98TH GENERAL ASSEMBLY State of Illinois 2013 and 2014 HB3744

Introduced , by Rep. Barbara Wheeler

SYNOPSIS AS INTRODUCED:

725 ILCS 5/110-5 from Ch. 38, par. 110-5

Amends the Code of Criminal Procedure of 1963. Provides that when a person is charged with felony domestic battery, aggravated domestic battery, aggravated battery, kidnapping, aggravated kidnaping, unlawful restraint, aggravated unlawful restraint, or an attempt to commit first degree murder regardless whether an order of protection has been issued against the person, the court may, in its discretion, order the respondent to undergo a risk assessment evaluation conducted by an Illinois Department of Human Services approved partner abuse intervention program provider, pretrial service, probation, or parole agency. Provides that based on the information collected from specified factors to be considered at a bail hearing for these offenses, the results of any risk evaluation conducted and the other circumstances of the violation, the court may order that the person, as a condition of bail, be placed under electronic surveillance as provided in the Unified Code of Corrections. Provides that upon making a determination whether or not to order the respondent to undergo a risk assessment evaluation or to be placed under electronic surveillance, the court shall document in the record the court's reasons for making those determinations. Provides that the cost of the electronic surveillance shall be paid from the bail moneys deposited by, or on behalf, of the defendant.

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A BILL FOR

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1 AN ACT concerning criminal law.

2 Be it enacted by the People of the State of Illinois,

3 represented in the General Assembly:

4 Section 5. The Code of Criminal Procedure of 1963 is

5 amended by changing Section 110-5 as follows:

6 (725 ILCS 5/110-5) (from Ch. 38, par. 110-5)

7 Sec. 110-5. Determining the amount of bail and conditions

8 of release.

9 (a) In determining the amount of monetary bail or

10 conditions of release, if any, which will reasonably assure the

11 appearance of a defendant as required or the safety of any

12 other person or the community and the likelihood of compliance

13 by the defendant with all the conditions of bail, the court

14 shall, on the basis of available information, take into account

15 such matters as the nature and circumstances of the offense

16 charged, whether the evidence shows that as part of the offense

17 there was a use of violence or threatened use of violence,

18 whether the offense involved corruption of public officials or

19 employees, whether there was physical harm or threats of

20 physical harm to any public official, public employee, judge,

21 prosecutor, juror or witness, senior citizen, child or

22 handicapped person, whether evidence shows that during the

23 offense or during the arrest the defendant possessed or used a

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1 firearm, machine gun, explosive or metal piercing ammunition or

2 explosive bomb device or any military or paramilitary armament,

3 whether the evidence shows that the offense committed was

4 related to or in furtherance of the criminal activities of an

5 organized gang or was motivated by the defendant's membership

6 in or allegiance to an organized gang, the condition of the

7 victim, any written statement submitted by the victim or

8 proffer or representation by the State regarding the impact

9 which the alleged criminal conduct has had on the victim and

10 the victim's concern, if any, with further contact with the

11 defendant if released on bail, whether the offense was based on

12 racial, religious, sexual orientation or ethnic hatred, the

13 likelihood of the filing of a greater charge, the likelihood of

14 conviction, the sentence applicable upon conviction, the

15 weight of the evidence against such defendant, whether there

16 exists motivation or ability to flee, whether there is any

17 verification as to prior residence, education, or family ties

18 in the local jurisdiction, in another county, state or foreign

19 country, the defendant's employment, financial resources,

20 character and mental condition, past conduct, prior use of

21 alias names or dates of birth, and length of residence in the

22 community, the consent of the defendant to periodic drug

23 testing in accordance with Section 110-6.5, whether a foreign

24 national defendant is lawfully admitted in the United States of

25 America, whether the government of the foreign national

26 maintains an extradition treaty with the United States by which

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1 the foreign government will extradite to the United States its

2 national for a trial for a crime allegedly committed in the

3 United States, whether the defendant is currently subject to

4 deportation or exclusion under the immigration laws of the

5 United States, whether the defendant, although a United States

6 citizen, is considered under the law of any foreign state a

7 national of that state for the purposes of extradition or

8 non-extradition to the United States, the amount of unrecovered

9 proceeds lost as a result of the alleged offense, the source of

10 bail funds tendered or sought to be tendered for bail, whether

11 from the totality of the court's consideration, the loss of

12 funds posted or sought to be posted for bail will not deter the

13 defendant from flight, whether the evidence shows that the

14 defendant is engaged in significant possession, manufacture,

15 or delivery of a controlled substance or cannabis, either

16 individually or in consort with others, whether at the time of

17 the offense charged he or she was on bond or pre-trial release

18 pending trial, probation, periodic imprisonment or conditional

19 discharge pursuant to this Code or the comparable Code of any

20 other state or federal jurisdiction, whether the defendant is

21 on bond or pre-trial release pending the imposition or

22 execution of sentence or appeal of sentence for any offense

23 under the laws of Illinois or any other state or federal

24 jurisdiction, whether the defendant is under parole, aftercare

25 release, mandatory supervised release, or work release from the

26 Illinois Department of Corrections or Illinois Department of

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1 Juvenile Justice or any penal institution or corrections

2 department of any state or federal jurisdiction, the

3 defendant's record of convictions, whether the defendant has

4 been convicted of a misdemeanor or ordinance offense in

5 Illinois or similar offense in other state or federal

6 jurisdiction within the 10 years preceding the current charge

7 or convicted of a felony in Illinois, whether the defendant was

8 convicted of an offense in another state or federal

9 jurisdiction that would be a felony if committed in Illinois

10 within the 20 years preceding the current charge or has been

11 convicted of such felony and released from the penitentiary

12 within 20 years preceding the current charge if a penitentiary

13 sentence was imposed in Illinois or other state or federal

14 jurisdiction, the defendant's records of juvenile adjudication

15 of delinquency in any jurisdiction, any record of appearance or

16 failure to appear by the defendant at court proceedings,

17 whether there was flight to avoid arrest or prosecution,

18 whether the defendant escaped or attempted to escape to avoid

19 arrest, whether the defendant refused to identify himself or

20 herself, or whether there was a refusal by the defendant to be

21 fingerprinted as required by law. Information used by the court

22 in its findings or stated in or offered in connection with this

23 Section may be by way of proffer based upon reliable

24 information offered by the State or defendant. All evidence

25 shall be admissible if it is relevant and reliable regardless

26 of whether it would be admissible under the rules of evidence

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1 applicable at criminal trials. If the State presents evidence

2 that the offense committed by the defendant was related to or

3 in furtherance of the criminal activities of an organized gang

4 or was motivated by the defendant's membership in or allegiance

5 to an organized gang, and if the court determines that the

6 evidence may be substantiated, the court shall prohibit the

7 defendant from associating with other members of the organized

8 gang as a condition of bail or release. For the purposes of

9 this Section, "organized gang" has the meaning ascribed to it

10 in Section 10 of the Illinois Streetgang Terrorism Omnibus

11 Prevention Act.

12 (b) The amount of bail shall be:

13 (1) Sufficient to assure compliance with the

14 conditions set forth in the bail bond, which shall include

15 the defendant's current address with a written

16 admonishment to the defendant that he or she must comply

17 with the provisions of Section 110-12 regarding any change

18 in his or her address. The defendant's address shall at all

19 times remain a matter of public record with the clerk of

20 the court.

21 (2) Not oppressive.

22 (3) Considerate of the financial ability of the

23 accused.

24 (4) When a person is charged with a drug related

25 offense involving possession or delivery of cannabis or

26 possession or delivery of a controlled substance as defined

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1 in the Cannabis Control Act, the Illinois Controlled

2 Substances Act, or the Methamphetamine Control and

3 Community Protection Act, the full street value of the

4 drugs seized shall be considered. "Street value" shall be

5 determined by the court on the basis of a proffer by the

6 State based upon reliable information of a law enforcement

7 official contained in a written report as to the amount

8 seized and such proffer may be used by the court as to the

9 current street value of the smallest unit of the drug

10 seized.

11 (b-5) Upon the filing of a written request demonstrating

12 reasonable cause, the State's Attorney may request a source of

13 bail hearing either before or after the posting of any funds.

14 If the hearing is granted, before the posting of any bail, the

15 accused must file a written notice requesting that the court

16 conduct a source of bail hearing. The notice must be

17 accompanied by justifying affidavits stating the legitimate

18 and lawful source of funds for bail. At the hearing, the court

19 shall inquire into any matters stated in any justifying

20 affidavits, and may also inquire into matters appropriate to

21 the determination which shall include, but are not limited to,

22 the following:

23 (1) the background, character, reputation, and

24 relationship to the accused of any surety; and

25 (2) the source of any money or property deposited by

26 any surety, and whether any such money or property

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1 constitutes the fruits of criminal or unlawful conduct; and

2 (3) the source of any money posted as cash bail, and

3 whether any such money constitutes the fruits of criminal

4 or unlawful conduct; and

5 (4) the background, character, reputation, and

6 relationship to the accused of the person posting cash

7 bail.

8 Upon setting the hearing, the court shall examine, under

9 oath, any persons who may possess material information.

10 The State's Attorney has a right to attend the hearing, to

11 call witnesses and to examine any witness in the proceeding.

12 The court shall, upon request of the State's Attorney, continue

13 the proceedings for a reasonable period to allow the State's

14 Attorney to investigate the matter raised in any testimony or

15 affidavit. If the hearing is granted after the accused has

16 posted bail, the court shall conduct a hearing consistent with

17 this subsection (b-5). At the conclusion of the hearing, the

18 court must issue an order either approving of disapproving the

19 bail.

20 (c) When a person is charged with an offense punishable by

21 fine only the amount of the bail shall not exceed double the

22 amount of the maximum penalty.

23 (d) When a person has been convicted of an offense and only

24 a fine has been imposed the amount of the bail shall not exceed

25 double the amount of the fine.

26 (e) The State may appeal any order granting bail or setting

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1 a given amount for bail.

2 (f) When a person is charged with a violation of an order

3 of protection under Section 12-3.4 or 12-30 of the Criminal

4 Code of 1961 or the Criminal Code of 2012 or when a person is

5 charged with felony domestic battery, aggravated domestic

6 battery, aggravated battery, kidnapping, aggravated kidnaping,

7 unlawful restraint, aggravated unlawful restraint, or an

8 attempt to commit first degree murder regardless whether an

9 order of protection has been issued against the person,

10 (1) whether the alleged incident involved harassment

11 or abuse, as defined in the Illinois Domestic Violence Act

12 of 1986;

13 (2) whether the person has a history of domestic

14 violence, as defined in the Illinois Domestic Violence Act,

15 or a history of other criminal acts;

16 (3) based on the mental health of the person;

17 (4) whether the person has a history of violating the

18 orders of any court or governmental entity;

19 (5) whether the person has been, or is, potentially a

20 threat to any other person;

21 (6) whether the person has access to deadly weapons or

22 a history of using deadly weapons;

23 (7) whether the person has a history of abusing alcohol

24 or any controlled substance;

25 (8) based on the severity of the alleged incident that

26 is the basis of the alleged offense, including, but not

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1 limited to, the duration of the current incident, and

2 whether the alleged incident involved the use of a weapon,

3 physical injury, sexual assault, strangulation, abuse

4 during the alleged victim's pregnancy, abuse of pets, or

5 forcible entry to gain access to the alleged victim;

6 (9) whether a separation of the person from the alleged

7 victim or a termination of the relationship between the

8 person and the alleged victim has recently occurred or is

9 pending;

10 (10) whether the person has exhibited obsessive or

11 controlling behaviors toward the alleged victim,

12 including, but not limited to, stalking, surveillance, or

13 isolation of the alleged victim or victim's family member

14 or members;

15 (11) whether the person has expressed suicidal or

16 homicidal ideations;

17 (12) based on any information contained in the

18 complaint and any police reports, affidavits, or other

19 documents accompanying the complaint,

20 the court may, in its discretion, order the respondent to

21 undergo a risk assessment evaluation conducted by an Illinois

22 Department of Human Services approved partner abuse

23 intervention program provider, pretrial service, probation, or

24 parole agency. These agencies shall have access to summaries of

25 the defendant's criminal history, which shall not include

26 victim interviews or information, for the risk evaluation.

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1 Based on the information collected from the 12 points to be

2 considered at a bail hearing under this subsection (f) ~~for a~~

3 ~~violation of an order of protection~~, the results of any risk

4 evaluation conducted and the other circumstances of the

5 violation, the court may order that the person, as a condition

6 of bail, be placed under electronic surveillance as provided in

7 Section 5-8A-7 of the Unified Code of Corrections. Upon making

8 a determination whether or not to order the respondent to

9 undergo a risk assessment evaluation or to be placed under

10 electronic surveillance, the court shall document in the record

11 the court's reasons for making those determinations. The cost

12 of the electronic surveillance shall be paid from the bail

13 moneys deposited by, or on behalf, of the defendant.

14 (Source: P.A. 97-1150, eff. 1-25-13; 98-558, eff. 1-1-14.)