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96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010 SB0048
Introduced 1/30/2009, by Sen. Kwame Raoul SYNOPSIS AS INTRODUCED: |
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Creates the Illinois Torture Inquiry and Relief Commission Act. Creates the Illinois Torture Inquiry and
Relief Commission as an independent commission under the Illinois Human Rights Commission for
administrative purposes. Provides that the Commission shall conduct inquiries into claims of torture with
priority to be given to those cases in which the convicted
person is currently incarcerated solely for the crime with respect to
which he or she claims torture by Jon Burge or officers
under his command, or both. Provides that if the Commission concludes there is sufficient
evidence of torture to merit judicial review, the Chair of the
Commission shall request the Chief Judge of the Circuit Court
of Cook County for assignment to a trial judge for
consideration. Provides that the Act applies to claims of torture filed not later than 5 years after the effective date of the Act. Effective immediately.
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A BILL FOR
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SB0048 |
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| AN ACT concerning torture.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 1. Short title. This Act may be cited as the |
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| Illinois Torture Inquiry and Relief Commission Act. |
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| Section 5. Definitions. As used in this Act: |
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| (1) "Claim of torture" means a claim on behalf of a living
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| person convicted of a felony in Illinois asserting that he was
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| tortured into confessing to the crime for which the person was
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| convicted and the tortured confession was used to obtain the
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| conviction and for which there is some credible evidence
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| related to allegations of torture committed by Commander Jon
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| Burge or any officer under the supervision of Jon Burge. |
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| (2) "Commission" means the Illinois Torture Inquiry and
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| Relief Commission established by this Act. |
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| (3) "Convicted person" means the person making a claim of |
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| torture under this Act. |
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| (4) "Director" means the Director of the Illinois Torture
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| Inquiry and Relief Commission. |
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| (5) "Victim" means the victim of the crime, or if the
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| victim of the crime is deceased, the next of kin of the victim, |
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| which shall be the parent, spouse, child, or sibling of the |
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| deceased victim. |
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| Section 10. Purpose of Act. This Act establishes an
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| extraordinary procedure to investigate and determine factual
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| claims of torture related to allegations of torture that shall
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| require an individual to voluntarily waive rights and
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| privileges as described in this Act.
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| Section 15. Commission established. |
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| (a) There is established the Illinois Torture Inquiry and
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| Relief Commission. The Illinois Torture Inquiry and Relief
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| Commission shall be an independent commission under the |
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| Illinois Human Rights Commission for
administrative purposes. |
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| (b) The Illinois Human Rights Commission shall
provide |
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| administrative support to the Commission as needed. The
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| Executive Director of the Illinois Human Rights Commission |
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| shall not reduce or modify the budget of the Commission or use
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| funds appropriated to the Commission without the approval of
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| the Commission.
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| Section 20. Membership; chair; meetings; quorum. |
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| (a) The Commission shall consist of 8 voting members as
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| follows: |
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| (1) One shall be a retired Circuit Court Judge.
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| (2) One shall be a former prosecuting attorney. |
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| (3) One shall be a law school professor. |
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| (4) One shall be engaged in the practice of criminal
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| defense law. |
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| (5) Three shall be members of the public who are not
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| attorneys and who are not officers or employees of the
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| Judicial branch. |
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| (6) One shall be a former public defender. |
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| The Commission shall be appointed as follows: |
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| 2 members appointed by the Governor;
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| 2 members appointed by the President of the Senate;
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| One member appointed by the Minority Leader of the
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| Senate;
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| 2 members appointed by the Speaker of the House of
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| Representatives; and
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| One member appointed by the Minority Leader of the
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| House of Representatives.
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| After an appointee has served his or her first 3-year term,
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| the subsequent appointment or reappointment may be by the
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| initial appointing authority. |
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| (a-1) The appointing authority shall also appoint
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| alternate Commission members for the Commission members he |
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| or
she has appointed to serve in the event of scheduling
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| conflicts, conflicts of interest, disability, or other
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| disqualification arising in a particular case. Where an |
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| alternate member is called upon to serve in a particular |
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| place, the alternate member shall vote in the place of, and |
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| otherwise exercise the same powers as, the member which he |
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| or she is replacing. The alternate
member shall have the |
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| same qualifications for appointment as
the original |
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| member. In making the appointments, the appointing
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| authority shall make a good faith effort to appoint members
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| with different perspectives of the justice system. The
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| appointing authority shall also consider geographical
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| location, gender, and racial diversity in making the
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| appointments.
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| (b) The retired judge who is appointed as a member |
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| under subsection
(a) shall serve as Chair of the |
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| Commission. The Commission
shall have its initial meeting |
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| no later than one month after the appointment of a quorum |
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| of members of the Commission,
at the call of the Chair. The |
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| Commission shall meet a minimum
of once every 6 months and |
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| may also meet more often at the call
of the Chair. The |
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| Commission shall meet at such time and place
as designated |
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| by the Chair, in accordance with the provisions of the Open |
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| Meetings Act. Notice of the meetings shall be
given at such |
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| time and manner as provided by the rules of the
Commission, |
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| in accordance with the provisions of the Open Meetings Act. |
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| A majority of the voting members shall constitute a
quorum. |
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| All Commission votes shall be by majority vote of the |
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| voting members appointed.
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| Section 25. Terms of members; compensation; expenses. |
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| (a) Of the initial members, the appointments under clauses |
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| (a)(3) and (6) of Section 20 shall be for
one-year terms, the |
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| appointments under clauses (a)(1), (2), and (4) of Section 20 |
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| shall be for 2-year terms, and the
appointments under clause |
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| (a)(5) of Section 20 shall be for 3-year terms. Thereafter, all |
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| terms
shall be for 3 years. Members of the Commission shall |
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| serve no
more than 2 consecutive 3-year terms plus any initial |
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| term of
less than 3 years. Unless provided otherwise by this |
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| Act, all
terms of members shall begin on January 1 and end on |
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| December
31.
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| Members serving by virtue of elective or appointive office,
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| may serve only so long as the office holders hold those
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| respective offices. The Chief Judge of the Cook County Circuit
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| Court may remove members for good cause shown. Vacancies |
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| occurring
before the expiration of a term shall be filled in |
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| the manner
provided for the members first appointed.
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| (b) The Commission members shall receive no salary for
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| serving, but may be reimbursed for reasonable expenses incurred |
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| as a result of their duties as members of the Commission from |
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| funds appropriated by the General Assembly for that purpose, or |
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| from funds obtained from sources other than the General |
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| Assembly. |
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| Section 30. Director and other staff. The Commission shall
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| employ a Director. The Director shall be an attorney licensed
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| to practice in Illinois at the time of appointment and at all
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| times during service as Director. The Director shall assist the
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| Commission in developing rules and standards for cases accepted
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| for review, coordinate investigation of cases accepted for
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| review, maintain records for all case investigations, prepare
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| reports outlining Commission investigations and
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| recommendations to the trial court, and apply for and accept on
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| behalf of the Commission any funds that may become available
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| from government grants, private gifts, donations, or bequests
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| from any source. |
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| Subject to the approval of the Chair, the Director shall
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| employ such other staff and shall contract for services as is
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| necessary to assist the Commission in the performance of its
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| duties, and as funds permit.
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| The Commission may meet in an area provided by the
Illinois |
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| Human Rights Commission, or any other State agency. The
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| Illinois Human Rights Commission shall provide, directly or |
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| through any other State agency,
office space for the Commission |
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| and the Commission staff.
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| Section 35. Duties. The Commission shall have the |
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| following
duties and powers:
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| (1) To establish the criteria and screening process to
be |
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| used to determine which cases shall be accepted for
review.
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| (2) To conduct inquiries into claims of torture with
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| priority to be given to those cases in which the convicted
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| person is currently incarcerated solely for the crime to
which |
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| he or she claims torture by Jon Burge or officers
under his |
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| command, or both. |
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| (3) To coordinate the investigation of cases accepted
for |
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| review. |
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| (4) To maintain records for all case investigations. |
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| (5) To prepare written reports outlining Commission
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| investigations and recommendations to the trial court at
the |
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| completion of each inquiry. |
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| (6) To apply for and accept any funds that may become
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| available for the Commission's work from government
grants, |
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| private gifts, donations, or bequests from any
source.
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| Section 40. Claims of torture; waiver of convicted person's
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| procedural safeguards and privileges; formal inquiry;
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| notification of the crime victim.
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| (a) A claim of torture may be referred to the Commission by
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| any court, person, or agency. The Commission shall not consider
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| a claim of torture if the convicted person is deceased. The
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| determination of whether to grant a formal inquiry regarding
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| any other claim of torture is in the discretion of the
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| Commission. The Commission may informally screen and dismiss a
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| case summarily at its discretion. |
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| (b) No formal inquiry into a claim of torture shall be made
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| by the Commission unless the Director or the Director's
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| designee first obtains a signed agreement from the convicted
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| person in which the convicted person waives his or her
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| procedural safeguards and privileges including but not limited |
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| to the right against self-incrimination under the United States |
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| Constitution and the Constitution of the State of Illinois, |
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| agrees to cooperate with
the Commission, and agrees to provide |
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| full disclosure regarding
Inquiry requirements of the |
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| Commission. The waiver under this
subsection does not apply to |
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| matters unrelated to a convicted
person's claim of torture. The |
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| convicted person shall have the
right to advice of counsel |
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| prior to the execution of the
agreement and, if a formal |
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| inquiry is granted, throughout the
formal inquiry. If counsel |
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| represents the convicted person,
then the convicted person's |
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| counsel must be present at the
signing of the agreement. If |
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| counsel does not represent the
convicted person, the Commission |
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| Chair shall determine the
convicted person's indigency status |
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| and, if appropriate, enter
an order for the appointment of |
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| counsel for the purpose of
advising on the agreement. |
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| (c) If a formal inquiry regarding a claim of torture is
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| granted, the Director shall use all due diligence to notify the
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| victim in the case and explain the inquiry process. The
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| Commission shall give the victim notice that the victim has the
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| right to present his or her views and concerns throughout the
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| Commission's investigation. |
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| (d) The Commission may use any measure provided in the Code
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| of Civil Procedure and the Code of Criminal Procedure of 1963
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| to obtain information necessary to its inquiry. The Commission
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| may also do any of the following: issue subpoenas or other |
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| process to compel the
attendance of witnesses and the |
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| production of evidence,
administer oaths, petition the Circuit |
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| Court of Cook County or
of the original jurisdiction for |
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| enforcement of process or for
other relief, and prescribe its |
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| own rules of procedure. All
challenges with regard to the |
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| Commission's authority or the
Commission's access to evidence |
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| shall be heard by the Circuit Court of Cook County, including
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| any in camera review.
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| (e) While performing duties for the Commission, the
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| Director or the Director's designee may serve subpoenas or
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| other process issued by the Commission throughout the State in
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| the same manner and with the same effect as an officer
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| authorized to serve process under the laws of this State.
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| (f) All State discovery and disclosure statutes in effect
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| at the time of formal inquiry shall be enforceable as if the
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| convicted person were currently being tried for the charge for
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| which the convicted person is claiming torture.
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| (g) If, at any point during an inquiry, the convicted
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| person refuses to comply with requests of the Commission or is
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| otherwise deemed to be uncooperative by the Commission, the
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| Commission shall discontinue the inquiry.
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| Section 45. Commission proceedings. |
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| (a) At the completion of a formal inquiry, all relevant
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| evidence shall be presented to the full Commission. As part of
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| its proceedings, the Commission may conduct hearings.
The |
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| determination as to whether to conduct hearings is
solely in |
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| the discretion of the Commission. Any hearing
held in |
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| accordance with this Section shall be a public hearing and |
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| shall be held subject to the
Commission's rules of operation, |
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| and
conducted pursuant to the Open Meetings Act. |
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| (b) The Director shall use all due diligence to notify the
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| victim at least 30 days prior to any proceedings of the full
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| Commission held in regard to the victim's case. The Commission
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| shall notify the victim that the victim is permitted to attend
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| proceedings otherwise closed to the public, subject to any
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| limitations imposed by this Act, and
subject to Section |
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| 2(c)(14) of the Open Meetings Act. If the victim plans to |
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| attend
proceedings otherwise closed to the public, the victim |
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| shall
notify the Commission at least 10 days in advance of the
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| proceedings of his or her intent to attend. The Commission may |
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| close any portion of the
proceedings to the victim, if the |
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| victim is to testify and the Commission determines that the |
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| victim's testimony would be materially affected if the victim |
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| hears other testimony at the proceeding. |
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| (c) After hearing the evidence, the full Commission shall
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| vote to establish further case disposition as provided by this
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| subsection. All 8 voting members of the Commission shall
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| participate in that vote.
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| If 5 or more of the 8 voting members of the Commission
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| conclude by a preponderance of the evidence that there is |
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| sufficient evidence of torture to merit
judicial review, the |
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| case shall be referred to the Chief Judge
of the Circuit Court |
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| of Cook County by filing with the clerk of
court the opinion of |
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| the Commission with supporting findings of
fact, as well as the |
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| record in support of such opinion, with
service on the State's |
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| Attorney in non-capital cases and
service on both the State's |
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| Attorney and Attorney General in
capital cases.
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| If less than 5 of the 8 voting members of the Commission
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| conclude by a preponderance of the evidence that there is |
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| sufficient evidence of torture to merit
judicial review, the |
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| Commission shall conclude there is
insufficient evidence of |
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| torture to merit judicial review. The
Commission shall document |
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| that opinion, along with supporting
findings of fact, and file |
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| those documents and supporting
materials with the court clerk |
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| in the circuit of original
jurisdiction, with a copy to the |
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| State's Attorney and the chief
judge.
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| The Director of the Commission shall use all due diligence
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| to notify immediately the victim of the Commission's conclusion
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| in a case. |
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| (d) Evidence of criminal acts, professional misconduct, or
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| other wrongdoing disclosed through formal inquiry or
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| Commission proceedings shall be referred to the appropriate
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| authority. Evidence favorable to the convicted person
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| disclosed through formal inquiry or Commission proceedings
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| shall be disclosed to the convicted person and the convicted
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| person's counsel, if the convicted person has counsel. The |
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| Commission shall have the discretion to refer its findings |
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| together with the supporting record and evidence, to such other |
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| parties or entities as the Commission in its discretion shall |
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| deem appropriate. |
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| (e) All proceedings of the Commission shall be recorded and
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| transcribed as part of the record. All Commission member votes
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| shall be recorded in the record. All records of
the Commission |
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| shall be confidential until the proceedings before the |
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| Commission are concluded and a final decision has been made by |
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| the Commission.
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| Section 50. Post-commission judicial review. |
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| (a) If the Commission concludes there is sufficient
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| evidence of torture to merit judicial review, the Chair of the
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| Commission shall request the Chief Judge of the Circuit Court
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| of Cook County for assignment to a trial judge for
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| consideration. The court may receive proof by affidavits,
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| depositions, oral testimony, or other evidence. In its
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| discretion the court may order the petitioner brought before
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| the court for the hearing. Notwithstanding the status of any |
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| other postconviction proceedings relating to the petitioner, |
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| if the court finds in favor of the
petitioner, it shall enter |
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| an appropriate order with respect to
the judgment or sentence |
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| in the former proceedings and such
supplementary orders as to |
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| rearraignment, retrial, custody,
bail or discharge, or for such |
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| relief as may be granted under a petition for a certificate of |
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| innocence, as may be necessary and proper. |
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| (b) The State's Attorney, or the State's Attorney's
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| designee, shall represent the State at the hearing before the
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| assigned judge.
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| Section 55. No right to further review of decision by
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| Commission; convicted person retains right to other
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| postconviction relief.
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| (a) Unless otherwise authorized by this Act, the decisions
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| of the Commission are final and are subject to review as final |
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| decisions under the provisions of the Administrative Review |
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| Law, and shall only be overturned if the court finds that they |
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| are against the manifest weight of the evidence. |
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| (b) A claim of torture asserted through the Commission
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| Shall not adversely affect the convicted person's rights to
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| other postconviction relief.
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| Section 60. Report. Beginning January 1, 2010, and annually
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| thereafter, the Illinois Torture Inquiry and Relief Commission
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| shall report on its activities to the General Assembly and the
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| Governor. The report may contain recommendations of any needed
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| legislative changes related to the activities of the
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| Commission. The report shall recommend the funding needed by
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| the Commission, the State's Attorneys, and the Department of
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| State Police in order to meet their responsibilities under this
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| Act. Recommendations concerning the State's Attorneys or the
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| Department of State Police shall only be made after
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| consultations with the Illinois State's Attorneys Association, |
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| the Department of State Police,
and the Attorney General.
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| Section 65. Appointment period. The initial members of the |
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| Illinois Torture
Inquiry and Relief Commission shall be |
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| appointed not later than
3 months after the effective date of |
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| this Act. No claims of torture may be filed with the
Commission |
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| until a quorum of members have been appointed.
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| Section 70. Filing of claims. This Act applies to claims of |
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| torture filed not later than 5 years after the effective date |
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| of this Act.
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| Section 99. Effective date. This Act takes effect upon |
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| becoming law.
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