Rep. Monique D. Davis
Filed: 4/7/2014
 
 


 




09800HB4097ham001LRB098 15655 RLC 58371 a



1
AMENDMENT TO HOUSE BILL 4097




2 AMENDMENT NO. ______. Amend House Bill 4097 by replacing 
3everything after the enacting clause with the following:


4 "Section 5. The Code of Criminal Procedure of 1963 is 
5amended 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 
8of release. 

9 (a) In determining the amount of monetary bail or 
10conditions of release, if
any,
which will reasonably assure the 
11appearance of a defendant as required or
the safety of any 
12other person or the community and the likelihood of
compliance 
13by the
defendant with all the conditions of bail, the court 
14shall, on the
basis of available information, take into account 
15such matters as the
nature and circumstances of the offense 
16charged, whether the evidence
shows that as part of the offense 
 
 
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1there was a use of violence or threatened
use of violence, 
2whether the offense involved corruption of public
officials or 
3employees, whether there was physical harm or threats of 
4physical
harm to any
public official, public employee, judge, 
5prosecutor, juror or witness,
senior citizen, child or 
6handicapped person, whether evidence shows that
during the 
7offense or during the arrest the defendant possessed or used a

8firearm, machine gun, explosive or metal piercing ammunition or 
9explosive
bomb device or any military or paramilitary armament,

10whether the evidence
shows that the offense committed was 
11related to or in furtherance of the
criminal activities of an 
12organized gang or was motivated by the defendant's
membership 
13in or allegiance to an organized gang,
the condition of the

14victim, any written statement submitted by the victim or 
15proffer or
representation by the State regarding the
impact 
16which the alleged criminal conduct has had on the victim and 
17the
victim's concern, if any, with further contact with the 
18defendant if
released on bail, whether the offense was based on 
19racial, religious,
sexual orientation or ethnic hatred,
the 
20likelihood of the filing of a greater charge, the likelihood of

21conviction, the sentence applicable upon conviction, the 
22weight of the evidence
against such defendant, whether there 
23exists motivation or ability to
flee, whether there is any 
24verification as to prior residence, education,
or family ties 
25in the local jurisdiction, in another county,
state or foreign 
26country, the defendant's employment, financial resources,

 
 
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1character and mental condition, past conduct, prior use of 
2alias names or
dates of birth, and length of residence in the 
3community,
the consent of the defendant to periodic drug 
4testing in accordance with
Section 110-6.5,
whether a foreign 
5national defendant is lawfully admitted in the United
States of 
6America, whether the government of the foreign national

7maintains an extradition treaty with the United States by which 
8the foreign
government will extradite to the United States its 
9national for a trial for
a crime allegedly committed in the 
10United States, whether the defendant is
currently subject to 
11deportation or exclusion under the immigration laws of
the 
12United States, whether the defendant, although a United States 
13citizen,
is considered under the law of any foreign state a 
14national of that state
for the purposes of extradition or 
15non-extradition to the United States,
the amount of unrecovered 
16proceeds lost as a result of
the alleged offense, the
source of 
17bail funds tendered or sought to be tendered for bail,
whether 
18from the totality of the court's consideration,
the loss of 
19funds posted or sought to be posted for bail will not deter the

20defendant from flight, whether the evidence shows that the 
21defendant is
engaged in significant
possession, manufacture, 
22or delivery of a controlled substance or cannabis,
either 
23individually or in consort with others,
whether at the time of 
24the offense
charged he or she was on bond or pre-trial release 
25pending trial, probation,
periodic imprisonment or conditional 
26discharge pursuant to this Code or the
comparable Code of any 
 
 
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1other state or federal jurisdiction, whether the
defendant is 
2on bond or
pre-trial release pending the imposition or 
3execution of sentence or appeal of
sentence for any offense 
4under the laws of Illinois or any other state or
federal 
5jurisdiction, whether the defendant is under parole, aftercare 
6release, mandatory
supervised release, or
work release from the 
7Illinois Department of Corrections or Illinois Department of 
8Juvenile Justice or any penal
institution or corrections 
9department of any state or federal
jurisdiction, the 
10defendant's record of convictions, whether the defendant has 
11been
convicted of a misdemeanor or ordinance offense in 
12Illinois or similar
offense in other state or federal 
13jurisdiction within the 10 years
preceding the current charge 
14or convicted of a felony in Illinois, whether
the defendant was 
15convicted of an offense in another state or federal

16jurisdiction that would
be a felony if committed in Illinois 
17within the 20 years preceding the
current charge or has been 
18convicted of such felony and released from the
penitentiary 
19within 20 years preceding the current charge if a
penitentiary 
20sentence was imposed in Illinois or other state or federal

21jurisdiction, the defendant's records of juvenile adjudication 
22of delinquency in any
jurisdiction, any record of appearance or 
23failure to appear by
the defendant at
court proceedings, 
24whether there was flight to avoid arrest or
prosecution, 
25whether the defendant escaped or
attempted to escape to avoid 
26arrest, whether the defendant refused to
identify himself or 
 
 
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1herself, or whether there was a refusal by the defendant to be

2fingerprinted as required by law. Information used by the court 
3in its
findings or stated in or
offered in connection with this 
4Section may be by way of proffer based upon
reliable 
5information offered by the State or defendant.
All evidence 
6shall be admissible if it is relevant and
reliable regardless 
7of whether it would be admissible under the rules of
evidence 
8applicable at criminal trials.
If the State presents evidence 
9that the offense committed by the defendant
was related to or 
10in furtherance of the criminal activities of an organized
gang 
11or was motivated by the defendant's membership in or allegiance 
12to an
organized gang, and if the court determines that the 
13evidence may be
substantiated, the court shall prohibit the 
14defendant from associating with
other members of the organized 
15gang as a condition of bail or release.
For the purposes of 
16this Section,
"organized gang" has the meaning ascribed to it 
17in Section 10 of the Illinois
Streetgang Terrorism Omnibus 
18Prevention Act.

19 (b) The amount of bail shall be:


20  (1) Sufficient to assure compliance with the 
21 conditions set forth in the
bail bond, which shall include 
22 the defendant's current address with a written

23 admonishment to the defendant that he or she must comply 
24 with the provisions of
Section 110-12 regarding any change 
25 in his or her address. The defendant's
address shall at all 
26 times remain a matter of public record with the clerk
of 
 
 
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1 the court.


2  (2) Not oppressive.


3  (3) Considerate of the financial ability of the 
4 accused.


5  (4) When a person is charged with a drug related 
6 offense involving
possession or delivery of cannabis or 
7 possession or delivery of a
controlled substance as defined 
8 in the Cannabis Control Act,
the Illinois Controlled 
9 Substances Act, or the Methamphetamine Control and 
10 Community Protection Act, the full street value
of the 
11 drugs seized shall be considered. "Street value" shall be

12 determined by the court on the basis of a proffer by the 
13 State based upon
reliable information of a law enforcement 
14 official contained in a written
report as to the amount 
15 seized and such proffer may be used by the court as
to the 
16 current street value of the smallest unit of the drug 
17 seized.

18 (b-1) If a first-time offender is charged with a 
19non-violent offense that is a misdemeanor, the court may order 
20him or her released on his or her own recognizance, unless the 
21court makes a specific finding that a cash bond is necessary to 
22secure his or her appearance, and in addition to any other 
23conditions, may order as a condition of his or her release, his 
24or her monitoring under electronic surveillance as provided in 
25Article 8A of Chapter V of the Unified Code of Corrections. 
26 For the purposes of this subsection (b-1), "non-violent 
 
 
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1offense" means an offense that is a violent crime as defined in 
2Section 3 of the Rights of Crime Victims and Witnesses Act. 
3 (b-5) Upon the filing of a written request demonstrating 
4reasonable cause, the State's Attorney may request a source of 
5bail hearing either before or after the posting of any funds.

6If the hearing is granted, before the posting of any bail, the 
7accused must file a written notice requesting that the court 
8conduct a source of bail hearing. The notice must be 
9accompanied by justifying affidavits stating the legitimate 
10and lawful source of funds for bail. At the hearing, the court 
11shall inquire into any matters stated in any justifying 
12affidavits, and may also inquire into matters appropriate to 
13the determination which shall include, but are not limited to, 
14the following:
15  (1) the background, character, reputation, and 
16 relationship to the accused of any surety; and
17  (2) the source of any money or property deposited by 
18 any surety, and whether any such money or property 
19 constitutes the fruits of criminal or unlawful conduct; and
20  (3) the source of any money posted as cash bail, and 
21 whether any such money constitutes the fruits of criminal 
22 or unlawful conduct; and
23  (4) the background, character, reputation, and 
24 relationship to the accused of the person posting cash 
25 bail.
26 Upon setting the hearing, the court shall examine, under 
 
 
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1oath, any persons who may possess material information.
2 The State's Attorney has a right to attend the hearing, to 
3call witnesses and to examine any witness in the proceeding. 
4The court shall, upon request of the State's Attorney, continue 
5the proceedings for a reasonable period to allow the State's 
6Attorney to investigate the matter raised in any testimony or 
7affidavit.
If the hearing is granted after the accused has 
8posted bail, the court shall conduct a hearing consistent with 
9this subsection (b-5). At the conclusion of the hearing, the 
10court must issue an order either approving of disapproving the 
11bail.

12 (c) When a person is charged with an offense punishable by 
13fine only the
amount of the bail shall not exceed double the 
14amount of the maximum penalty.

15 (d) When a person has been convicted of an offense and only 
16a fine has
been imposed the amount of the bail shall not exceed 
17double the amount of
the fine.

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

19a given amount for bail.
20 (f) When a person is charged with a violation of an order 
21of protection under Section 12-3.4 or 12-30 of the Criminal 
22Code of 1961 or the Criminal Code of 2012,
23  (1) whether the alleged incident involved harassment 
24 or abuse, as defined in the Illinois Domestic Violence Act 
25 of 1986;
26  (2) whether the person has a history of domestic 
 
 
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1 violence, as defined in the Illinois Domestic Violence Act, 
2 or a history of other criminal acts;
3  (3) based on the mental health of the person;
4  (4) whether the person has a history of violating the 
5 orders of any court or governmental entity;
6  (5) whether the person has been, or is, potentially a 
7 threat to any other person;
8  (6) whether the person has access to deadly weapons or 
9 a history of using deadly weapons;
10  (7) whether the person has a history of abusing alcohol 
11 or any controlled substance;
12  (8) based on the severity of the alleged incident that 
13 is the basis of the alleged offense, including, but not 
14 limited to, the duration of the current incident, and 
15 whether the alleged incident involved physical injury, 
16 sexual assault, strangulation, abuse during the alleged 
17 victim's pregnancy, abuse of pets, or forcible entry to 
18 gain access to the alleged victim;
19  (9) whether a separation of the person from the alleged 
20 victim or a termination of the relationship between the 
21 person and the alleged victim has recently occurred or is 
22 pending;
23  (10) whether the person has exhibited obsessive or 
24 controlling behaviors toward the alleged victim, 
25 including, but not limited to, stalking, surveillance, or 
26 isolation of the alleged victim or victim's family member 
 
 
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1 or members; 
2  (11) whether the person has expressed suicidal or 
3 homicidal ideations;
4  (12) based on any information contained in the 
5 complaint and any police reports, affidavits, or other 
6 documents accompanying the complaint, 
7the court may, in its discretion, order the respondent to 
8undergo a risk assessment evaluation conducted by an Illinois 
9Department of Human Services approved partner abuse 
10intervention program provider, pretrial service, probation, or 
11parole agency. These agencies shall have access to summaries of 
12the defendant's criminal history, which shall not include 
13victim interviews or information, for the risk evaluation. 
14Based on the information collected from the 12 points to be 
15considered at a bail hearing for a violation of an order of 
16protection, the results of any risk evaluation conducted and 
17the other circumstances of the violation, the court may order 
18that the person, as a condition of bail, be placed under 
19electronic surveillance as provided in Section 5-8A-7 of the 
20Unified Code of Corrections. 

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