Illinois Bar Journal

The Magazine of Illinois Lawyers

February 2017Volume 105Number 2Page 14

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LawPulse

ISBA-backed legislation would require notice of immigration consequences of guilty pleas

By
Matthew Hector

Other legislative proposals include altering the way life insurance proceeds are distributed to former spouses and increasing the credit defendants receive toward fines for time spent in jail.

The spring legislative session is ramping up - the ISBA has a new proposed legislation package to send to Springfield. Jim Covington, the ISBA's Director of Legislative Affairs, has provided the Journal with a round-up of the most interesting items on the agenda.

As a preliminary matter, although it has not yet been discussed in the statehouse, the ISBA remains opposed to any attempt to impose a tax on professional services. The Journal's coverage of that from February 2015 is at http://bit.ly/2jh7KPE. On the other hand, the ISBA continues to support the passage of a proposed collaborative process statute, which was covered in the December 2016 LawPulse (http://bit.ly/2iRbios). Here are three other proposals that are part of this year's legislative package.

Immigration consequences of guilty pleas. A proposed bill that is an initiative of the ISBA's International and Immigration Law Section Council would amend the Code of Criminal Procedure to improve compliance with a current law that requires judges to notify defendants of the immigration consequences of guilty pleas. The current law, 725 ILCS 5/113-8, requires judges to advise defendants that a misdemeanor or felony conviction may result in deportation, exclusion from admission to the United States, or denial of naturalization. However, since the law's adoption in 2004, it has been unevenly applied across Illinois courts.

In some cases, the required admonition is simply posted in courtrooms. In others, it may be contained in written agreements in court orders. It has not been uniformly given from the bench.

In 2009, the Supreme Court of Illinois found that the statute was directory, not mandatory. See People v. Del Villar. The court reasoned that because the law does not provide a consequence for non-compliance, it is not truly mandatory.

The proposed legislation will add a consequence for non-compliance to make the law mandatory under the Del Villar standard. A defendant who is not given the admonition and who would risk deportation, exclusion, or denial of naturalization as a result of a guilty plea would be entitled to move to vacate the judgment, withdraw the guilty plea, and instead enter a plea of not guilty.

Life insurance and divorce. Another proposal would address the treatment of life insurance policies in dissolution cases. It would amend the Illinois Marriage and Dissolution of Marriage Act to prohibit life insurance benefits from being paid to a former spouse after a judgment of dissolution or invalidity of marriage unless there is a specific reference to the policy in the judgment to the contrary.

This is an initiative of the ISBA Trusts and Estates Section Council, whose members find that this issue keeps surfacing in litigation. Florida enacted a similar (but much broader) law in 2012.

Sentencing proposals. The ISBA is also proposing changes to criminal sentencing. The Corrections and Sentencing Section Council has proposed a three-pronged bill.

First, the bill would increase the amount of credit a defendant receives towards fines for time spent in jail prior to sentencing. Currently, the credit accrues at $5 a day. The bill would increase it to $20 a day. The $5 credit has been unchanged since it was established in 1964. LawPulse covered this issue in October of 2015 (http://bit.ly/2j9dp88).

Second, the bill would require that pre-sentence investigations include the yearly cost of incarcerating a person. This would assist judges in considering the true financial impact of incarceration at sentencing, which is already required by 730 ILCS 5/5-4-1.

Finally, the bill would amend the first time offender statutes for cannabis, controlled substances, and methamphetamine as well as the supervision statute. As the law currently stands, offenders who successfully complete the terms of supervision should have their cases dismissed. Unfortunately, cases sometimes drift in limbo. This would ensure that at the conclusion of supervision a case would be dismissed if the defendant had successfully completed it.

The bill would require courts to set a date to determine whether an offender had complied with the terms and conditions of supervision and dismiss the case if so. But the hearing would not be a contested proceeding and the defendant would not need to appear.

Matthew Hector
Matthew Hector is a senior associate at Woerthwein & Miller.


February 2017 LawPulse