101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB2444

 

Introduced , by Rep. Kelly M. Cassidy

 

SYNOPSIS AS INTRODUCED:
 
725 ILCS 5/110-5.3 new
730 ILCS 5/5-5-3.1  from Ch. 38, par. 1005-5-3.1

    Amends the Code of Criminal Procedure of 1963. Provides that at the initial bail hearing or any subsequent hearing, the defendant shall be released on recognizance if the judge finds that the defendant's pre-trial detention will harm any infant or child in the defendant's custody at the time of arrest, unless the harm is outweighed by a clear and serious risk of harm to a victim or the community. Provides circumstances that the court shall consider in favor of release. Amends the Unified Code of Corrections. Provides that the defendant is the parent of a child or infant whose well-being will be affected by the parent's absence shall be accorded weight in favor of withholding or minimizing a sentence of imprisonment. Provides circumstances to be considered in assessing this factor in mitigation. Makes other changes.


LRB101 10397 SLF 55503 b

 

 

A BILL FOR

 

HB2444LRB101 10397 SLF 55503 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 1. This Act may be referred to as the Children's
5Best Interest Act.
 
6    Section 3. Purpose. The purpose of this Act is to:
7    (1) prevent unnecessary harm to children caused by
8separation from parents during pre-trial detention or
9incarceration; and
10    (2) ensure the fair and compassionate treatment of children
11whose parents are involved in the criminal justice system by
12affording certain basic considerations to these children when
13decisions are made that affect them. Sentences that are based
14on evidence-based practices serve families and communities, as
15well as defendants. Parental incarceration is classified as an
16Adverse Childhood Experience. Multiple peer-reviewed studies
17connect Adverse Childhood Experiences, a set of specific
18traumatic events that occur during childhood, to poor mental
19and physical health outcomes such as chronic diseases, certain
20cancers, sexually transmitted infections, depression, and
21other mental health conditions. Allowing incarcerated mothers
22and babies to co-habitate during the baby's first year of life
23leads to babies having more secure attachments when compared to

 

 

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1those who have not co-habitated for a full year which improves
2long-term outcomes for both mothers and babies.
3Community-based residential parenting programs and day
4programs where parents can serve their sentences with their
5infants and children in a non-prison setting that offers
6housing and social services serve to enhance parent-child
7bonding and foster healthy child development. Family-based
8drug treatment programs that offer parenting skills training
9and home-based case management services are successful in
10reducing parental drug abuse and improving parenting skills.
11Parenting classes for fathers and mothers improve parent-child
12relationships and attachment, children's self-concept and
13behaviors, and feelings of competence among parents. Among
14parents who participate in residential drug treatment, those
15who have their children with them are far more likely to
16complete the program when compared to those who are separated
17from their children. Children of parents who participate in
18family-based drug treatment are less likely to develop
19substance abuse disorders.
 
20    Section 5. The Code of Criminal Procedure of 1963 is
21amended by adding Section 110-5.3 as follows:
 
22    (725 ILCS 5/110-5.3 new)
23    Sec. 110-5.3. Bail; impact of parental detention on
24children.

 

 

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1    (a) It is the policy of this State that a family unit
2should not be unnecessarily disrupted by pre-trial detention
3absent a finding by the court that continued pre-trial custody
4is necessary to protect the public or the victim of the offense
5on which the charge is based.
6    (b) At the initial bail hearing or any subsequent hearing,
7the defendant shall be released on recognizance if the judge
8finds that the defendant's pre-trial detention will harm any
9infant or child in the defendant's custody at the time of
10arrest, unless the harm is outweighed by a clear and serious
11risk of harm to a victim or the community. The court shall
12consider the following factors as reasons for release
13pre-trial, based on information provided by the defendant and
14any witnesses available:
15        (1) The defendant is the parent of a child or infant
16    whose well-being will be affected by the parent's absence.
17    Circumstances to be considered in favor of release of the
18    defendant include:
19            (A) that the defendant is a parent whose child is
20        still breastfeeding;
21            (B) the age of the child, with strong consideration
22        given to avoid disruption of the caregiving of an
23        infant, pre-school or school-age child by a parent;
24            (C) the role of the parent in the day-to-day
25        educational and medical needs of the child;
26            (D) the relationship of the parent and the child;

 

 

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1            (E) any special medical, educational, or
2        psychological needs of the child;
3            (F) the role of the parent in the financial support
4        of the child.
5    Under this Section, the defendant shall have the right to
6present a Family Impact Statement, which the court shall
7consider when determining whether to release the defendant and
8may include testimony from family and community members,
9written statements, video, and documentation. Unless the court
10finds that the parent poses a significant risk to the community
11that outweighs the risk of harm from the parent's removal from
12the family, the court shall release the defendant pre-trial to
13allow the parent to continue to care for the child or children.
14        (2) The defendant serves or served as the caregiver for
15    a relative who is ill, disabled, or elderly.
 
16    Section 10. The Unified Code of Corrections is amended by
17changing Section 5-5-3.1 as follows:
 
18    (730 ILCS 5/5-5-3.1)  (from Ch. 38, par. 1005-5-3.1)
19    Sec. 5-5-3.1. Factors in mitigation.
20    (a) The following grounds shall be accorded weight in favor
21of withholding or minimizing a sentence of imprisonment:
22        (1) The defendant's criminal conduct neither caused
23    nor threatened serious physical harm to another.
24        (2) The defendant did not contemplate that his criminal

 

 

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1    conduct would cause or threaten serious physical harm to
2    another.
3        (3) The defendant acted under a strong provocation.
4        (4) There were substantial grounds tending to excuse or
5    justify the defendant's criminal conduct, though failing
6    to establish a defense.
7        (5) The defendant's criminal conduct was induced or
8    facilitated by someone other than the defendant.
9        (6) The defendant has compensated or will compensate
10    the victim of his criminal conduct for the damage or injury
11    that he sustained.
12        (7) The defendant has no history of prior delinquency
13    or criminal activity or has led a law-abiding life for a
14    substantial period of time before the commission of the
15    present crime.
16        (8) The defendant's criminal conduct was the result of
17    circumstances unlikely to recur.
18        (9) The character and attitudes of the defendant
19    indicate that he is unlikely to commit another crime.
20        (10) The defendant is particularly likely to comply
21    with the terms of a period of probation.
22        (11) The imprisonment of the defendant would entail
23    excessive hardship to his dependents.
24        (12) The imprisonment of the defendant would endanger
25    his or her medical condition.
26        (13) The defendant was a person with an intellectual

 

 

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1    disability as defined in Section 5-1-13 of this Code.
2        (14) The defendant sought or obtained emergency
3    medical assistance for an overdose and was convicted of a
4    Class 3 felony or higher possession, manufacture, or
5    delivery of a controlled, counterfeit, or look-alike
6    substance or a controlled substance analog under the
7    Illinois Controlled Substances Act or a Class 2 felony or
8    higher possession, manufacture or delivery of
9    methamphetamine under the Methamphetamine Control and
10    Community Protection Act.
11        (15) At the time of the offense, the defendant is or
12    had been the victim of domestic violence and the effects of
13    the domestic violence tended to excuse or justify the
14    defendant's criminal conduct. As used in this paragraph
15    (15), "domestic violence" means abuse as defined in Section
16    103 of the Illinois Domestic Violence Act of 1986.
17        (16) At the time of the offense, the defendant was
18    suffering from a serious mental illness which, though
19    insufficient to establish the defense of insanity,
20    substantially affected his or her ability to understand the
21    nature of his or her acts or to conform his or her conduct
22    to the requirements of the law.
23        (17) At the time of the offense, the defendant was
24    suffering from post-partum depression or post-partum
25    psychosis which was either undiagnosed or untreated, or
26    both, and this temporary mental illness tended to excuse or

 

 

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1    justify the defendant's criminal conduct and the defendant
2    has been diagnosed as suffering from post-partum
3    depression or post-partum psychosis, or both, by a
4    qualified medical person and the diagnoses or testimony, or
5    both, was not used at trial. In this paragraph (17):
6            "Post-partum depression" means a mood disorder
7        which strikes many women during and after pregnancy
8        which usually occurs during pregnancy and up to 12
9        months after delivery. This depression can include
10        anxiety disorders.
11            "Post-partum psychosis" means an extreme form of
12        post-partum depression which can occur during
13        pregnancy and up to 12 months after delivery. This can
14        include losing touch with reality, distorted thinking,
15        delusions, auditory and visual hallucinations,
16        paranoia, hyperactivity and rapid speech, or mania.
17        (18) The defendant is the parent of a child or infant
18    whose well-being will be affected by the parent's absence.
19    Circumstances to be considered in assessing this factor in
20    mitigation include:
21            (A) that the parent is breastfeeding the child;
22            (B) the age of the child, with strong consideration
23        given to avoid disruption of the caregiving of an
24        infant, pre-school or school-age child by a parent;
25            (C) the role of the parent in the day-to-day
26        educational and medical needs of the child;

 

 

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1            (D) the relationship of the parent and the child;
2            (E) any special medical, educational, or
3        psychological needs of the child;
4            (F) the role of the parent in the financial support
5        of the child.
6    Under this Section, the defendant shall have the right to
7present a Family Impact Statement at sentencing, which the
8court shall consider prior to imposing any sentence and may
9include testimony from family and community members, written
10statements, video, and documentation. Unless the court finds
11that the parent poses a significant risk to the community that
12outweighs the risk of harm from the parent's removal from the
13family, the court shall impose a sentence that allows the
14parent to continue to care for the child or children.
15        (19) The defendant serves or served as the caregiver
16    for a relative who is ill, disabled, or elderly.
17    (b) If the court, having due regard for the character of
18the offender, the nature and circumstances of the offense and
19the public interest finds that a sentence of imprisonment is
20the most appropriate disposition of the offender, or where
21other provisions of this Code mandate the imprisonment of the
22offender, the grounds listed in paragraph (a) of this
23subsection shall be considered as factors in mitigation of the
24term imposed.
25(Source: P.A. 99-143, eff. 7-27-15; 99-384, eff. 1-1-16;
2699-642, eff. 7-28-16; 99-877, eff. 8-22-16; 100-574, eff.

 

 

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16-1-18.)