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


Bill Title: Amends the Unified Code of Corrections. Provides that it is a mitigating factor in sentencing that 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, after sentencing, been diagnosed as suffering from post-partum depression or post-partum psychosis, or both, by a qualified medical person and the diagnoses or testimony, or both, was not used at trial or sentencing, or both. Amends the Code of Civil Procedure concerning relief from final orders and judgments, after 30 days from the entry of the judgment. Provides that a meritorious claim may be made for that relief if the allegations in the petition establish each of the following by a preponderance of the evidence: (1) the movant was convicted of a forcible felony; (2) the movant's participation in the offense was a direct result of the movant's mental state either suffering from post-partum depression or post-partum psychosis; (3) no evidence of post-partum depression or post-partum psychosis was presented by a qualified medical person at trial or sentencing, or both; (4) the movant 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 (5) evidence of post-partum depression or post-partum psychosis as suffered by the movant 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. Defines "post-partum depression" and "post-partum psychosis".

Spectrum: Partisan Bill (Democrat 8-0)

Status: (Engrossed) 2017-08-04 - Pursuant to Senate Rule 3-9(b) / Referred to Assignments [HB1764 Detail]

Download: Illinois-2017-HB1764-Engrossed.html



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1 AN ACT concerning criminal law.
2 Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4 Section 5. The Code of Criminal Procedure of 1963 is
5amended by changing Section 122-1 as follows:
6 (725 ILCS 5/122-1) (from Ch. 38, par. 122-1)
7 Sec. 122-1. Petition in the trial court.
8 (a) Any person imprisoned in the penitentiary may institute
9a proceeding under this Article if the person asserts that:
10 (1) in the proceedings which resulted in his or her
11 conviction there was a substantial denial of his or her
12 rights under the Constitution of the United States or of
13 the State of Illinois or both; or
14 (2) the death penalty was imposed and there is newly
15 discovered evidence not available to the person at the time
16 of the proceeding that resulted in his or her conviction
17 that establishes a substantial basis to believe that the
18 defendant is actually innocent by clear and convincing
19 evidence; or .
20 (3) by a preponderance of the evidence that each of the
21 following allegations in the petition establish:
22 (A) he or she was convicted of a forcible felony;
23 (B) his or her participation in the offense was a

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1 direct result of the person's mental state either
2 suffering from post-partum depression or post-partum
3 psychosis;
4 (C) no evidence of post-partum depression or
5 post-partum psychosis was presented by a qualified
6 medical person at trial or sentencing, or both;
7 (D) he or she was unaware of the mitigating nature
8 of the evidence or if aware was at the time unable to
9 present this defense due to suffering from post-partum
10 depression or post-partum psychosis or at the time of
11 trial or sentencing neither was a recognized mental
12 illness and as such unable to receive proper treatment;
13 and
14 (E) evidence of post-partum depression or
15 post-partum psychosis as suffered by the person is
16 material and noncumulative to other evidence offered
17 at the time of trial or sentencing and it is of such a
18 conclusive character that it would likely change the
19 sentence imposed by the original court.
20 Nothing in this paragraph (3) prevents a person from
21 applying for any other relief under this Article or any
22 other law otherwise available to him or her.
23 As used in this paragraph (3):
24 "Post-partum depression" means a mood disorder
25 which strikes many women during and after pregnancy
26 which usually occurs during pregnancy and up to 12

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1 months after delivery. This depression can include
2 anxiety disorders.
3 "Post-partum psychosis" means an extreme form of
4 post-partum depression which can occur during
5 pregnancy and up to 12 months after delivery. This can
6 include losing touch with reality, distorted thinking,
7 delusions, auditory and visual hallucinations,
8 paranoia, hyperactivity and rapid speech, or mania.
9 (a-5) A proceeding under paragraph (2) of subsection (a)
10may be commenced within a reasonable period of time after the
11person's conviction notwithstanding any other provisions of
12this Article. In such a proceeding regarding actual innocence,
13if the court determines the petition is frivolous or is
14patently without merit, it shall dismiss the petition in a
15written order, specifying the findings of fact and conclusions
16of law it made in reaching its decision. Such order of
17dismissal is a final judgment and shall be served upon the
18petitioner by certified mail within 10 days of its entry.
19 (b) The proceeding shall be commenced by filing with the
20clerk of the court in which the conviction took place a
21petition (together with a copy thereof) verified by affidavit.
22Petitioner shall also serve another copy upon the State's
23Attorney by any of the methods provided in Rule 7 of the
24Supreme Court. The clerk shall docket the petition for
25consideration by the court pursuant to Section 122-2.1 upon his
26or her receipt thereof and bring the same promptly to the

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1attention of the court.
2 (c) Except as otherwise provided in subsection (a-5), if
3the petitioner is under sentence of death and a petition for
4writ of certiorari is filed, no proceedings under this Article
5shall be commenced more than 6 months after the conclusion of
6proceedings in the United States Supreme Court, unless the
7petitioner alleges facts showing that the delay was not due to
8his or her culpable negligence. If a petition for certiorari is
9not filed, no proceedings under this Article shall be commenced
10more than 6 months from the date for filing a certiorari
11petition, unless the petitioner alleges facts showing that the
12delay was not due to his or her culpable negligence.
13 When a defendant has a sentence other than death, no
14proceedings under this Article shall be commenced more than 6
15months after the conclusion of proceedings in the United States
16Supreme Court, unless the petitioner alleges facts showing that
17the delay was not due to his or her culpable negligence. If a
18petition for certiorari is not filed, no proceedings under this
19Article shall be commenced more than 6 months from the date for
20filing a certiorari petition, unless the petitioner alleges
21facts showing that the delay was not due to his or her culpable
22negligence. If a defendant does not file a direct appeal, the
23post-conviction petition shall be filed no later than 3 years
24from the date of conviction, unless the petitioner alleges
25facts showing that the delay was not due to his or her culpable
26negligence.

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1 This limitation does not apply to a petition advancing a
2claim of actual innocence.
3 (d) A person seeking relief by filing a petition under this
4Section must specify in the petition or its heading that it is
5filed under this Section. A trial court that has received a
6petition complaining of a conviction or sentence that fails to
7specify in the petition or its heading that it is filed under
8this Section need not evaluate the petition to determine
9whether it could otherwise have stated some grounds for relief
10under this Article.
11 (e) A proceeding under this Article may not be commenced on
12behalf of a defendant who has been sentenced to death without
13the written consent of the defendant, unless the defendant,
14because of a mental or physical condition, is incapable of
15asserting his or her own claim.
16 (f) Except for petitions brought under paragraph (3) of
17subsection (a) of this Section, only Only one petition may be
18filed by a petitioner under this Article without leave of the
19court. Leave of court may be granted only if a petitioner
20demonstrates cause for his or her failure to bring the claim in
21his or her initial post-conviction proceedings and prejudice
22results from that failure. For purposes of this subsection (f):
23(1) a prisoner shows cause by identifying an objective factor
24that impeded his or her ability to raise a specific claim
25during his or her initial post-conviction proceedings; and (2)
26a prisoner shows prejudice by demonstrating that the claim not

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1raised during his or her initial post-conviction proceedings so
2infected the trial that the resulting conviction or sentence
3violated due process.
4(Source: P.A. 93-493, eff. 1-1-04; 93-605, eff. 11-19-03;
593-972, eff. 8-20-04.)
6 Section 10. The Unified Code of Corrections is amended by
7changing Section 5-5-3.1 as follows:
8 (730 ILCS 5/5-5-3.1) (from Ch. 38, par. 1005-5-3.1)
9 Sec. 5-5-3.1. Factors in mitigation.
10 (a) The following grounds shall be accorded weight in favor
11of withholding or minimizing a sentence of imprisonment:
12 (1) The defendant's criminal conduct neither caused
13 nor threatened serious physical harm to another.
14 (2) The defendant did not contemplate that his criminal
15 conduct would cause or threaten serious physical harm to
16 another.
17 (3) The defendant acted under a strong provocation.
18 (4) There were substantial grounds tending to excuse or
19 justify the defendant's criminal conduct, though failing
20 to establish a defense.
21 (5) The defendant's criminal conduct was induced or
22 facilitated by someone other than the defendant.
23 (6) The defendant has compensated or will compensate
24 the victim of his criminal conduct for the damage or injury

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1 that he sustained.
2 (7) The defendant has no history of prior delinquency
3 or criminal activity or has led a law-abiding life for a
4 substantial period of time before the commission of the
5 present crime.
6 (8) The defendant's criminal conduct was the result of
7 circumstances unlikely to recur.
8 (9) The character and attitudes of the defendant
9 indicate that he is unlikely to commit another crime.
10 (10) The defendant is particularly likely to comply
11 with the terms of a period of probation.
12 (11) The imprisonment of the defendant would entail
13 excessive hardship to his dependents.
14 (12) The imprisonment of the defendant would endanger
15 his or her medical condition.
16 (13) The defendant was a person with an intellectual
17 disability as defined in Section 5-1-13 of this Code.
18 (14) The defendant sought or obtained emergency
19 medical assistance for an overdose and was convicted of a
20 Class 3 felony or higher possession, manufacture, or
21 delivery of a controlled, counterfeit, or look-alike
22 substance or a controlled substance analog under the
23 Illinois Controlled Substances Act or a Class 2 felony or
24 higher possession, manufacture or delivery of
25 methamphetamine under the Methamphetamine Control and
26 Community Protection Act.

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1 (15) At the time of the offense, the defendant is or
2 had been the victim of domestic violence and the effects of
3 the domestic violence tended to excuse or justify the
4 defendant's criminal conduct. As used in this paragraph
5 (15), "domestic violence" means abuse as defined in Section
6 103 of the Illinois Domestic Violence Act of 1986.
7 (16) At the time of the offense, the defendant was
8 suffering from a serious mental illness which, though
9 insufficient to establish the defense of insanity,
10 substantially affected his or her ability to understand the
11 nature of his or her acts or to conform his or her conduct
12 to the requirements of the law.
13 (17) At the time of the offense, the defendant was
14 suffering from post-partum depression or post-partum
15 psychosis which was either undiagnosed or untreated, or
16 both, and this temporary mental illness tended to excuse or
17 justify the defendant's criminal conduct and the defendant
18 has been diagnosed as suffering from post-partum
19 depression or post-partum psychosis, or both, by a
20 qualified medical person and the diagnoses or testimony, or
21 both, was not used at trial. In this paragraph (17):
22 "Post-partum depression" means a mood disorder
23 which strikes many women during and after pregnancy
24 which usually occurs during pregnancy and up to 12
25 months after delivery. This depression can include
26 anxiety disorders.

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1 "Post-partum psychosis" means an extreme form of
2 post-partum depression which can occur during
3 pregnancy and up to 12 months after delivery. This can
4 include losing touch with reality, distorted thinking,
5 delusions, auditory and visual hallucinations,
6 paranoia, hyperactivity and rapid speech, or mania.
7 (b) If the court, having due regard for the character of
8the offender, the nature and circumstances of the offense and
9the public interest finds that a sentence of imprisonment is
10the most appropriate disposition of the offender, or where
11other provisions of this Code mandate the imprisonment of the
12offender, the grounds listed in paragraph (a) of this
13subsection shall be considered as factors in mitigation of the
14term imposed.
15(Source: P.A. 98-463, eff. 8-16-13; 99-143, eff. 7-27-15;
1699-384, eff. 1-1-16; 99-642, eff. 7-28-16; 99-877, eff.
178-22-16.)
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