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| | 98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB5710 Introduced , by Rep. Emily McAsey SYNOPSIS AS INTRODUCED:
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725 ILCS 5/110-5 | from Ch. 38, par. 110-5 |
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Amends the Code of Criminal Procedure of 1963. In determining the amount of bail on a person charged with a violation of an order of protection, a pretrial service agency or probation department shall have access to victim interviews and access for a direct interview of the victim (rather than denied access to victim interviews or information). Effective immediately.
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| | A BILL FOR |
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| | HB5710 | | LRB098 18643 MRW 53786 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 Section 110-5 as follows:
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| 6 | | (725 ILCS 5/110-5) (from Ch. 38, par. 110-5)
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| 7 | | Sec. 110-5. Determining the amount of bail and conditions |
| 8 | | of release.
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| 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,
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| 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
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| 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
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| 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,
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| 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
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| 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
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| 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
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| 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
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| 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
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| 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.
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| 12 | | (b) The amount of bail shall be:
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| 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
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| 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.
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| 21 | | (2) Not oppressive.
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| 22 | | (3) Considerate of the financial ability of the |
| 23 | | accused.
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| 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
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| 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.
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| 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.
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| 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.
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| 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.
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| 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.
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| 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, |
| 5 | | (1) whether the alleged incident involved harassment |
| 6 | | or abuse, as defined in the Illinois Domestic Violence Act |
| 7 | | of 1986; |
| 8 | | (2) whether the person has a history of domestic |
| 9 | | violence, as defined in the Illinois Domestic Violence Act, |
| 10 | | or a history of other criminal acts; |
| 11 | | (3) based on the mental health of the person; |
| 12 | | (4) whether the person has a history of violating the |
| 13 | | orders of any court or governmental entity; |
| 14 | | (5) whether the person has been, or is, potentially a |
| 15 | | threat to any other person; |
| 16 | | (6) whether the person has access to deadly weapons or |
| 17 | | a history of using deadly weapons; |
| 18 | | (7) whether the person has a history of abusing alcohol |
| 19 | | or any controlled substance; |
| 20 | | (8) based on the severity of the alleged incident that |
| 21 | | is the basis of the alleged offense, including, but not |
| 22 | | limited to, the duration of the current incident, and |
| 23 | | whether the alleged incident involved physical injury, |
| 24 | | sexual assault, strangulation, abuse during the alleged |
| 25 | | victim's pregnancy, abuse of pets, or forcible entry to |
| 26 | | gain access to the alleged victim; |
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| 1 | | (9) whether a separation of the person from the alleged |
| 2 | | victim or a termination of the relationship between the |
| 3 | | person and the alleged victim has recently occurred or is |
| 4 | | pending; |
| 5 | | (10) whether the person has exhibited obsessive or |
| 6 | | controlling behaviors toward the alleged victim, |
| 7 | | including, but not limited to, stalking, surveillance, or |
| 8 | | isolation of the alleged victim or victim's family member |
| 9 | | or members; |
| 10 | | (11) whether the person has expressed suicidal or |
| 11 | | homicidal ideations; |
| 12 | | (12) based on any information contained in the |
| 13 | | complaint and any police reports, affidavits, or other |
| 14 | | documents accompanying the complaint, |
| 15 | | the court may, in its discretion, order the respondent to |
| 16 | | undergo a risk assessment evaluation conducted by an Illinois |
| 17 | | Department of Human Services approved partner abuse |
| 18 | | intervention program provider, pretrial service, probation, or |
| 19 | | parole agency. These agencies shall have access to summaries of |
| 20 | | the defendant's criminal history, which shall not include |
| 21 | | victim interviews or information, for the risk evaluation, |
| 22 | | except that a pretrial service agency or probation department |
| 23 | | shall have access to victim interviews and access for a direct |
| 24 | | interview of the victim for the purpose of determining bail. |
| 25 | | Based on the information collected from the 12 points to be |
| 26 | | considered at a bail hearing for a violation of an order of |
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| 1 | | protection, the results of any risk evaluation conducted and |
| 2 | | the other circumstances of the violation, the court may order |
| 3 | | that the person, as a condition of bail, be placed under |
| 4 | | electronic surveillance as provided in Section 5-8A-7 of the |
| 5 | | Unified Code of Corrections.
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| 6 | | (Source: P.A. 97-1150, eff. 1-25-13; 98-558, eff. 1-1-14.)
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| 7 | | Section 99. Effective date. This Act takes effect upon |
| 8 | | becoming law.
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