Bill Text: IL HB5330 | 2011-2012 | 97th General Assembly | Engrossed

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Bill Title: Amends the Sexually Violent Persons Commitment Act. Establishes procedures for serving a petition upon a person who is alleged to be sexually violent. Provides that if a person has been committed as a sexually violent person and has not been discharged, the Department of Human Services shall submit a written report to the court on his or her mental condition at least once every 12 months after his or her initial commitment for the purpose of determining (1) whether the person has made sufficient progress in treatment to be conditionally released, and (2) whether the person's condition has so changed since the most recent periodic reexamination (or initial commitment, if there has not yet been a periodic reexamination) that he or she is no longer a sexually violent person. Provides that at a discharge hearing the State has the right to have the person evaluated by experts chosen by the State. Incorporates into the discharge Section provisions relating to additional discharge hearings. Amends the Unified Code of Corrections. Provides that in making its determination of parole, the Prisoner Review Board shall consider the person's eligibility for commitment under the Sexually Violent Persons Commitment Act. Provides that if the Board paroles a person who is eligible for commitment as a sexually violent person, the effective date of the Board's order shall be stayed for 90 days for the purpose of evaluation and proceedings under the Sexually Violent Persons Commitment Act.

Spectrum: Partisan Bill (Democrat 6-0)

Status: (Passed) 2012-08-24 - Public Act . . . . . . . . . 97-1075 [HB5330 Detail]

Download: Illinois-2011-HB5330-Engrossed.html

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AN ACT concerning sexually violent persons.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Sexually Violent Persons Commitment Act is
amended by changing Sections 55, 60, and 65 and adding Section
21 as follows:
(725 ILCS 207/21 new)
Sec. 21. Service of petitions. If a person alleged to be a
sexually violent person is in the custody of or is being
supervised on parole or mandatory supervised release by the
Department of Corrections or Department of Juvenile Justice, a
petition filed under this Act may be served on the person by
personnel of the Department of Corrections or Department of
Juvenile Justice. Service may be proved by affidavit of the
person making service. The affidavit shall be returned to the
Attorney General or State's Attorney of the county where the
petition is pending for filing with the court. Service provided
for in this Section is in addition to other manners of service
provided for in Section 20 of this Act and the Code of Civil
Procedure.
(725 ILCS 207/55)
Sec. 55. Periodic reexamination; report.

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(a) If a person has been committed under Section 40 of this
Act and has not been discharged under Section 65 of this Act,
the Department shall submit a written report to the court on
his or her mental condition within 6 months after an initial
commitment under Section 40 and then at least once every 12
months after an initial commitment under Section 40 thereafter
for the purpose of determining whether: (1) the person has made
sufficient progress in treatment to be conditionally released
and (2) whether the person's condition has so changed since the
most recent periodic reexamination (or initial commitment, if
there has not yet been a periodic reexamination) that he or she
is no longer a sexually violent person or discharged. At the
time of a reexamination under this Section, the person who has
been committed may retain or, if he or she is indigent and so
requests, the court may appoint a qualified expert or a
professional person to examine him or her.
(b) Any examiner conducting an examination under this
Section shall prepare a written report of the examination no
later than 30 days after the date of the examination. The
examiner shall place a copy of the report in the person's
health care records and shall provide a copy of the report to
the court that committed the person under Section 40. The
examination shall be conducted in conformance with the
standards developed under the Sex Offender Management Board Act
and by an evaluator approved by the Board.
(c) Notwithstanding subsection (a) of this Section, the

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court that committed a person under Section 40 may order a
reexamination of the person at any time during the period in
which the person is subject to the commitment order. Any
examiner conducting an examination under this Section shall
prepare a written report of the examination no later than 30
days after the date of the examination.
(d) Petitions for discharge after reexamination must
follow the procedure outlined in Section 65 of this Act.
(Source: P.A. 93-616, eff. 1-1-04; 93-885, eff. 8-6-04.)
(725 ILCS 207/60)
Sec. 60. Petition for conditional release.
(a) Any person who is committed for institutional care in a
secure facility or other facility under Section 40 of this Act
may petition the committing court to modify its order by
authorizing conditional release if at least 12 6 months have
elapsed since the initial commitment order was entered, an
order continuing commitment was entered pursuant to Section 65,
the most recent release petition was denied or the most recent
order for conditional release was revoked. The director of the
facility at which the person is placed may file a petition
under this Section on the person's behalf at any time. If the
evaluator on behalf of the Department recommends that the
committed person is appropriate for conditional release, then
the director or designee shall, within 30 days of receipt of
the evaluator's report, file with the committing court notice

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of his or her intention whether or not to petition for
conditional release on the committed person's behalf.
(b) If the person files a timely petition without counsel,
the court shall serve a copy of the petition on the Attorney
General or State's Attorney, whichever is applicable and,
subject to paragraph (c)(1) of Section 25 of this Act, appoint
counsel. If the person petitions through counsel, his or her
attorney shall serve the Attorney General or State's Attorney,
whichever is applicable.
(c) Within 20 days after receipt of the petition, upon the
request of the committed person or on the court's own motion,
the court may appoint an examiner having the specialized
knowledge determined by the court to be appropriate, who shall
examine the mental condition of the person and furnish a
written report of the examination to the court within 30 days
after appointment. The examiners shall have reasonable access
to the person for purposes of examination and to the person's
past and present treatment records and patient health care
records. If any such examiner believes that the person is
appropriate for conditional release, the examiner shall report
on the type of treatment and services that the person may need
while in the community on conditional release. The State has
the right to have the person evaluated by experts chosen by the
State. Any examination or evaluation conducted under this
Section shall be in conformance with the standards developed
under the Sex Offender Management Board Act and conducted by an

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evaluator approved by the Board. The court shall set a probable
cause hearing as soon as practical after the examiners' reports
are filed. The probable cause hearing shall consist of a review
of the examining evaluators' reports and arguments on behalf of
the parties. If the court finds probable cause to believe the
person has made sufficient progress in treatment to the point
where he or she is no longer substantially probable to engage
in acts of sexual violence if on conditional release If the
court determines at the probable cause hearing that cause
exists to believe that it is not substantially probable that
the person will engage in acts of sexual violence if on release
or conditional release, the court shall set a hearing on the
issue.
(d) The court, without a jury, shall hear the petition as
soon as practical after the reports of all examiners are filed
with the court. The court shall grant the petition unless the
State proves by clear and convincing evidence that the person
has not made sufficient progress in treatment to the point
where he or she is no longer substantially probable to engage
in acts of sexual violence if on conditional release to be
conditionally released. In making a decision under this
subsection, the court must consider the nature and
circumstances of the behavior that was the basis of the
allegation in the petition under paragraph (b)(1) of Section 15
of this Act, the person's mental history and present mental
condition, and what arrangements are available to ensure that

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the person has access to and will participate in necessary
treatment.
(e) Before the court may enter an order directing
conditional release to a less restrictive alternative it must
find the following: (1) the person will be treated by a
Department approved treatment provider, (2) the treatment
provider has presented a specific course of treatment and has
agreed to assume responsibility for the treatment and will
report progress to the Department on a regular basis, and will
report violations immediately to the Department, consistent
with treatment and supervision needs of the respondent, (3)
housing exists that is sufficiently secure to protect the
community, and the person or agency providing housing to the
conditionally released person has agreed in writing to accept
the person, to provide the level of security required by the
court, and immediately to report to the Department if the
person leaves the housing to which he or she has been assigned
without authorization, (4) the person is willing to or has
agreed to comply with the treatment provider, the Department,
and the court, and (5) the person has agreed or is willing to
agree to comply with the behavioral monitoring requirements
imposed by the court and the Department.
(f) If the court finds that the person is appropriate for
conditional release, the court shall notify the Department. The
Department shall prepare a plan that identifies the treatment
and services, if any, that the person will receive in the

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community. The plan shall address the person's need, if any,
for supervision, counseling, medication, community support
services, residential services, vocational services, and
alcohol or other drug abuse treatment. The Department may
contract with a county health department, with another public
agency or with a private agency to provide the treatment and
services identified in the plan. The plan shall specify who
will be responsible for providing the treatment and services
identified in the plan. The plan shall be presented to the
court for its approval within 60 days after the court finding
that the person is appropriate for conditional release, unless
the Department and the person to be released request additional
time to develop the plan.
(g) The provisions of paragraphs (b)(4), (b)(5), and (b)(6)
of Section 40 of this Act apply to an order for conditional
release issued under this Section.
(Source: P.A. 96-1128, eff. 1-1-11.)
(725 ILCS 207/65)
Sec. 65. Petition for discharge; procedure.
(a)(1) If the Secretary determines at any time that a
person committed under this Act is no longer a sexually violent
person, the Secretary shall authorize the person to petition
the committing court for discharge. If the evaluator on behalf
of the Department recommends that the committed person is no
longer a sexually violent person, then the Secretary or

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designee shall, within 30 days of receipt of the evaluator's
report, file with the committing court notice of his or her
determination whether or not to authorize the committed person
to petition the committing court for discharge. The person
shall file the petition with the court and serve a copy upon
the Attorney General or the State's Attorney's office that
filed the petition under subsection (a) of Section 15 of this
Act, whichever is applicable. The court, upon receipt of the
petition for discharge, shall order a hearing to be held as
soon as practical after the date of receipt of the petition.
(2) At a hearing under this subsection, the Attorney
General or State's Attorney, whichever filed the original
petition, shall represent the State. The State has the right to
have the person evaluated by experts chosen by the State and
shall have the right to have the petitioner examined by an
expert or professional person of his or her choice. The
examination shall be conducted in conformance with the
standards developed under the Sex Offender Management Board Act
and by an evaluator approved by the Board. The committed person
or the State may elect to have the hearing before a jury. The
State has the burden of proving by clear and convincing
evidence that the petitioner is still a sexually violent
person.
(3) If the court or jury is satisfied that the State has
not met its burden of proof under paragraph (a)(2) of this
Section, the petitioner shall be discharged from the custody or

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supervision of the Department. If the court is satisfied that
the State has met its burden of proof under paragraph (a)(2),
the court may proceed under Section 40 of this Act to determine
whether to modify the petitioner's existing commitment order.
(b)(1) A person may petition the committing court for
discharge from custody or supervision without the Secretary's
approval. At the time of an examination under subsection (a) of
Section 55 of this Act, the Secretary shall provide the
committed person with a written notice of the person's right to
petition the court for discharge over the Secretary's
objection. The notice shall contain a waiver of rights. The
Secretary shall forward the notice and waiver form to the court
with the report of the Department's examination under Section
55 of this Act. If the person does not affirmatively waive the
right to petition, the court shall set a probable cause hearing
to determine whether facts exist to believe that since the most
recent periodic reexamination (or initial commitment, if there
has not yet been a periodic reexamination), the condition of
the committed person has so changed that he or she is no longer
a sexually violent person. However, if a person has previously
filed a petition for discharge without the Secretary's approval
and the court determined, either upon review of the petition or
following a hearing, that the person's petition was frivolous
or that the person was still a sexually violent person, then
the court shall deny any subsequent petition under this Section
without a hearing unless the petition contains facts upon which

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a court could reasonably find that the condition of the person
had so changed that a hearing was warranted that warrant a
hearing on whether the person is still a sexually violent
person. If a person does not file a petition for discharge, yet
fails to waive the right to petition under this Section, then
the probable cause hearing consists only of a review of the
reexamination reports and arguments on behalf of the parties.
The committed person has a right to have an attorney represent
him or her at the probable cause hearing, but the person is not
entitled to be present at the probable cause hearing. The
probable cause hearing under this Section must be held as soon
as practical after the filing of the reexamination report under
Section 55 of this Act.
(2) If the court determines at the probable cause hearing
under paragraph (b)(1) of this Section that probable cause
exists to believe that since the most recent periodic
reexamination (or initial commitment, if there has not yet been
a periodic reexamination), the condition of the committed
person has so changed that he or she is no longer a sexually
violent person, then the court shall set a hearing on the
issue. At a hearing under this Section, the committed person is
entitled to be present and to the benefit of the protections
afforded to the person under Section 25 of this Act. The
committed person or the State may elect to have a hearing under
this Section before a jury. A verdict of a jury under this
Section is not valid unless it is unanimous. The Attorney

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General or State's Attorney, whichever filed the original
petition, shall represent the State at a hearing under this
Section. The State has the right to have the committed person
evaluated by experts chosen by the State. The examination shall
be conducted in conformance with the standards developed under
the Sex Offender Management Board Act and by an evaluator
approved by the Board. At the hearing, the State has the burden
of proving by clear and convincing evidence that the committed
person is still a sexually violent person.
(3) If the court or jury is satisfied that the State has
not met its burden of proof under paragraph (b)(2) of this
Section, the person shall be discharged from the custody or
supervision of the Department. If the court or jury is
satisfied that the State has met its burden of proof under
paragraph (b)(2) of this Section, the court may proceed under
Section 40 of this Act to determine whether to modify the
person's existing commitment order.
(c) This Section applies to petitions pending on the
effective date of this amendatory Act of the 97th General
Assembly and to petitions filed on or after that date. This
provision is severable from the other provisions of this
Section under Section 1.31 of the Statute on Statutes.
(Source: P.A. 96-1128, eff. 1-1-11.)
(725 ILCS 207/70 rep.)
Section 10. The Sexually Violent Persons Commitment Act is

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amended by repealing Section 70.
Section 15. The Unified Code of Corrections is amended by
changing Sections 3-3-4 and 3-3-5 as follows:
(730 ILCS 5/3-3-4) (from Ch. 38, par. 1003-3-4)
Sec. 3-3-4. Preparation for Parole Hearing.
(a) The Prisoner Review Board shall consider the parole of
each eligible person committed to the Adult Division at least
30 days prior to the date he shall first become eligible for
parole, and shall consider the parole of each person committed
to the Department of Juvenile Justice as a delinquent at least
30 days prior to the expiration of the first year of
confinement.
(b) A person eligible for parole shall, no less than 15
days in advance of his parole interview, prepare a parole plan
in accordance with the rules of the Prisoner Review Board. The
person shall be assisted in preparing his parole plan by
personnel of the Department of Corrections, or the Department
of Juvenile Justice in the case of a person committed to that
Department, and may, for this purpose, be released on furlough
under Article 11 or on authorized absence under Section 3-9-4.
The appropriate Department shall also provide assistance in
obtaining information and records helpful to the individual for
his parole hearing. If the person eligible for parole has a
petition or any written submissions prepared on his or her

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behalf by an attorney or other representative, the attorney or
representative for the person eligible for parole must serve by
certified mail the State's Attorney of the county where he or
she was prosecuted with the petition or any written submissions
15 days after his or her parole interview. The State's Attorney
shall provide the attorney for the person eligible for parole
with a copy of his or her letter in opposition to parole via
certified mail within 5 business days of the en banc hearing.
(c) Any member of the Board shall have access at all
reasonable times to any committed person and to his master
record file within the Department, and the Department shall
furnish such a report to the Board concerning the conduct and
character of any such person prior to his or her parole
interview.
(d) In making its determination of parole, the Board shall
consider:
(1) material transmitted to the Department of Juvenile
Justice by the clerk of the committing court under Section
5-4-1 or Section 5-10 of the Juvenile Court Act or Section
5-750 of the Juvenile Court Act of 1987;
(2) the report under Section 3-8-2 or 3-10-2;
(3) a report by the Department and any report by the
chief administrative officer of the institution or
facility;
(4) a parole progress report;
(5) a medical and psychological report, if requested by

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the Board;
(6) material in writing, or on film, video tape or
other electronic means in the form of a recording submitted
by the person whose parole is being considered; and
(7) material in writing, or on film, video tape or
other electronic means in the form of a recording or
testimony submitted by the State's Attorney and the victim
or a concerned citizen pursuant to the Rights of Crime
Victims and Witnesses Act; and .
(8) the person's eligibility for commitment under the
Sexually Violent Persons Commitment Act.
(e) The prosecuting State's Attorney's office shall
receive from the Board reasonable written notice not less than
30 days prior to the parole interview and may submit relevant
information by oral argument or testimony of victims and
concerned citizens, or both, in writing, or on film, video tape
or other electronic means or in the form of a recording to the
Board for its consideration. Upon written request of the
State's Attorney's office, the Prisoner Review Board shall hear
protests to parole, except in counties of 1,500,000 or more
inhabitants where there shall be standing objections to all
such petitions. If a State's Attorney who represents a county
of less than 1,500,000 inhabitants requests a protest hearing,
the inmate's counsel or other representative shall also receive
notice of such request. This hearing shall take place the month
following the inmate's parole interview. If the inmate's parole

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interview is rescheduled then the Prisoner Review Board shall
promptly notify the State's Attorney of the new date. The
person eligible for parole shall be heard at the next scheduled
en banc hearing date. If the case is to be continued, the
State's Attorney's office and the attorney or representative
for the person eligible for parole will be notified of any
continuance within 5 business days. The State's Attorney may
waive the written notice.
(f) The victim of the violent crime for which the prisoner
has been sentenced shall receive notice of a parole hearing as
provided in paragraph (4) of subsection (d) of Section 4.5 of
the Rights of Crime Victims and Witnesses Act.
(g) Any recording considered under the provisions of
subsection (d)(6), (d)(7) or (e) of this Section shall be in
the form designated by the Board. Such recording shall be both
visual and aural. Every voice on the recording and person
present shall be identified and the recording shall contain
either a visual or aural statement of the person submitting
such recording, the date of the recording and the name of the
person whose parole eligibility is being considered. Such
recordings shall be retained by the Board and shall be deemed
to be submitted at any subsequent parole hearing if the victim
or State's Attorney submits in writing a declaration clearly
identifying such recording as representing the present
position of the victim or State's Attorney regarding the issues
to be considered at the parole hearing.

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(h) The Board shall not release any material to the inmate,
the inmate's attorney, any third party, or any other person
containing any information from the victim or from a person
related to the victim by blood, adoption, or marriage who has
written objections, testified at any hearing, or submitted
audio or visual objections to the inmate's parole, unless
provided with a waiver from that objecting party.
(Source: P.A. 96-875, eff. 1-22-10; 97-523, eff. 1-1-12.)
(730 ILCS 5/3-3-5) (from Ch. 38, par. 1003-3-5)
Sec. 3-3-5. Hearing and Determination.
(a) The Prisoner Review Board shall meet as often as need
requires to consider the cases of persons eligible for parole.
Except as otherwise provided in paragraph (2) of subsection (a)
of Section 3-3-2 of this Act, the Prisoner Review Board may
meet and order its actions in panels of 3 or more members. The
action of a majority of the panel shall be the action of the
Board. In consideration of persons committed to the Department
of Juvenile Justice, the panel shall have at least a majority
of members experienced in juvenile matters.
(b) If the person under consideration for parole is in the
custody of the Department, at least one member of the Board
shall interview him, and a report of that interview shall be
available for the Board's consideration. However, in the
discretion of the Board, the interview need not be conducted if
a psychiatric examination determines that the person could not

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meaningfully contribute to the Board's consideration. The
Board may in its discretion parole a person who is then outside
the jurisdiction on his record without an interview. The Board
need not hold a hearing or interview a person who is paroled
under paragraphs (d) or (e) of this Section or released on
Mandatory release under Section 3-3-10.
(c) The Board shall not parole a person eligible for parole
if it determines that:
(1) there is a substantial risk that he will not
conform to reasonable conditions of parole; or
(2) his release at that time would deprecate the
seriousness of his offense or promote disrespect for the
law; or
(3) his release would have a substantially adverse
effect on institutional discipline.
(d) A person committed under the Juvenile Court Act or the
Juvenile Court Act of 1987 who has not been sooner released
shall be paroled on or before his 20th birthday to begin
serving a period of parole under Section 3-3-8.
(e) A person who has served the maximum term of
imprisonment imposed at the time of sentencing less time credit
for good behavior shall be released on parole to serve a period
of parole under Section 5-8-1.
(f) The Board shall render its decision within a reasonable
time after hearing and shall state the basis therefor both in
the records of the Board and in written notice to the person on

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whose application it has acted. In its decision, the Board
shall set the person's time for parole, or if it denies parole
it shall provide for a rehearing not less frequently than once
every year, except that the Board may, after denying parole,
schedule a rehearing no later than 5 years from the date of the
parole denial, if the Board finds that it is not reasonable to
expect that parole would be granted at a hearing prior to the
scheduled rehearing date. If the Board shall parole a person,
and, if he is not released within 90 days from the effective
date of the order granting parole, the matter shall be returned
to the Board for review.
(f-1) If the Board paroles a person who is eligible for
commitment as a sexually violent person, the effective date of
the Board's order shall be stayed for 90 days for the purpose
of evaluation and proceedings under the Sexually Violent
Persons Commitment Act.
(g) The Board shall maintain a registry of decisions in
which parole has been granted, which shall include the name and
case number of the prisoner, the highest charge for which the
prisoner was sentenced, the length of sentence imposed, the
date of the sentence, the date of the parole, and the basis for
the decision of the Board to grant parole and the vote of the
Board on any such decisions. The registry shall be made
available for public inspection and copying during business
hours and shall be a public record pursuant to the provisions
of the Freedom of Information Act.

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(h) The Board shall promulgate rules regarding the exercise
of its discretion under this Section.
(Source: P.A. 96-875, eff. 1-22-10; 97-522, eff. 1-1-12.)