Bill Amendment: IL HB1764 | 2017-2018 | 100th General Assembly

NOTE: For additional amemendments please see the Bill Drafting List

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Bill Title: MITIGATION-POST-PARTUM DEPRESS

Status: 2018-01-08 - Public Act . . . . . . . . . 100-0574 [HB1764 Detail]

Download: Illinois-2017-HB1764-House_Amendment_002.html

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Rep. Linda Chapa LaVia

Filed: 3/24/2017

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AMENDMENT TO HOUSE BILL 1764
AMENDMENT NO. ______. Amend House Bill 1764 by replacing
everything after the enacting clause with the following:
"Section 5. The Code of Criminal Procedure of 1963 is
amended by changing Section 122-1 as follows:
(725 ILCS 5/122-1) (from Ch. 38, par. 122-1)
Sec. 122-1. Petition in the trial court.
(a) Any person imprisoned in the penitentiary may institute
a proceeding under this Article if the person asserts that:
(1) in the proceedings which resulted in his or her
conviction there was a substantial denial of his or her
rights under the Constitution of the United States or of
the State of Illinois or both; or
(2) the death penalty was imposed and there is newly
discovered evidence not available to the person at the time
of the proceeding that resulted in his or her conviction

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that establishes a substantial basis to believe that the
defendant is actually innocent by clear and convincing
evidence; or .
(3) by a preponderance of the evidence that each of the
following allegations in the petition establish:
(A) he or she was convicted of a forcible felony;
(B) his or her participation in the offense was a
direct result of the person's mental state either
suffering from post-partum depression or post-partum
psychosis;
(C) no evidence of post-partum depression or
post-partum psychosis was presented by a qualified
medical person at trial or sentencing, or both;
(D) he or she was unaware of the mitigating nature
of the evidence or if aware was at the time unable to
present this defense due to suffering from post-partum
depression or post-partum psychosis or at the time of
trial or sentencing neither was a recognized mental
illness and as such unable to receive proper treatment;
and
(E) evidence of post-partum depression or
post-partum psychosis as suffered by the person is
material and noncumulative to other evidence offered
at the time of trial or sentencing and it is of such a
conclusive character that it would likely change the
sentence imposed by the original court.

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Nothing in this paragraph (3) prevents a person from
applying for any other relief under this Article or any
other law otherwise available to him or her.
As used in this paragraph (3):
"Post-partum depression" means a mood disorder
which strikes many women during and after pregnancy
which usually occurs during pregnancy and up to 12
months after delivery. This depression can include
anxiety disorders.
"Post-partum psychosis" means an extreme form of
post-partum depression which can occur during
pregnancy and up to 12 months after delivery. This can
include losing touch with reality, distorted thinking,
delusions, auditory and visual hallucinations,
paranoia, hyperactivity and rapid speech, or mania.
(a-5) A proceeding under paragraph (2) of subsection (a)
may be commenced within a reasonable period of time after the
person's conviction notwithstanding any other provisions of
this Article. In such a proceeding regarding actual innocence,
if the court determines the petition is frivolous or is
patently without merit, it shall dismiss the petition in a
written order, specifying the findings of fact and conclusions
of law it made in reaching its decision. Such order of
dismissal is a final judgment and shall be served upon the
petitioner by certified mail within 10 days of its entry.
(b) The proceeding shall be commenced by filing with the

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clerk of the court in which the conviction took place a
petition (together with a copy thereof) verified by affidavit.
Petitioner shall also serve another copy upon the State's
Attorney by any of the methods provided in Rule 7 of the
Supreme Court. The clerk shall docket the petition for
consideration by the court pursuant to Section 122-2.1 upon his
or her receipt thereof and bring the same promptly to the
attention of the court.
(c) Except as otherwise provided in subsection (a-5), if
the petitioner is under sentence of death and a petition for
writ of certiorari is filed, no proceedings under this Article
shall be commenced more than 6 months after the conclusion of
proceedings in the United States Supreme Court, unless the
petitioner alleges facts showing that the delay was not due to
his or her culpable negligence. If a petition for certiorari is
not filed, no proceedings under this Article shall be commenced
more than 6 months from the date for filing a certiorari
petition, unless the petitioner alleges facts showing that the
delay was not due to his or her culpable negligence.
When a defendant has a sentence other than death, no
proceedings under this Article shall be commenced more than 6
months after the conclusion of proceedings in the United States
Supreme Court, unless the petitioner alleges facts showing that
the delay was not due to his or her culpable negligence. If a
petition for certiorari is not filed, no proceedings under this
Article shall be commenced more than 6 months from the date for

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filing a certiorari petition, unless the petitioner alleges
facts showing that the delay was not due to his or her culpable
negligence. If a defendant does not file a direct appeal, the
post-conviction petition shall be filed no later than 3 years
from the date of conviction, unless the petitioner alleges
facts showing that the delay was not due to his or her culpable
negligence.
This limitation does not apply to a petition advancing a
claim of actual innocence.
(d) A person seeking relief by filing a petition under this
Section must specify in the petition or its heading that it is
filed under this Section. A trial court that has received a
petition complaining of a conviction or sentence that fails to
specify in the petition or its heading that it is filed under
this Section need not evaluate the petition to determine
whether it could otherwise have stated some grounds for relief
under this Article.
(e) A proceeding under this Article may not be commenced on
behalf of a defendant who has been sentenced to death without
the written consent of the defendant, unless the defendant,
because of a mental or physical condition, is incapable of
asserting his or her own claim.
(f) Except for petitions brought under paragraph (3) of
subsection (a) of this Section, only Only one petition may be
filed by a petitioner under this Article without leave of the
court. Leave of court may be granted only if a petitioner

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demonstrates cause for his or her failure to bring the claim in
his or her initial post-conviction proceedings and prejudice
results from that failure. For purposes of this subsection (f):
(1) a prisoner shows cause by identifying an objective factor
that impeded his or her ability to raise a specific claim
during his or her initial post-conviction proceedings; and (2)
a prisoner shows prejudice by demonstrating that the claim not
raised during his or her initial post-conviction proceedings so
infected the trial that the resulting conviction or sentence
violated due process.
(Source: P.A. 93-493, eff. 1-1-04; 93-605, eff. 11-19-03;
93-972, eff. 8-20-04.)
Section 10. The Unified Code of Corrections is amended by
changing Section 5-5-3.1 as follows:
(730 ILCS 5/5-5-3.1) (from Ch. 38, par. 1005-5-3.1)
Sec. 5-5-3.1. Factors in mitigation.
(a) The following grounds shall be accorded weight in favor
of withholding or minimizing a sentence of imprisonment:
(1) The defendant's criminal conduct neither caused
nor threatened serious physical harm to another.
(2) The defendant did not contemplate that his criminal
conduct would cause or threaten serious physical harm to
another.
(3) The defendant acted under a strong provocation.

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(4) There were substantial grounds tending to excuse or
justify the defendant's criminal conduct, though failing
to establish a defense.
(5) The defendant's criminal conduct was induced or
facilitated by someone other than the defendant.
(6) The defendant has compensated or will compensate
the victim of his criminal conduct for the damage or injury
that he sustained.
(7) The defendant has no history of prior delinquency
or criminal activity or has led a law-abiding life for a
substantial period of time before the commission of the
present crime.
(8) The defendant's criminal conduct was the result of
circumstances unlikely to recur.
(9) The character and attitudes of the defendant
indicate that he is unlikely to commit another crime.
(10) The defendant is particularly likely to comply
with the terms of a period of probation.
(11) The imprisonment of the defendant would entail
excessive hardship to his dependents.
(12) The imprisonment of the defendant would endanger
his or her medical condition.
(13) The defendant was a person with an intellectual
disability as defined in Section 5-1-13 of this Code.
(14) The defendant sought or obtained emergency
medical assistance for an overdose and was convicted of a

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Class 3 felony or higher possession, manufacture, or
delivery of a controlled, counterfeit, or look-alike
substance or a controlled substance analog under the
Illinois Controlled Substances Act or a Class 2 felony or
higher possession, manufacture or delivery of
methamphetamine under the Methamphetamine Control and
Community Protection Act.
(15) At the time of the offense, the defendant is or
had been the victim of domestic violence and the effects of
the domestic violence tended to excuse or justify the
defendant's criminal conduct. As used in this paragraph
(15), "domestic violence" means abuse as defined in Section
103 of the Illinois Domestic Violence Act of 1986.
(16) At the time of the offense, the defendant was
suffering from a serious mental illness which, though
insufficient to establish the defense of insanity,
substantially affected his or her ability to understand the
nature of his or her acts or to conform his or her conduct
to the requirements of the law.
(17) At the time of the offense, the defendant was
suffering from post-partum depression or post-partum
psychosis which was either undiagnosed or untreated, or
both, and this temporary mental illness tended to excuse or
justify the defendant's criminal conduct and the defendant
has been diagnosed as suffering from post-partum
depression or post-partum psychosis, or both, by a

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qualified medical person and the diagnoses or testimony, or
both, was not used at trial. In this paragraph (17):
"Post-partum depression" means a mood disorder
which strikes many women during and after pregnancy
which usually occurs during pregnancy and up to 12
months after delivery. This depression can include
anxiety disorders.
"Post-partum psychosis" means an extreme form of
post-partum depression which can occur during
pregnancy and up to 12 months after delivery. This can
include losing touch with reality, distorted thinking,
delusions, auditory and visual hallucinations,
paranoia, hyperactivity and rapid speech, or mania.
(b) If the court, having due regard for the character of
the offender, the nature and circumstances of the offense and
the public interest finds that a sentence of imprisonment is
the most appropriate disposition of the offender, or where
other provisions of this Code mandate the imprisonment of the
offender, the grounds listed in paragraph (a) of this
subsection shall be considered as factors in mitigation of the
term imposed.
(Source: P.A. 98-463, eff. 8-16-13; 99-143, eff. 7-27-15;
99-384, eff. 1-1-16; 99-642, eff. 7-28-16; 99-877, eff.
8-22-16.)".