98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB3773

 

Introduced , by Rep. Michael J. Zalewski

 

SYNOPSIS AS INTRODUCED:
 
725 ILCS 5/110-2  from Ch. 38, par. 110-2
725 ILCS 5/110-5  from Ch. 38, par. 110-5

    Amends the Code of Criminal Procedure of 1963. Requires the court to release a defendant charged with possession of less than 1 gram of heroin, possession of less than 1 gram of cocaine, or possession of less than 10 grams of cannabis on his or own recognizance if certain criteria are met. If the release on own recognizance criteria are not met and the court finds that monetary bail is not necessary to secure the appearance of the defendant, the court may require the defendant's monitoring under electronic surveillance as a condition of his or her release.


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A BILL FOR

 

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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 Sections 110-2 and 110-5 as follows:
 
6    (725 ILCS 5/110-2)  (from Ch. 38, par. 110-2)
7    Sec. 110-2. Release on own recognizance.
8    (a) Except as provided in subsection (b), when When from
9all the circumstances the court is of the opinion that the
10defendant will appear as required either before or after
11conviction and the defendant will not pose a danger to any
12person or the community and that the defendant will comply with
13all conditions of bond, which shall include the defendant's
14current address with a written admonishment to the defendant
15that he or she must comply with the provisions of Section
16110-12 of this Code regarding any change in his or her address,
17the defendant may be released on his or her own recognizance.
18    (b) When a defendant is charged with possession of less
19than 1 gram of heroin, possession of less than 1 gram of
20cocaine, or possession of less than 10 grams of cannabis,
21unless there is a reasonable belief that there is an urgent and
22immediate necessity for the defendant to be in custody, the
23court shall release the defendant on his or her own

 

 

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1recognizance if the court finds that the defendant:
2        (1) is at least 18 years of age;
3        (2) was not engaged in the commission of another
4    offense other than possession of less than 1 gram of
5    heroin, possession of less than 1 gram of cocaine, or
6    possession of less than 10 grams of cannabis;
7        (3) produced satisfactory evidence of his or her
8    identity;
9        (4) has not exhibited behavior which required the
10    arresting officer, a correctional officer, or correctional
11    employee to exert physical force to effectuate the arrest
12    or control the defendant;
13        (5) has not demonstrated behavior that would pose a
14    danger to any person or the community;
15        (6) has not been convicted or found guilty in any
16    jurisdiction as an adult or juvenile for a violation
17    involving the use or threat of physical force or violence;
18        (7) is not the subject of a pending arrest warrant,
19    prosecution, order of protection, or other criminal
20    proceeding; and
21        (8) will comply with all conditions of bond, which
22    shall include the defendant's current address with a
23    written admonishment to the defendant that he or she must
24    comply with the provisions of Section 110-12 of this Code
25    regarding any change in his or her address.
26    (c) The defendant's address shall at all times remain a

 

 

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1matter of public record with the clerk of the court.
2    (d) A failure to appear as required by the such
3recognizance shall constitute an offense subject to the penalty
4provided in Section 32-10 of the Criminal Code of 2012 for
5violation of the bail bond, and any obligated sum fixed in the
6recognizance shall be forfeited and collected in accordance
7with subsection (g) of Section 110-7 of this Code.
8    (e) This Section shall be liberally construed to effectuate
9the purpose of relying upon contempt of court proceedings or
10criminal sanctions instead of financial loss to assure the
11appearance of the defendant, and that the defendant will not
12pose a danger to any person or the community and that the
13defendant will comply with all conditions of bond. Monetary
14bail should be set only when it is determined that no other
15conditions of release will reasonably assure the defendant's
16appearance in court, that the defendant does not present a
17danger to any person or the community and that the defendant
18will comply with all conditions of bond.
19    (f) The State may appeal any order permitting release by
20personal recognizance.
21(Source: P.A. 97-1150, eff. 1-25-13.)
 
22    (725 ILCS 5/110-5)  (from Ch. 38, par. 110-5)
23    Sec. 110-5. Determining the amount of bail and conditions
24of release.
25    (a) In determining the amount of monetary bail or

 

 

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1conditions of release, if any, which will reasonably assure the
2appearance of a defendant as required or the safety of any
3other person or the community and the likelihood of compliance
4by the defendant with all the conditions of bail, the court
5shall, on the basis of available information, take into account
6such matters as the nature and circumstances of the offense
7charged, whether the evidence shows that as part of the offense
8there was a use of violence or threatened use of violence,
9whether the offense involved corruption of public officials or
10employees, whether there was physical harm or threats of
11physical harm to any public official, public employee, judge,
12prosecutor, juror or witness, senior citizen, child or
13handicapped person, whether evidence shows that during the
14offense or during the arrest the defendant possessed or used a
15firearm, machine gun, explosive or metal piercing ammunition or
16explosive bomb device or any military or paramilitary armament,
17whether the evidence shows that the offense committed was
18related to or in furtherance of the criminal activities of an
19organized gang or was motivated by the defendant's membership
20in or allegiance to an organized gang, the condition of the
21victim, any written statement submitted by the victim or
22proffer or representation by the State regarding the impact
23which the alleged criminal conduct has had on the victim and
24the victim's concern, if any, with further contact with the
25defendant if released on bail, whether the offense was based on
26racial, religious, sexual orientation or ethnic hatred, the

 

 

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1likelihood of the filing of a greater charge, the likelihood of
2conviction, the sentence applicable upon conviction, the
3weight of the evidence against such defendant, whether there
4exists motivation or ability to flee, whether there is any
5verification as to prior residence, education, or family ties
6in the local jurisdiction, in another county, state or foreign
7country, the defendant's employment, financial resources,
8character and mental condition, past conduct, prior use of
9alias names or dates of birth, and length of residence in the
10community, the consent of the defendant to periodic drug
11testing in accordance with Section 110-6.5, whether a foreign
12national defendant is lawfully admitted in the United States of
13America, whether the government of the foreign national
14maintains an extradition treaty with the United States by which
15the foreign government will extradite to the United States its
16national for a trial for a crime allegedly committed in the
17United States, whether the defendant is currently subject to
18deportation or exclusion under the immigration laws of the
19United States, whether the defendant, although a United States
20citizen, is considered under the law of any foreign state a
21national of that state for the purposes of extradition or
22non-extradition to the United States, the amount of unrecovered
23proceeds lost as a result of the alleged offense, the source of
24bail funds tendered or sought to be tendered for bail, whether
25from the totality of the court's consideration, the loss of
26funds posted or sought to be posted for bail will not deter the

 

 

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1defendant from flight, whether the evidence shows that the
2defendant is engaged in significant possession, manufacture,
3or delivery of a controlled substance or cannabis, either
4individually or in consort with others, whether at the time of
5the offense charged he or she was on bond or pre-trial release
6pending trial, probation, periodic imprisonment or conditional
7discharge pursuant to this Code or the comparable Code of any
8other state or federal jurisdiction, whether the defendant is
9on bond or pre-trial release pending the imposition or
10execution of sentence or appeal of sentence for any offense
11under the laws of Illinois or any other state or federal
12jurisdiction, whether the defendant is under parole, aftercare
13release, mandatory supervised release, or work release from the
14Illinois Department of Corrections or Illinois Department of
15Juvenile Justice or any penal institution or corrections
16department of any state or federal jurisdiction, the
17defendant's record of convictions, whether the defendant has
18been convicted of a misdemeanor or ordinance offense in
19Illinois or similar offense in other state or federal
20jurisdiction within the 10 years preceding the current charge
21or convicted of a felony in Illinois, whether the defendant was
22convicted of an offense in another state or federal
23jurisdiction that would be a felony if committed in Illinois
24within the 20 years preceding the current charge or has been
25convicted of such felony and released from the penitentiary
26within 20 years preceding the current charge if a penitentiary

 

 

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1sentence was imposed in Illinois or other state or federal
2jurisdiction, the defendant's records of juvenile adjudication
3of delinquency in any jurisdiction, any record of appearance or
4failure to appear by the defendant at court proceedings,
5whether there was flight to avoid arrest or prosecution,
6whether the defendant escaped or attempted to escape to avoid
7arrest, whether the defendant refused to identify himself or
8herself, or whether there was a refusal by the defendant to be
9fingerprinted as required by law. Information used by the court
10in its findings or stated in or offered in connection with this
11Section may be by way of proffer based upon reliable
12information offered by the State or defendant. All evidence
13shall be admissible if it is relevant and reliable regardless
14of whether it would be admissible under the rules of evidence
15applicable at criminal trials. If the State presents evidence
16that the offense committed by the defendant was related to or
17in furtherance of the criminal activities of an organized gang
18or was motivated by the defendant's membership in or allegiance
19to an organized gang, and if the court determines that the
20evidence may be substantiated, the court shall prohibit the
21defendant from associating with other members of the organized
22gang as a condition of bail or release. For the purposes of
23this Section, "organized gang" has the meaning ascribed to it
24in Section 10 of the Illinois Streetgang Terrorism Omnibus
25Prevention Act.
26    (a-5) When a defendant is charged with possession of less

 

 

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1than 1 gram of heroin, possession of less than 1 gram of
2cocaine, or possession of less than 10 grams of cannabis, if
3the court finds that the defendant does not meet the
4requirements for release on own recognizance under subsection
5(b) of Section 110-2 of this Code and that monetary bail is not
6necessary to secure the appearance of the defendant, the court
7may place the defendant on electronic monitoring as a condition
8of his or her release under paragraph (14) of subsection (b) of
9Section 110-10 of this Code.
10    (b) The amount of bail shall be:
11        (1) Sufficient to assure compliance with the
12    conditions set forth in the bail bond, which shall include
13    the defendant's current address with a written
14    admonishment to the defendant that he or she must comply
15    with the provisions of Section 110-12 regarding any change
16    in his or her address. The defendant's address shall at all
17    times remain a matter of public record with the clerk of
18    the court.
19        (2) Not oppressive.
20        (3) Considerate of the financial ability of the
21    accused.
22        (4) When a person is charged with a drug related
23    offense involving possession or delivery of cannabis or
24    possession or delivery of a controlled substance as defined
25    in the Cannabis Control Act, the Illinois Controlled
26    Substances Act, or the Methamphetamine Control and

 

 

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1    Community Protection Act, the full street value of the
2    drugs seized shall be considered. "Street value" shall be
3    determined by the court on the basis of a proffer by the
4    State based upon reliable information of a law enforcement
5    official contained in a written report as to the amount
6    seized and such proffer may be used by the court as to the
7    current street value of the smallest unit of the drug
8    seized.
9    (b-5) Upon the filing of a written request demonstrating
10reasonable cause, the State's Attorney may request a source of
11bail hearing either before or after the posting of any funds.
12If the hearing is granted, before the posting of any bail, the
13accused must file a written notice requesting that the court
14conduct a source of bail hearing. The notice must be
15accompanied by justifying affidavits stating the legitimate
16and lawful source of funds for bail. At the hearing, the court
17shall inquire into any matters stated in any justifying
18affidavits, and may also inquire into matters appropriate to
19the determination which shall include, but are not limited to,
20the following:
21        (1) the background, character, reputation, and
22    relationship to the accused of any surety; and
23        (2) the source of any money or property deposited by
24    any surety, and whether any such money or property
25    constitutes the fruits of criminal or unlawful conduct; and
26        (3) the source of any money posted as cash bail, and

 

 

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

 

 

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1of protection under Section 12-3.4 or 12-30 of the Criminal
2Code of 1961 or the Criminal Code of 2012,
3        (1) whether the alleged incident involved harassment
4    or abuse, as defined in the Illinois Domestic Violence Act
5    of 1986;
6        (2) whether the person has a history of domestic
7    violence, as defined in the Illinois Domestic Violence Act,
8    or a history of other criminal acts;
9        (3) based on the mental health of the person;
10        (4) whether the person has a history of violating the
11    orders of any court or governmental entity;
12        (5) whether the person has been, or is, potentially a
13    threat to any other person;
14        (6) whether the person has access to deadly weapons or
15    a history of using deadly weapons;
16        (7) whether the person has a history of abusing alcohol
17    or any controlled substance;
18        (8) based on the severity of the alleged incident that
19    is the basis of the alleged offense, including, but not
20    limited to, the duration of the current incident, and
21    whether the alleged incident involved physical injury,
22    sexual assault, strangulation, abuse during the alleged
23    victim's pregnancy, abuse of pets, or forcible entry to
24    gain access to the alleged victim;
25        (9) whether a separation of the person from the alleged
26    victim or a termination of the relationship between the

 

 

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1    person and the alleged victim has recently occurred or is
2    pending;
3        (10) whether the person has exhibited obsessive or
4    controlling behaviors toward the alleged victim,
5    including, but not limited to, stalking, surveillance, or
6    isolation of the alleged victim or victim's family member
7    or members;
8        (11) whether the person has expressed suicidal or
9    homicidal ideations;
10        (12) based on any information contained in the
11    complaint and any police reports, affidavits, or other
12    documents accompanying the complaint,
13the court may, in its discretion, order the respondent to
14undergo a risk assessment evaluation conducted by an Illinois
15Department of Human Services approved partner abuse
16intervention program provider, pretrial service, probation, or
17parole agency. These agencies shall have access to summaries of
18the defendant's criminal history, which shall not include
19victim interviews or information, for the risk evaluation.
20Based on the information collected from the 12 points to be
21considered at a bail hearing for a violation of an order of
22protection, the results of any risk evaluation conducted and
23the other circumstances of the violation, the court may order
24that the person, as a condition of bail, be placed under
25electronic surveillance as provided in Section 5-8A-7 of the
26Unified Code of Corrections.

 

 

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