Full Text of HB3744 98th General Assembly
HB3744enr 98TH GENERAL ASSEMBLY |
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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 domestic battery, aggravated domestic battery, | 6 | | kidnapping, aggravated kidnaping, unlawful restraint, | 7 | | aggravated unlawful restraint, stalking, aggravated stalking, | 8 | | cyberstalking, harassment by telephone, harassment through | 9 | | electronic communications, or an attempt to commit first degree | 10 | | murder committed against an intimate partner regardless | 11 | | whether an order of protection has been issued against the | 12 | | person , | 13 | | (1) whether the alleged incident involved harassment | 14 | | or abuse, as defined in the Illinois Domestic Violence Act | 15 | | of 1986; | 16 | | (2) whether the person has a history of domestic | 17 | | violence, as defined in the Illinois Domestic Violence Act, | 18 | | or a history of other criminal acts; | 19 | | (3) based on the mental health of the person; | 20 | | (4) whether the person has a history of violating the | 21 | | orders of any court or governmental entity; | 22 | | (5) whether the person has been, or is, potentially a | 23 | | threat to any other person; | 24 | | (6) whether the person has access to deadly weapons or | 25 | | a history of using deadly weapons; | 26 | | (7) whether the person has a history of abusing alcohol |
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| 1 | | or any controlled substance; | 2 | | (8) based on the severity of the alleged incident that | 3 | | is the basis of the alleged offense, including, but not | 4 | | limited to, the duration of the current incident, and | 5 | | whether the alleged incident involved the use of a weapon, | 6 | | physical injury, sexual assault, strangulation, abuse | 7 | | during the alleged victim's pregnancy, abuse of pets, or | 8 | | forcible entry to gain access to the alleged victim; | 9 | | (9) whether a separation of the person from the alleged | 10 | | victim or a termination of the relationship between the | 11 | | person and the alleged victim has recently occurred or is | 12 | | pending; | 13 | | (10) whether the person has exhibited obsessive or | 14 | | controlling behaviors toward the alleged victim, | 15 | | including, but not limited to, stalking, surveillance, or | 16 | | isolation of the alleged victim or victim's family member | 17 | | or members; | 18 | | (11) whether the person has expressed suicidal or | 19 | | homicidal ideations; | 20 | | (12) based on any information contained in the | 21 | | complaint and any police reports, affidavits, or other | 22 | | documents accompanying the complaint, | 23 | | the court may, in its discretion, order the respondent to | 24 | | undergo a risk assessment evaluation using a recognized, | 25 | | evidence-based instrument conducted by an Illinois Department | 26 | | of Human Services approved partner abuse intervention program |
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| 1 | | provider, pretrial service, probation, or parole agency. These | 2 | | agencies shall have access to summaries of the defendant's | 3 | | criminal history, which shall not include victim interviews or | 4 | | information, for the risk evaluation. Based on the information | 5 | | collected from the 12 points to be considered at a bail hearing | 6 | | under this subsection (f) for a violation of an order of | 7 | | protection , the results of any risk evaluation conducted and | 8 | | the other circumstances of the violation, the court may order | 9 | | that the person, as a condition of bail, be placed under | 10 | | electronic surveillance as provided in Section 5-8A-7 of the | 11 | | Unified Code of Corrections. Upon making a determination | 12 | | whether or not to order the respondent to undergo a risk | 13 | | assessment evaluation or to be placed under electronic | 14 | | surveillance and risk assessment, the court shall document in | 15 | | the record the court's reasons for making those determinations. | 16 | | The cost of the electronic surveillance and risk assessment | 17 | | shall be paid by, or on behalf, of the defendant. As used in | 18 | | this subsection (f), "intimate partner" means a spouse or a | 19 | | current or former partner in a cohabitation or dating | 20 | | relationship.
| 21 | | (Source: P.A. 97-1150, eff. 1-25-13; 98-558, eff. 1-1-14.)
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