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| | 98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB3773 Introduced , by Rep. Michael J. Zalewski SYNOPSIS AS INTRODUCED:
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| 725 ILCS 5/110-2 | from Ch. 38, par. 110-2 | 725 ILCS 5/110-5 | from Ch. 38, par. 110-5 |
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Amends the Code of Criminal Procedure of 1963. Requires the court to release a defendant charged with possession of less than 1 gram of heroin, possession of less than 1 gram of cocaine, or possession of less than 10 grams of cannabis on his or own recognizance if certain criteria are met. If the release on own recognizance criteria are not met and the court finds that monetary bail is not necessary to secure the appearance of the defendant, the court may require the defendant's monitoring under electronic surveillance as a condition of his or her release.
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| | A BILL FOR |
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| | HB3773 | | LRB098 15189 MRW 50175 b |
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| 1 | | AN ACT concerning criminal law.
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| 2 | | Be it enacted by the People of the State of Illinois,
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| 3 | | represented in the General Assembly:
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| 4 | | Section 5. The Code of Criminal Procedure of 1963 is |
| 5 | | amended by changing Sections 110-2 and 110-5 as follows:
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| 6 | | (725 ILCS 5/110-2) (from Ch. 38, par. 110-2)
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| 7 | | Sec. 110-2. Release on own recognizance. |
| 8 | | (a) Except as provided in subsection (b), when When from |
| 9 | | all the circumstances the court is of the opinion that the
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| 10 | | defendant will appear as required either before or after
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| 11 | | conviction and the
defendant will not pose a danger to any |
| 12 | | person or the community
and that the
defendant will comply with |
| 13 | | all conditions of bond, which
shall include the defendant's |
| 14 | | current address with a written admonishment to
the defendant |
| 15 | | that he or she must comply with the provisions of Section |
| 16 | | 110-12
of this Code regarding any change in his or her address, |
| 17 | | the defendant may be released on his or her own recognizance. |
| 18 | | (b) When a defendant is charged with possession of less |
| 19 | | than 1 gram of heroin, possession of less than 1 gram of |
| 20 | | cocaine, or possession of less than 10 grams of cannabis, |
| 21 | | unless there is a reasonable belief that there is an urgent and |
| 22 | | immediate necessity for the defendant to be in custody, the |
| 23 | | court shall release the defendant on his or her own |
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| 1 | | recognizance if the court finds that the defendant: |
| 2 | | (1) is at least 18 years of age; |
| 3 | | (2) was not engaged in the commission of another |
| 4 | | offense other than possession of less than 1 gram of |
| 5 | | heroin, possession of less than 1 gram of cocaine, or |
| 6 | | possession of less than 10 grams of cannabis; |
| 7 | | (3) produced satisfactory evidence of his or her |
| 8 | | identity; |
| 9 | | (4) has not exhibited behavior which required the |
| 10 | | arresting officer, a correctional officer, or correctional |
| 11 | | employee to exert physical force to effectuate the arrest |
| 12 | | or control the defendant; |
| 13 | | (5) has not demonstrated behavior that would pose a |
| 14 | | danger to any person or the community; |
| 15 | | (6) has not been convicted or found guilty in any |
| 16 | | jurisdiction as an adult or juvenile for a violation |
| 17 | | involving the use or threat of physical force or violence; |
| 18 | | (7) is not the subject of a pending arrest warrant, |
| 19 | | prosecution, order of protection, or other criminal |
| 20 | | proceeding; and |
| 21 | | (8) will comply with all conditions of bond, which
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| 22 | | shall include the defendant's current address with a |
| 23 | | written admonishment to
the defendant that he or she must |
| 24 | | comply with the provisions of Section 110-12
of this Code |
| 25 | | regarding any change in his or her address. |
| 26 | | (c) The
defendant's address shall at all times remain a |
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| 1 | | matter of public record with
the clerk of the court. |
| 2 | | (d) A failure to appear as
required by the such |
| 3 | | recognizance shall constitute an offense subject to the
penalty |
| 4 | | provided in Section 32-10 of the Criminal Code of 2012 for |
| 5 | | violation of the
bail bond, and any obligated sum fixed in the |
| 6 | | recognizance shall be
forfeited and collected in accordance |
| 7 | | with subsection (g) of Section 110-7
of this Code.
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| 8 | | (e) This Section shall be liberally construed to effectuate |
| 9 | | the purpose of
relying upon contempt of court proceedings or |
| 10 | | criminal sanctions
instead of financial loss to assure the
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| 11 | | appearance of the defendant, and that the defendant will not |
| 12 | | pose a danger to
any person or the community and that the |
| 13 | | defendant will comply with all
conditions of bond. Monetary |
| 14 | | bail should be set only when it is
determined that no other |
| 15 | | conditions of release will reasonably assure the
defendant's |
| 16 | | appearance in court, that the defendant does not present a
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| 17 | | danger to any person or the community and that the defendant |
| 18 | | will comply
with all conditions of bond.
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| 19 | | (f) The State may appeal any order permitting release by |
| 20 | | personal recognizance.
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| 21 | | (Source: P.A. 97-1150, eff. 1-25-13.)
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| 22 | | (725 ILCS 5/110-5) (from Ch. 38, par. 110-5)
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| 23 | | Sec. 110-5. Determining the amount of bail and conditions |
| 24 | | of release.
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| 25 | | (a) In determining the amount of monetary bail or |
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| 1 | | conditions of release, if
any,
which will reasonably assure the |
| 2 | | appearance of a defendant as required or
the safety of any |
| 3 | | other person or the community and the likelihood of
compliance |
| 4 | | by the
defendant with all the conditions of bail, the court |
| 5 | | shall, on the
basis of available information, take into account |
| 6 | | such matters as the
nature and circumstances of the offense |
| 7 | | charged, whether the evidence
shows that as part of the offense |
| 8 | | there was a use of violence or threatened
use of violence, |
| 9 | | whether the offense involved corruption of public
officials or |
| 10 | | employees, whether there was physical harm or threats of |
| 11 | | physical
harm to any
public official, public employee, judge, |
| 12 | | prosecutor, juror or witness,
senior citizen, child or |
| 13 | | handicapped person, whether evidence shows that
during the |
| 14 | | offense or during the arrest the defendant possessed or used a
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| 15 | | firearm, machine gun, explosive or metal piercing ammunition or |
| 16 | | explosive
bomb device or any military or paramilitary armament,
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| 17 | | whether the evidence
shows that the offense committed was |
| 18 | | related to or in furtherance of the
criminal activities of an |
| 19 | | organized gang or was motivated by the defendant's
membership |
| 20 | | in or allegiance to an organized gang,
the condition of the
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| 21 | | victim, any written statement submitted by the victim or |
| 22 | | proffer or
representation by the State regarding the
impact |
| 23 | | which the alleged criminal conduct has had on the victim and |
| 24 | | the
victim's concern, if any, with further contact with the |
| 25 | | defendant if
released on bail, whether the offense was based on |
| 26 | | racial, religious,
sexual orientation or ethnic hatred,
the |
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| 1 | | likelihood of the filing of a greater charge, the likelihood of
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| 2 | | conviction, the sentence applicable upon conviction, the |
| 3 | | weight of the evidence
against such defendant, whether there |
| 4 | | exists motivation or ability to
flee, whether there is any |
| 5 | | verification as to prior residence, education,
or family ties |
| 6 | | in the local jurisdiction, in another county,
state or foreign |
| 7 | | country, the defendant's employment, financial resources,
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| 8 | | character and mental condition, past conduct, prior use of |
| 9 | | alias names or
dates of birth, and length of residence in the |
| 10 | | community,
the consent of the defendant to periodic drug |
| 11 | | testing in accordance with
Section 110-6.5,
whether a foreign |
| 12 | | national defendant is lawfully admitted in the United
States of |
| 13 | | America, whether the government of the foreign national
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| 14 | | maintains an extradition treaty with the United States by which |
| 15 | | the foreign
government will extradite to the United States its |
| 16 | | national for a trial for
a crime allegedly committed in the |
| 17 | | United States, whether the defendant is
currently subject to |
| 18 | | deportation or exclusion under the immigration laws of
the |
| 19 | | United States, whether the defendant, although a United States |
| 20 | | citizen,
is considered under the law of any foreign state a |
| 21 | | national of that state
for the purposes of extradition or |
| 22 | | non-extradition to the United States,
the amount of unrecovered |
| 23 | | proceeds lost as a result of
the alleged offense, the
source of |
| 24 | | bail funds tendered or sought to be tendered for bail,
whether |
| 25 | | from the totality of the court's consideration,
the loss of |
| 26 | | funds posted or sought to be posted for bail will not deter the
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| 1 | | defendant from flight, whether the evidence shows that the |
| 2 | | defendant is
engaged in significant
possession, manufacture, |
| 3 | | or delivery of a controlled substance or cannabis,
either |
| 4 | | individually or in consort with others,
whether at the time of |
| 5 | | the offense
charged he or she was on bond or pre-trial release |
| 6 | | pending trial, probation,
periodic imprisonment or conditional |
| 7 | | discharge pursuant to this Code or the
comparable Code of any |
| 8 | | other state or federal jurisdiction, whether the
defendant is |
| 9 | | on bond or
pre-trial release pending the imposition or |
| 10 | | execution of sentence or appeal of
sentence for any offense |
| 11 | | under the laws of Illinois or any other state or
federal |
| 12 | | jurisdiction, whether the defendant is under parole, aftercare |
| 13 | | release, mandatory
supervised release, or
work release from the |
| 14 | | Illinois Department of Corrections or Illinois Department of |
| 15 | | Juvenile Justice or any penal
institution or corrections |
| 16 | | department of any state or federal
jurisdiction, the |
| 17 | | defendant's record of convictions, whether the defendant has |
| 18 | | been
convicted of a misdemeanor or ordinance offense in |
| 19 | | Illinois or similar
offense in other state or federal |
| 20 | | jurisdiction within the 10 years
preceding the current charge |
| 21 | | or convicted of a felony in Illinois, whether
the defendant was |
| 22 | | convicted of an offense in another state or federal
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| 23 | | jurisdiction that would
be a felony if committed in Illinois |
| 24 | | within the 20 years preceding the
current charge or has been |
| 25 | | convicted of such felony and released from the
penitentiary |
| 26 | | within 20 years preceding the current charge if a
penitentiary |
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| 1 | | sentence was imposed in Illinois or other state or federal
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| 2 | | jurisdiction, the defendant's records of juvenile adjudication |
| 3 | | of delinquency in any
jurisdiction, any record of appearance or |
| 4 | | failure to appear by
the defendant at
court proceedings, |
| 5 | | whether there was flight to avoid arrest or
prosecution, |
| 6 | | whether the defendant escaped or
attempted to escape to avoid |
| 7 | | arrest, whether the defendant refused to
identify himself or |
| 8 | | herself, or whether there was a refusal by the defendant to be
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| 9 | | fingerprinted as required by law. Information used by the court |
| 10 | | in its
findings or stated in or
offered in connection with this |
| 11 | | Section may be by way of proffer based upon
reliable |
| 12 | | information offered by the State or defendant.
All evidence |
| 13 | | shall be admissible if it is relevant and
reliable regardless |
| 14 | | of whether it would be admissible under the rules of
evidence |
| 15 | | applicable at criminal trials.
If the State presents evidence |
| 16 | | that the offense committed by the defendant
was related to or |
| 17 | | in furtherance of the criminal activities of an organized
gang |
| 18 | | or was motivated by the defendant's membership in or allegiance |
| 19 | | to an
organized gang, and if the court determines that the |
| 20 | | evidence may be
substantiated, the court shall prohibit the |
| 21 | | defendant from associating with
other members of the organized |
| 22 | | gang as a condition of bail or release.
For the purposes of |
| 23 | | this Section,
"organized gang" has the meaning ascribed to it |
| 24 | | in Section 10 of the Illinois
Streetgang Terrorism Omnibus |
| 25 | | Prevention Act.
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| 26 | | (a-5) When a defendant is charged with possession of less |
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| 1 | | than 1 gram of heroin, possession of less than 1 gram of |
| 2 | | cocaine, or possession of less than 10 grams of cannabis, if |
| 3 | | the court finds that the defendant does not meet the |
| 4 | | requirements for release on own recognizance under subsection |
| 5 | | (b) of Section 110-2 of this Code and that monetary bail is not |
| 6 | | necessary to secure the appearance of the defendant, the court |
| 7 | | may place the defendant on electronic monitoring as a condition |
| 8 | | of his or her release under paragraph (14) of subsection (b) of |
| 9 | | Section 110-10 of this Code. |
| 10 | | (b) The amount of bail shall be:
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| 11 | | (1) Sufficient to assure compliance with the |
| 12 | | conditions set forth in the
bail bond, which shall include |
| 13 | | the defendant's current address with a written
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| 14 | | admonishment to the defendant that he or she must comply |
| 15 | | with the provisions of
Section 110-12 regarding any change |
| 16 | | in his or her address. The defendant's
address shall at all |
| 17 | | times remain a matter of public record with the clerk
of |
| 18 | | the court.
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| 19 | | (2) Not oppressive.
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| 20 | | (3) Considerate of the financial ability of the |
| 21 | | accused.
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| 22 | | (4) When a person is charged with a drug related |
| 23 | | offense involving
possession or delivery of cannabis or |
| 24 | | possession or delivery of a
controlled substance as defined |
| 25 | | in the Cannabis Control Act,
the Illinois Controlled |
| 26 | | Substances Act, or the Methamphetamine Control and |
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| 1 | | Community Protection Act, the full street value
of the |
| 2 | | drugs seized shall be considered. "Street value" shall be
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| 3 | | determined by the court on the basis of a proffer by the |
| 4 | | State based upon
reliable information of a law enforcement |
| 5 | | official contained in a written
report as to the amount |
| 6 | | seized and such proffer may be used by the court as
to the |
| 7 | | current street value of the smallest unit of the drug |
| 8 | | seized.
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| 9 | | (b-5) Upon the filing of a written request demonstrating |
| 10 | | reasonable cause, the State's Attorney may request a source of |
| 11 | | bail hearing either before or after the posting of any funds.
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| 12 | | If the hearing is granted, before the posting of any bail, the |
| 13 | | accused must file a written notice requesting that the court |
| 14 | | conduct a source of bail hearing. The notice must be |
| 15 | | accompanied by justifying affidavits stating the legitimate |
| 16 | | and lawful source of funds for bail. At the hearing, the court |
| 17 | | shall inquire into any matters stated in any justifying |
| 18 | | affidavits, and may also inquire into matters appropriate to |
| 19 | | the determination which shall include, but are not limited to, |
| 20 | | the following: |
| 21 | | (1) the background, character, reputation, and |
| 22 | | relationship to the accused of any surety; and |
| 23 | | (2) the source of any money or property deposited by |
| 24 | | any surety, and whether any such money or property |
| 25 | | constitutes the fruits of criminal or unlawful conduct; and |
| 26 | | (3) the source of any money posted as cash bail, and |
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| 1 | | whether any such money constitutes the fruits of criminal |
| 2 | | or unlawful conduct; and |
| 3 | | (4) the background, character, reputation, and |
| 4 | | relationship to the accused of the person posting cash |
| 5 | | bail. |
| 6 | | Upon setting the hearing, the court shall examine, under |
| 7 | | oath, any persons who may possess material information. |
| 8 | | The State's Attorney has a right to attend the hearing, to |
| 9 | | call witnesses and to examine any witness in the proceeding. |
| 10 | | The court shall, upon request of the State's Attorney, continue |
| 11 | | the proceedings for a reasonable period to allow the State's |
| 12 | | Attorney to investigate the matter raised in any testimony or |
| 13 | | affidavit.
If the hearing is granted after the accused has |
| 14 | | posted bail, the court shall conduct a hearing consistent with |
| 15 | | this subsection (b-5). At the conclusion of the hearing, the |
| 16 | | court must issue an order either approving of disapproving the |
| 17 | | bail.
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| 18 | | (c) When a person is charged with an offense punishable by |
| 19 | | fine only the
amount of the bail shall not exceed double the |
| 20 | | amount of the maximum penalty.
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| 21 | | (d) When a person has been convicted of an offense and only |
| 22 | | a fine has
been imposed the amount of the bail shall not exceed |
| 23 | | double the amount of
the fine.
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| 24 | | (e) The State may appeal any order granting bail or setting
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| 25 | | a given amount for bail. |
| 26 | | (f) When a person is charged with a violation of an order |
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| 1 | | of protection under Section 12-3.4 or 12-30 of the Criminal |
| 2 | | Code of 1961 or the Criminal Code of 2012, |
| 3 | | (1) whether the alleged incident involved harassment |
| 4 | | or abuse, as defined in the Illinois Domestic Violence Act |
| 5 | | of 1986; |
| 6 | | (2) whether the person has a history of domestic |
| 7 | | violence, as defined in the Illinois Domestic Violence Act, |
| 8 | | or a history of other criminal acts; |
| 9 | | (3) based on the mental health of the person; |
| 10 | | (4) whether the person has a history of violating the |
| 11 | | orders of any court or governmental entity; |
| 12 | | (5) whether the person has been, or is, potentially a |
| 13 | | threat to any other person; |
| 14 | | (6) whether the person has access to deadly weapons or |
| 15 | | a history of using deadly weapons; |
| 16 | | (7) whether the person has a history of abusing alcohol |
| 17 | | or any controlled substance; |
| 18 | | (8) based on the severity of the alleged incident that |
| 19 | | is the basis of the alleged offense, including, but not |
| 20 | | limited to, the duration of the current incident, and |
| 21 | | whether the alleged incident involved physical injury, |
| 22 | | sexual assault, strangulation, abuse during the alleged |
| 23 | | victim's pregnancy, abuse of pets, or forcible entry to |
| 24 | | gain access to the alleged victim; |
| 25 | | (9) whether a separation of the person from the alleged |
| 26 | | victim or a termination of the relationship between the |
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| 1 | | person and the alleged victim has recently occurred or is |
| 2 | | pending; |
| 3 | | (10) whether the person has exhibited obsessive or |
| 4 | | controlling behaviors toward the alleged victim, |
| 5 | | including, but not limited to, stalking, surveillance, or |
| 6 | | isolation of the alleged victim or victim's family member |
| 7 | | or members; |
| 8 | | (11) whether the person has expressed suicidal or |
| 9 | | homicidal ideations; |
| 10 | | (12) based on any information contained in the |
| 11 | | complaint and any police reports, affidavits, or other |
| 12 | | documents accompanying the complaint, |
| 13 | | the court may, in its discretion, order the respondent to |
| 14 | | undergo a risk assessment evaluation conducted by an Illinois |
| 15 | | Department of Human Services approved partner abuse |
| 16 | | intervention program provider, pretrial service, probation, or |
| 17 | | parole agency. These agencies shall have access to summaries of |
| 18 | | the defendant's criminal history, which shall not include |
| 19 | | victim interviews or information, for the risk evaluation. |
| 20 | | Based on the information collected from the 12 points to be |
| 21 | | considered at a bail hearing for a violation of an order of |
| 22 | | protection, the results of any risk evaluation conducted and |
| 23 | | the other circumstances of the violation, the court may order |
| 24 | | that the person, as a condition of bail, be placed under |
| 25 | | electronic surveillance as provided in Section 5-8A-7 of the |
| 26 | | Unified Code of Corrections.
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