101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB5540

 

Introduced , by Rep. Joyce Mason

 

SYNOPSIS AS INTRODUCED:
 
725 ILCS 5/110-5  from Ch. 38, par. 110-5

    Amends the Code of Criminal Procedure of 1963. Provides that in all cases involving domestic violence, the court must order the defendant to undergo a risk assessment evaluation using a recognized, evidence-based instrument conducted by an Illinois Department of Human Services approved partner abuse intervention program provider, pretrial service, probation, or parole agency. Provides that these agencies shall have access to summaries of the defendant's criminal history, which shall not include victim interviews or information, for the risk evaluation. Provides that in every domestic violence case that will effect the amount of bail or require electronic monitoring, the defendant shall pay for the cost of electronic monitoring. Provides that the court shall revoke bail in domestic violence cases and issue a warrant for defendant's arrest if during the defendant's release on bail, the defendant makes a credible threat against the victim or other persons.


LRB101 18320 RLC 67766 b

 

 

A BILL FOR

 

HB5540LRB101 18320 RLC 67766 b

1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
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 offense involved domestic violence as
17defined in Section 112A-3, whether the evidence shows that as
18part of the offense there was a use of violence or threatened
19use of violence or committed domestic violence or threatened
20domestic violence against a family or household member, whether
21the offense involved corruption of public officials or
22employees, whether there was physical harm or threats of
23physical harm to any public official, public employee, judge,

 

 

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1prosecutor, juror or witness, senior citizen, child, or person
2with a disability, whether evidence shows that during the
3offense or during the arrest the defendant possessed or used a
4firearm, machine gun, explosive or metal piercing ammunition or
5explosive bomb device or any military or paramilitary armament,
6whether the evidence shows that the offense committed was
7related to or in furtherance of the criminal activities of an
8organized gang or was motivated by the defendant's membership
9in or allegiance to an organized gang, the condition of the
10victim, any written statement submitted by the victim or
11proffer or representation by the State regarding the impact
12which the alleged criminal conduct has had on the victim and
13the victim's concern, if any, with further contact with the
14defendant if released on bail, whether the offense was based on
15racial, religious, sexual orientation or ethnic hatred, the
16likelihood of the filing of a greater charge, the likelihood of
17conviction, the sentence applicable upon conviction, the
18weight of the evidence against such defendant, whether there
19exists motivation or ability to flee, whether there is any
20verification as to prior residence, education, or family ties
21in the local jurisdiction, in another county, state or foreign
22country, the defendant's employment, financial resources,
23character and mental condition, past conduct, prior use of
24alias names or dates of birth, and length of residence in the
25community, the consent of the defendant to periodic drug
26testing in accordance with Section 110-6.5, whether a foreign

 

 

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1national defendant is lawfully admitted in the United States of
2America, whether the government of the foreign national
3maintains an extradition treaty with the United States by which
4the foreign government will extradite to the United States its
5national for a trial for a crime allegedly committed in the
6United States, whether the defendant is currently subject to
7deportation or exclusion under the immigration laws of the
8United States, whether the defendant, although a United States
9citizen, is considered under the law of any foreign state a
10national of that state for the purposes of extradition or
11non-extradition to the United States, the amount of unrecovered
12proceeds lost as a result of the alleged offense, the source of
13bail funds tendered or sought to be tendered for bail, whether
14from the totality of the court's consideration, the loss of
15funds posted or sought to be posted for bail will not deter the
16defendant from flight, whether the evidence shows that the
17defendant is engaged in significant possession, manufacture,
18or delivery of a controlled substance or cannabis, either
19individually or in consort with others, whether at the time of
20the offense charged he or she was on bond or pre-trial release
21pending trial, probation, periodic imprisonment or conditional
22discharge pursuant to this Code or the comparable Code of any
23other state or federal jurisdiction, whether the defendant is
24on bond or pre-trial release pending the imposition or
25execution of sentence or appeal of sentence for any offense
26under the laws of Illinois or any other state or federal

 

 

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1jurisdiction, whether the defendant is under parole, aftercare
2release, mandatory supervised release, or work release from the
3Illinois Department of Corrections or Illinois Department of
4Juvenile Justice or any penal institution or corrections
5department of any state or federal jurisdiction, the
6defendant's record of convictions, whether the defendant has
7been convicted of a misdemeanor or ordinance offense in
8Illinois or similar offense in other state or federal
9jurisdiction within the 10 years preceding the current charge
10or convicted of a felony in Illinois, whether the defendant was
11convicted of an offense in another state or federal
12jurisdiction that would be a felony if committed in Illinois
13within the 20 years preceding the current charge or has been
14convicted of such felony and released from the penitentiary
15within 20 years preceding the current charge if a penitentiary
16sentence was imposed in Illinois or other state or federal
17jurisdiction, the defendant's records of juvenile adjudication
18of delinquency in any jurisdiction, any record of appearance or
19failure to appear by the defendant at court proceedings,
20whether there was flight to avoid arrest or prosecution,
21whether the defendant escaped or attempted to escape to avoid
22arrest, whether the defendant refused to identify himself or
23herself, or whether there was a refusal by the defendant to be
24fingerprinted as required by law. Information used by the court
25in its findings or stated in or offered in connection with this
26Section may be by way of proffer based upon reliable

 

 

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1information offered by the State or defendant. All evidence
2shall be admissible if it is relevant and reliable regardless
3of whether it would be admissible under the rules of evidence
4applicable at criminal trials. If the State presents evidence
5that the offense committed by the defendant was related to or
6in furtherance of the criminal activities of an organized gang
7or was motivated by the defendant's membership in or allegiance
8to an organized gang, and if the court determines that the
9evidence may be substantiated, the court shall prohibit the
10defendant from associating with other members of the organized
11gang as a condition of bail or release. For the purposes of
12this Section, "organized gang" has the meaning ascribed to it
13in Section 10 of the Illinois Streetgang Terrorism Omnibus
14Prevention Act.
15    (a-1) In all cases involving domestic violence as defined
16in Section 112A-3, the court must order the defendant to
17undergo a risk assessment evaluation using a recognized,
18evidence-based instrument conducted by an Illinois Department
19of Human Services approved partner abuse intervention program
20provider, pretrial service, probation, or parole agency. These
21agencies shall have access to summaries of the defendant's
22criminal history, which shall not include victim interviews or
23information, for the risk evaluation. In every domestic
24violence case that will effect the amount of bail or require
25electronic monitoring, the defendant shall pay for the cost of
26electronic monitoring. The court shall revoke bail in domestic

 

 

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1violence cases and issue a warrant for defendant's arrest if
2during the defendant's release on bail, the defendant makes a
3credible threat against the victim or other persons.
4    (a-5) There shall be a presumption that any conditions of
5release imposed shall be non-monetary in nature and the court
6shall impose the least restrictive conditions or combination of
7conditions necessary to reasonably assure the appearance of the
8defendant for further court proceedings and protect the
9integrity of the judicial proceedings from a specific threat to
10a witness or participant. Conditions of release may include,
11but not be limited to, electronic home monitoring, curfews,
12drug counseling, stay-away orders, and in-person reporting.
13The court shall consider the defendant's socio-economic
14circumstance when setting conditions of release or imposing
15monetary bail.
16    (b) The amount of bail shall be:
17        (1) Sufficient to assure compliance with the
18    conditions set forth in the bail bond, which shall include
19    the defendant's current address with a written
20    admonishment to the defendant that he or she must comply
21    with the provisions of Section 110-12 regarding any change
22    in his or her address. The defendant's address shall at all
23    times remain a matter of public record with the clerk of
24    the court.
25        (2) Not oppressive.
26        (3) Considerate of the financial ability of the

 

 

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1    accused.
2        (4) When a person is charged with a drug related
3    offense involving possession or delivery of cannabis or
4    possession or delivery of a controlled substance as defined
5    in the Cannabis Control Act, the Illinois Controlled
6    Substances Act, or the Methamphetamine Control and
7    Community Protection Act, the full street value of the
8    drugs seized shall be considered. "Street value" shall be
9    determined by the court on the basis of a proffer by the
10    State based upon reliable information of a law enforcement
11    official contained in a written report as to the amount
12    seized and such proffer may be used by the court as to the
13    current street value of the smallest unit of the drug
14    seized.
15    (b-5) Upon the filing of a written request demonstrating
16reasonable cause, the State's Attorney may request a source of
17bail hearing either before or after the posting of any funds.
18If the hearing is granted, before the posting of any bail, the
19accused must file a written notice requesting that the court
20conduct a source of bail hearing. The notice must be
21accompanied by justifying affidavits stating the legitimate
22and lawful source of funds for bail. At the hearing, the court
23shall inquire into any matters stated in any justifying
24affidavits, and may also inquire into matters appropriate to
25the determination which shall include, but are not limited to,
26the following:

 

 

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1        (1) the background, character, reputation, and
2    relationship to the accused of any surety; and
3        (2) the source of any money or property deposited by
4    any surety, and whether any such money or property
5    constitutes the fruits of criminal or unlawful conduct; and
6        (3) the source of any money posted as cash bail, and
7    whether any such money constitutes the fruits of criminal
8    or unlawful conduct; and
9        (4) the background, character, reputation, and
10    relationship to the accused of the person posting cash
11    bail.
12    Upon setting the hearing, the court shall examine, under
13oath, any persons who may possess material information.
14    The State's Attorney has a right to attend the hearing, to
15call witnesses and to examine any witness in the proceeding.
16The court shall, upon request of the State's Attorney, continue
17the proceedings for a reasonable period to allow the State's
18Attorney to investigate the matter raised in any testimony or
19affidavit. If the hearing is granted after the accused has
20posted bail, the court shall conduct a hearing consistent with
21this subsection (b-5). At the conclusion of the hearing, the
22court must issue an order either approving or of disapproving
23the bail.
24    (c) When a person is charged with an offense punishable by
25fine only the amount of the bail shall not exceed double the
26amount of the maximum penalty.

 

 

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1    (d) When a person has been convicted of an offense and only
2a fine has been imposed the amount of the bail shall not exceed
3double the amount of the fine.
4    (e) The State may appeal any order granting bail or setting
5a given amount for bail.
6    (f) When a person is charged with a violation of an order
7of protection under Section 12-3.4 or 12-30 of the Criminal
8Code of 1961 or the Criminal Code of 2012 or when a person is
9charged with domestic battery, aggravated domestic battery,
10kidnapping, aggravated kidnaping, unlawful restraint,
11aggravated unlawful restraint, stalking, aggravated stalking,
12cyberstalking, harassment by telephone, harassment through
13electronic communications, or an attempt to commit first degree
14murder committed against an intimate partner regardless
15whether an order of protection has been issued against the
16person,
17        (1) whether the alleged incident involved harassment
18    or abuse, as defined in the Illinois Domestic Violence Act
19    of 1986;
20        (2) whether the person has a history of domestic
21    violence, as defined in the Illinois Domestic Violence Act,
22    or a history of other criminal acts;
23        (3) based on the mental health of the person;
24        (4) whether the person has a history of violating the
25    orders of any court or governmental entity;
26        (5) whether the person has been, or is, potentially a

 

 

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1    threat to any other person;
2        (6) whether the person has access to deadly weapons or
3    a history of using deadly weapons;
4        (7) whether the person has a history of abusing alcohol
5    or any controlled substance;
6        (8) based on the severity of the alleged incident that
7    is the basis of the alleged offense, including, but not
8    limited to, the duration of the current incident, and
9    whether the alleged incident involved the use of a weapon,
10    physical injury, sexual assault, strangulation, abuse
11    during the alleged victim's pregnancy, abuse of pets, or
12    forcible entry to gain access to the alleged victim;
13        (9) whether a separation of the person from the alleged
14    victim or a termination of the relationship between the
15    person and the alleged victim has recently occurred or is
16    pending;
17        (10) whether the person has exhibited obsessive or
18    controlling behaviors toward the alleged victim,
19    including, but not limited to, stalking, surveillance, or
20    isolation of the alleged victim or victim's family member
21    or members;
22        (11) whether the person has expressed suicidal or
23    homicidal ideations;
24        (12) based on any information contained in the
25    complaint and any police reports, affidavits, or other
26    documents accompanying the complaint,

 

 

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1the court may, in its discretion, order the respondent to
2undergo a risk assessment evaluation using a recognized,
3evidence-based instrument conducted by an Illinois Department
4of Human Services approved partner abuse intervention program
5provider, pretrial service, probation, or parole agency. These
6agencies shall have access to summaries of the defendant's
7criminal history, which shall not include victim interviews or
8information, for the risk evaluation. Based on the information
9collected from the 12 points to be considered at a bail hearing
10under this subsection (f), the results of any risk evaluation
11conducted and the other circumstances of the violation, the
12court may order that the person, as a condition of bail, be
13placed under electronic surveillance as provided in Section
145-8A-7 of the Unified Code of Corrections. Upon making a
15determination whether or not to order the respondent to undergo
16a risk assessment evaluation or to be placed under electronic
17surveillance and risk assessment, the court shall document in
18the record the court's reasons for making those determinations.
19The cost of the electronic surveillance and risk assessment
20shall be paid by, or on behalf, of the defendant. As used in
21this subsection (f), "intimate partner" means a spouse or a
22current or former partner in a cohabitation or dating
23relationship.
24(Source: P.A. 99-143, eff. 7-27-15; 100-1, eff. 1-1-18; revised
257-12-19.)