence of probation only where:
8 (1) the court finds (A) or (B) or both are
9 appropriate:
10 (A) the defendant is willing to undergo a
11 court approved counseling program for a minimum
12 duration of 2 years; or
13 (B) the defendant is willing to participate in
14 a court approved plan including but not limited to
15 the defendant's:
16 (i) removal from the household;
17 (ii) restricted contact with the victim;
18 (iii) continued financial support of the
19 family;
20 (iv) restitution for harm done to the
21 victim; and
22 (v) compliance with any other measures
23 that the court may deem appropriate; and
24 (2) the court orders the defendant to pay for the
25 victim's counseling services, to the extent that the
26 court finds, after considering the defendant's income and
27 assets, that the defendant is financially capable of
28 paying for such services, if the victim was under 18
29 years of age at the time the offense was committed and
30 requires counseling as a result of the offense.
31 Probation may be revoked or modified pursuant to Section
32 5-6-4; except where the court determines at the hearing that
33 the defendant violated a condition of his or her probation
34 restricting contact with the victim or other family members
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1 or commits another offense with the victim or other family
2 members, the court shall revoke the defendant's probation and
3 impose a term of imprisonment.
4 For the purposes of this Section, "family member" and
5 "victim" shall have the meanings ascribed to them in Section
6 12-12 of the Criminal Code of 1961.
7 (f) This Article shall not deprive a court in other
8 proceedings to order a forfeiture of property, to suspend or
9 cancel a license, to remove a person from office, or to
10 impose any other civil penalty.
11 (g) Whenever a defendant is convicted of an offense
12 under Sections 11-14, 11-15, 11-15.1, 11-16, 11-17, 11-18,
13 11-18.1, 11-19, 11-19.1, 11-19.2, 12-13, 12-14, 12-14.1,
14 12-15 or 12-16 of the Criminal Code of 1961, the defendant
15 shall undergo medical testing to determine whether the
16 defendant has any sexually transmissible disease, including a
17 test for infection with human immunodeficiency virus (HIV) or
18 any other identified causative agent of acquired
19 immunodeficiency syndrome (AIDS). Any such medical test
20 shall be performed only by appropriately licensed medical
21 practitioners and may include an analysis of any bodily
22 fluids as well as an examination of the defendant's person.
23 Except as otherwise provided by law, the results of such test
24 shall be kept strictly confidential by all medical personnel
25 involved in the testing and must be personally delivered in a
26 sealed envelope to the judge of the court in which the
27 conviction was entered for the judge's inspection in camera.
28 Acting in accordance with the best interests of the victim
29 and the public, the judge shall have the discretion to
30 determine to whom, if anyone, the results of the testing may
31 be revealed. The court shall notify the defendant of the test
32 results. The court shall also notify the victim if requested
33 by the victim, and if the victim is under the age of 15 and
34 if requested by the victim's parents or legal guardian, the
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1 court shall notify the victim's parents or legal guardian of
2 the test results. The court shall provide information on the
3 availability of HIV testing and counseling at Department of
4 Public Health facilities to all parties to whom the results
5 of the testing are revealed and shall direct the State's
6 Attorney to provide the information to the victim when
7 possible. A State's Attorney may petition the court to obtain
8 the results of any HIV test administered under this Section,
9 and the court shall grant the disclosure if the State's
10 Attorney shows it is relevant in order to prosecute a charge
11 of criminal transmission of HIV under Section 12-16.2 of the
12 Criminal Code of 1961 against the defendant. The court shall
13 order that the cost of any such test shall be paid by the
14 county and may be taxed as costs against the convicted
15 defendant.
16 (g-5) When an inmate is tested for an airborne
17 communicable disease, as determined by the Illinois
18 Department of Public Health including but not limited to
19 tuberculosis, the results of the test shall be personally
20 delivered by the warden or his or her designee in a sealed
21 envelope to the judge of the court in which the inmate must
22 appear for the judge's inspection in camera if requested by
23 the judge. Acting in accordance with the best interests of
24 those in the courtroom, the judge shall have the discretion
25 to determine what if any precautions need to be taken to
26 prevent transmission of the disease in the courtroom.
27 (h) Whenever a defendant is convicted of an offense
28 under Section 1 or 2 of the Hypodermic Syringes and Needles
29 Act, the defendant shall undergo medical testing to determine
30 whether the defendant has been exposed to human
31 immunodeficiency virus (HIV) or any other identified
32 causative agent of acquired immunodeficiency syndrome (AIDS).
33 Except as otherwise provided by law, the results of such test
34 shall be kept strictly confidential by all medical personnel
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1 involved in the testing and must be personally delivered in a
2 sealed envelope to the judge of the court in which the
3 conviction was entered for the judge's inspection in camera.
4 Acting in accordance with the best interests of the public,
5 the judge shall have the discretion to determine to whom, if
6 anyone, the results of the testing may be revealed. The court
7 shall notify the defendant of a positive test showing an
8 infection with the human immunodeficiency virus (HIV). The
9 court shall provide information on the availability of HIV
10 testing and counseling at Department of Public Health
11 facilities to all parties to whom the results of the testing
12 are revealed and shall direct the State's Attorney to provide
13 the information to the victim when possible. A State's
14 Attorney may petition the court to obtain the results of any
15 HIV test administered under this Section, and the court
16 shall grant the disclosure if the State's Attorney shows it
17 is relevant in order to prosecute a charge of criminal
18 transmission of HIV under Section 12-16.2 of the Criminal
19 Code of 1961 against the defendant. The court shall order
20 that the cost of any such test shall be paid by the county
21 and may be taxed as costs against the convicted defendant.
22 (i) All fines and penalties imposed under this Section
23 for any violation of Chapters 3, 4, 6, and 11 of the Illinois
24 Vehicle Code, or a similar provision of a local ordinance,
25 and any violation of the Child Passenger Protection Act, or a
26 similar provision of a local ordinance, shall be collected
27 and disbursed by the circuit clerk as provided under Section
28 27.5 of the Clerks of Courts Act.
29 (j) In cases when prosecution for any violation of
30 Section 11-6, 11-8, 11-9, 11-11, 11-14, 11-15, 11-15.1,
31 11-16, 11-17, 11-17.1, 11-18, 11-18.1, 11-19, 11-19.1,
32 11-19.2, 11-20.1, 11-21, 12-13, 12-14, 12-14.1, 12-15, or
33 12-16 of the Criminal Code of 1961, any violation of the
34 Illinois Controlled Substances Act, or any violation of the
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1 Cannabis Control Act results in conviction, a disposition of
2 court supervision, or an order of probation granted under
3 Section 10 of the Cannabis Control Act or Section 410 of the
4 Illinois Controlled Substance Act of a defendant, the court
5 shall determine whether the defendant is employed by a
6 facility or center as defined under the Child Care Act of
7 1969, a public or private elementary or secondary school, or
8 otherwise works with children under 18 years of age on a
9 daily basis. When a defendant is so employed, the court
10 shall order the Clerk of the Court to send a copy of the
11 judgment of conviction or order of supervision or probation
12 to the defendant's employer by certified mail. If the
13 employer of the defendant is a school, the Clerk of the Court
14 shall direct the mailing of a copy of the judgment of
15 conviction or order of supervision or probation to the
16 appropriate regional superintendent of schools. The regional
17 superintendent of schools shall notify the State Board of
18 Education of any notification under this subsection.
19 (j-5) A defendant at least 17 years of age who is
20 convicted of a felony and who has not been previously
21 convicted of a misdemeanor or felony and who is sentenced to
22 a term of imprisonment in the Illinois Department of
23 Corrections shall as a condition of his or her sentence be
24 required by the court to attend educational courses designed
25 to prepare the defendant for a high school diploma and to
26 work toward a high school diploma or to work toward passing
27 the high school level Test of General Educational Development
28 (GED) or to work toward completing a vocational training
29 program offered by the Department of Corrections. If a
30 defendant fails to complete the educational training required
31 by his or her sentence during the term of incarceration, the
32 Prisoner Review Board shall, as a condition of mandatory
33 supervised release, require the defendant, at his or her own
34 expense, to pursue a course of study toward a high school
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1 diploma or passage of the GED test. The Prisoner Review
2 Board shall revoke the mandatory supervised release of a
3 defendant who wilfully fails to comply with this subsection
4 (j-5) upon his or her release from confinement in a penal
5 institution while serving a mandatory supervised release
6 term; however, the inability of the defendant after making a
7 good faith effort to obtain financial aid or pay for the
8 educational training shall not be deemed a wilful failure to
9 comply. The Prisoner Review Board shall recommit the
10 defendant whose mandatory supervised release term has been
11 revoked under this subsection (j-5) as provided in Section
12 3-3-9. This subsection (j-5) does not apply to a defendant
13 who has a high school diploma or has successfully passed the
14 GED test. This subsection (j-5) does not apply to a defendant
15 who is determined by the court to be developmentally disabled
16 or otherwise mentally incapable of completing the educational
17 or vocational program.
18 (k) A court may not impose a sentence or disposition for
19 a felony or misdemeanor that requires the defendant to be
20 implanted or injected with or to use any form of birth
21 control.
22 (l) (A) Except as provided in paragraph (C) of
23 subsection (l), whenever a defendant, who is an alien as
24 defined by the Immigration and Nationality Act, is
25 convicted of any felony or misdemeanor offense, the court
26 after sentencing the defendant may, upon motion of the
27 State's Attorney, hold sentence in abeyance and remand
28 the defendant to the custody of the Attorney General of
29 the United States or his or her designated agent to be
30 deported when:
31 (1) a final order of deportation has been
32 issued against the defendant pursuant to proceedings
33 under the Immigration and Nationality Act, and
34 (2) the deportation of the defendant would not
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1 deprecate the seriousness of the defendant's conduct
2 and would not be inconsistent with the ends of
3 justice.
4 Otherwise, the defendant shall be sentenced as
5 provided in this Chapter V.
6 (B) If the defendant has already been sentenced for
7 a felony or misdemeanor offense, or has been placed on
8 probation under Section 10 of the Cannabis Control Act or
9 Section 410 of the Illinois Controlled Substances Act,
10 the court may, upon motion of the State's Attorney to
11 suspend the sentence imposed, commit the defendant to the
12 custody of the Attorney General of the United States or
13 his or her designated agent when:
14 (1) a final order of deportation has been
15 issued against the defendant pursuant to proceedings
16 under the Immigration and Nationality Act, and
17 (2) the deportation of the defendant would not
18 deprecate the seriousness of the defendant's conduct
19 and would not be inconsistent with the ends of
20 justice.
21 (C) This subsection (l) does not apply to offenders
22 who are subject to the provisions of paragraph (2) of
23 subsection (a) of Section 3-6-3.
24 (D) Upon motion of the State's Attorney, if a
25 defendant sentenced under this Section returns to the
26 jurisdiction of the United States, the defendant shall be
27 recommitted to the custody of the county from which he or
28 she was sentenced. Thereafter, the defendant shall be
29 brought before the sentencing court, which may impose any
30 sentence that was available under Section 5-5-3 at the
31 time of initial sentencing. In addition, the defendant
32 shall not be eligible for additional good conduct credit
33 for meritorious service as provided under Section 3-6-6.
34 (m) A person convicted of criminal defacement of
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1 property under Section 21-1.3 of the Criminal Code of 1961,
2 in which the property damage exceeds $300 and the property
3 damaged is a school building, shall be ordered to perform
4 community service that may include cleanup, removal, or
5 painting over the defacement.
6 (Source: P.A. 89-8, eff. 3-21-95; 89-314, eff. 1-1-96;
7 89-428, eff. 12-13-95; 89-462, eff. 5-29-96; 89-477, eff.
8 6-18-96; 89-507, eff. 7-1-97; 89-545, eff. 7-25-96; 89-587,
9 eff. 7-31-96; 89-627, eff. 1-1-97; 89-688, eff. 6-1-97;
10 90-14, eff. 7-1-97; 90-68, eff. 7-8-97; 90-680, eff. 1-1-99;
11 90-685, eff. 1-1-99; 90-787, eff. 8-14-98; revised 9-16-98.)