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The Public Servant
The newsletter of the ISBA’s Standing Committee on Government Lawyers

April 2016, vol. 17, no. 3

Juvenile offenders in the adult system—How Public Act 99-258 changed when minors are prosecuted under the criminal laws of Illinois

Did you know that prior to 2010, one was considered an adult at the age of 17 for purposes of criminal proceedings? It was not until 2014 that the age was raised to 18 for all offenses. More precisely, between 2010 and 2014, whether one was considered an adult at 17 or 18 for purpose of criminal proceedings depended on the class of offense with which the person was charged.1

On August 4, 2015, the governor approved House Bill 3718, which as enacted became Public Act 99-258, effective January 1, 2016. Public Act 99-258 further changed when an offense committed by a minor may be prosecuted under the criminal laws of Illinois.

Introduction

Anyone under 18 years of age, who violates any federal, state, county or municipal law or ordinance may be proceeded against under the Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq.). And, no one under 18 years of age may be prosecuted under Illinois’ criminal laws except pursuant to provisions of concurrent jurisdiction, excluded jurisdiction, transfer of jurisdiction, or extended jurisdiction juvenile prosecutions.2 Let us look at each provision in turn as it existed prior to, and the changes that were made by, Public Act 99-258.

Concurrent Jurisdiction (705 ILCS 405/5-125)

Under concurrent jurisdiction, both the juvenile court and the criminal court have jurisdiction over persons under 18 years of age for violations of any:

• Traffic law (defined to include reckless homicide and driving under the influence);

• Boating law;

• Fish and game law; or

• County or municipal ordinance.

No change was made by Public Act 99-258 to the concurrent jurisdiction provisions of section 5-125 of the Juvenile Court Act of 1987 (705 ILCS 405/5-125).

Excluded Jurisdiction (705 ILCS 405/5-130)

Prior to the enactment of Public Act 99-258, persons 15 years of age or older were excluded from the jurisdiction of the juvenile court for the following offenses:

• First degree murder;

• Aggravated criminal sexual assault;

Aggravated battery with a firearm3;

• Armed robbery with a firearm;

• Aggravated vehicular hijacking with a firearm; and

• Certain unlawful use of weapons offenses committed on school property.4

Further, first degree murder committed during aggravated criminal sexual assault, criminal sexual assault, or aggravated kidnaping by those 13 years or older were prosecuted in criminal court. The first degree murder charge could not be based on accountability.

Persons under 18 who committed escape5 or violation of bail bond6 while being prosecuted as an adult per concurrent or excluded jurisdiction for first degree murder, aggravated criminal sexual assault, aggravated battery with a firearm7 or armed robbery with a firearm were not eligible for proceedings in juvenile court.

Public Act 99-258 raised the age to 16 from 15 for those excluded from the jurisdiction of the juvenile court for the offenses of first degree murder, aggravated criminal sexual assault, and aggravated battery with a firearm.8 The Public Act also removed all other previously excluded offenses.

Prior to the enactment of Public Act 99-258, once one was prosecuted and convicted as an adult pursuant to a mandatory or discretionary transfer or extended jurisdiction juvenile prosecutions (each discussed below), any subsequent offenses were ineligible for proceedings in juvenile court regardless of the age of the offender. This portion of the excluded jurisdiction section is no longer in effect per Public Act 99-258.

Transfer of Jurisdiction (705 ILCS 405/5-805)

There were three types of transfers: mandatory; presumptive; and discretionary. Public Act 99-258 eliminated mandatory transfers altogether and significantly changed presumptive transfers.

Mandatory Transfers

Mandatory transfers to adult court occurred upon motion of the State’s Attorney and a finding of probable cause that the offender committed a forcible felony9 in furtherance of criminal gang activity and had a prior adjudication or conviction for a non-forcible felony, or that the offender committed a non-forcible felony in furtherance of criminal gang activity and had a prior adjudication or conviction for a forcible felony. Further, offenses enumerated in the presumptive transfer provisions committed by persons with a prior adjudication or conviction for a forcible felony and aggravated discharge of a firearm committed within 1000 feet of school property, at a school related activity, or while on, boarding, or departing any conveyance used to transport students to and from school or school related activities were transferred in the same manner. The minimum age for mandatory transfers was 15.

Presumptive Transfers

With regard to presumptive transfers, a probable cause determination as to the State’s Attorney’s petition alleging commission of certain crimes by persons 15 years of age and over creates a presumption that the case may be transferred to criminal court. This presumption may be rebutted by clear and convincing evidence based on an evaluation of statutory factors that “the minor would be amenable to the care, treatment, and training programs available through the facilities of the juvenile court.”10

Public Act 99-258 eliminated the enumerated list of offenses previously subject to presumptive transfer.11 As of January 1, 2016, only forcible felonies committed in furtherance of illegal gang activity by one 15 years of age or older with a prior adjudication or conviction for a forcible felony may be presumptively transferred.

Discretionary Transfers

Unlike the first two types of transfers, discretionary transfers remain the same. The State’s Attorney may petition the juvenile court to allow prosecution in criminal court for violations of state criminal law by a person 13 years of age and over. The court must find, after considering a number of factors, that “it is not in the best interests of the public” to proceed in juvenile court.12

Extended Jurisdiction Juvenile Prosecutions (705 ILCS 405/5-810)

The State’s Attorney may file a petition to have a case designated as an extended jurisdiction juvenile prosecution for a felony offense committed by a person 13 years of age or older. A finding of probable cause to believe the allegations in the petition are true creates a rebuttable presumption that the case be so designated. This presumption will be overcome by clear and convincing evidence, based upon examination of the listed factors, that a sentence under the criminal sentencing statutes is inappropriate for the minor.

An extended jurisdiction juvenile prosecution case remains in juvenile court. However, at sentencing, the court imposes a juvenile sentence as well as an adult criminal sentence. The adult sentence will not be imposed, absent a violation of the juvenile sentence, and will be vacated upon successful completion of the juvenile sentence.

Public Act 99-258 did not change how cases are designated under this section of the Juvenile Court Act.

Summary

As of January 1, 2016, there are no mandatory transfers, and no offenses are excluded from the jurisdiction of the juvenile court for anyone under 16 years of age. For those who are at least 16 years old, only first degree murder, aggravated criminal sexual assault, and aggravated battery with a firearm13 are excluded from the juvenile court’s jurisdiction. Further, presumptive transfers are only available for forcible felonies committed in furtherance of illegal gang activity by those 15 years or older with a prior adjudication or conviction for a forcible felony. Last, the processes for discretionary transfers and extended jurisdiction juvenile prosecutions remain the same.

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1. Prior to January 1, 2010, only persons under 17 years of age were eligible for proceedings under the Juvenile Court Act, subject to exceptions discussed in this article. Persons under 18 years of age became eligible for proceedings under the Juvenile Court Act for misdemeanor offenses committed on or after January 1, 2010, and for felony offenses committed on or after January 1, 2014. See Public Act 95-1031, effective February 10, 2009; Public Act 98-61, effective January 1, 2014.

2. 705 ILCS 405/5-120.

3. The person being prosecuted must have personally discharged the firearm. Also, generally speaking, it does not include aggravated battery with a machine gun or firearm equipped with a silencer. See 705 ILCS 405/5-130(1)(a); 720 ILCS 5/12-3.05(e)(1)-(4).

4. Subsections (1), (3), (4) and (10) of 720 ILCS 5/24-1 only.

5. 720 ILCS 5/31-6.

6. 720 ILCS 5/32-10.

7. See footnote 3 supra.

8. See footnote 3 supra.

9. “Forcible felony” is defined in 720 ILCS 5/2-8 as “treason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnapping, kidnapping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement and any other felony which involves the use or threat of physical force or violence against any individual.”

10. 705 ILCS 405/5-805(2)(b).

11. Prior to Public Act 99-258, the offenses for presumptive transfer included: Class X felonies (but only under specified circumstances if the Class X felony was armed violence); aggravated discharge of a firearm; and select drug offenses. See 705 ILCS 405/5-805(2) (West 2012).

12. 705 ILCS 405/5-805(3).

13. See footnote 3 supra.