Public Act 098-1012
 
HB3744 EnrolledLRB098 14114 RLC 49633 b


  
    AN ACT concerning criminal law.
  
 
    Be it enacted by the People of the State of Illinois,
 
represented in the General Assembly:
  
 
 
    Section 5. The Code of Criminal Procedure of 1963 is 
amended  by changing Section 110-5 as follows:
 


    (725 ILCS 5/110-5)  (from Ch. 38, par. 110-5)



    Sec. 110-5. Determining the amount of bail and conditions 
of release. 

    (a) In determining the amount of monetary bail or 
conditions of release, if
any,
which will reasonably assure the 
appearance of a defendant as required or
the safety of any 
other person or the community and the likelihood of
compliance 
by the
defendant with all the conditions of bail, the court 
shall, on the
basis of available information, take into account 
such matters as the
nature and circumstances of the offense 
charged, whether the evidence
shows that as part of the offense 
there was a use of violence or threatened
use of violence, 
whether the offense involved corruption of public
officials or 
employees, whether there was physical harm or threats of 
physical
harm to any
public official, public employee, judge, 
prosecutor, juror or witness,
senior citizen, child or 
handicapped person, whether evidence shows that
during the 
offense or during the arrest the defendant possessed or used a

firearm, machine gun, explosive or metal piercing ammunition or 
explosive
bomb device or any military or paramilitary armament,

whether the evidence
shows that the offense committed was 
related to or in furtherance of the
criminal activities of an 
organized gang  or was motivated by the defendant's
membership 
in or allegiance to an organized gang,
the condition of the

victim, any written statement submitted by the victim or 
proffer or
representation by the State regarding the
impact 
which the alleged criminal conduct has had on the victim and 
the
victim's concern, if any, with further contact with the 
defendant if
released on bail, whether the offense was based on 
racial, religious,
sexual orientation or ethnic hatred,
the 
likelihood of the filing of a greater charge, the likelihood of

conviction, the sentence applicable upon conviction, the 
weight of the evidence
against such defendant, whether there 
exists motivation or ability to
flee, whether there is any 
verification as to prior residence, education,
or family ties 
in the local jurisdiction, in another county,
state or foreign 
country, the defendant's employment, financial resources,

character and mental condition, past conduct, prior use of 
alias names or
dates of birth, and length of residence in the 
community,
the consent of the defendant to periodic drug 
testing in accordance with
Section 110-6.5,
whether a foreign 
national defendant is lawfully admitted in the United
States of 
America, whether the government of the foreign national

maintains an extradition treaty with the United States by which 
the foreign
government will extradite to the United States its 
national for a trial for
a crime allegedly committed in the 
United States, whether the defendant is
currently subject to 
deportation or exclusion under the immigration laws of
the 
United States, whether the defendant, although a United States 
citizen,
is considered under the law of any foreign state a 
national of that state
for the purposes of extradition or 
non-extradition to the United States,
the amount of unrecovered 
proceeds lost as a result of
the alleged offense, the
source of 
bail funds tendered or sought to be tendered for bail,
whether 
from the totality of the court's consideration,
the loss of 
funds posted or sought to be posted for bail will not deter the

defendant from flight, whether the evidence shows that the 
defendant is
engaged in significant
possession, manufacture, 
or delivery of a controlled substance or cannabis,
either 
individually or in consort with others,
whether at the time of 
the offense
charged he or she was on bond or pre-trial release 
pending trial, probation,
periodic imprisonment or conditional 
discharge pursuant to this Code or the
comparable Code of any 
other state or federal jurisdiction, whether the
defendant is 
on bond or
pre-trial release pending the imposition or 
execution of sentence or appeal of
sentence for any offense 
under the laws of Illinois or any other state or
federal 
jurisdiction, whether the defendant is under parole, aftercare 
release, mandatory
supervised release, or
work release from the 
Illinois Department of Corrections or Illinois Department of 
Juvenile Justice or any penal
institution or corrections 
department of any state or federal
jurisdiction, the 
defendant's record of convictions, whether the defendant has 
been
convicted of a misdemeanor or ordinance offense in 
Illinois or similar
offense in other state or federal 
jurisdiction within the 10 years
preceding the current charge 
or convicted of a felony in Illinois, whether
the defendant was 
convicted of an offense in another state or federal

jurisdiction that would
be a felony if committed in Illinois 
within the 20 years preceding the
current charge or has been 
convicted of such felony and released from the
penitentiary 
within 20 years preceding the current charge if a
penitentiary 
sentence was imposed in Illinois or other state or federal

jurisdiction, the defendant's records of juvenile adjudication 
of delinquency in any
jurisdiction, any record of appearance or 
failure to appear by
the defendant at
court proceedings, 
whether there was flight to avoid arrest or
prosecution, 
whether the defendant escaped or
attempted to escape to avoid 
arrest, whether the defendant refused to
identify himself or 
herself, or whether there was a refusal by the defendant to be

fingerprinted as required by law.  Information used by the court 
in its
findings or stated in or
offered in connection with this 
Section may be by way of proffer based upon
reliable 
information offered by the State or defendant.
All evidence 
shall be admissible if it is relevant and
reliable regardless 
of whether it would be admissible under the rules of
evidence 
applicable at criminal trials.
If the State presents evidence 
that the offense committed by the defendant
was related to or 
in furtherance of the criminal activities of an organized
gang 
or was motivated by the defendant's membership in or allegiance 
to an
organized gang, and if the court determines that the 
evidence may be
substantiated, the court shall prohibit the 
defendant from associating with
other members of the organized 
gang as a condition of bail or release.
For the purposes of 
this Section,
"organized gang" has the meaning ascribed to it 
in Section 10 of the Illinois
Streetgang Terrorism Omnibus 
Prevention Act.

    (b) The amount of bail shall be:


        (1) Sufficient to assure compliance with the 
    conditions set forth in the
bail bond, which shall include 
    the defendant's current address with a written

    admonishment to the defendant that he or she must comply 
    with the provisions of
Section 110-12 regarding any change 
    in his or her address.  The defendant's
address shall at all 
    times remain a matter of public record with the clerk
of 
    the court.


        (2) Not oppressive.


        (3) Considerate of the financial ability of the 
    accused.


        (4) When a person is charged with a drug related 
    offense involving
possession or delivery of cannabis or 
    possession or delivery of a
controlled substance as defined 
    in the Cannabis Control Act,
the Illinois Controlled 
    Substances Act, or the Methamphetamine Control and 
    Community Protection Act, the full street value
of the 
    drugs seized shall be considered.  "Street value" shall be

    determined by the court on the basis of a proffer by the 
    State based upon
reliable information of a law enforcement 
    official contained in a written
report as to the amount 
    seized and such proffer may be used by the court as
to the 
    current street value of the smallest unit of the drug 
    seized.

    (b-5) Upon the  filing of a written request demonstrating 
reasonable cause, the State's Attorney may request a source of 
bail hearing either before or after the posting of any funds.


If the hearing is granted, before the posting of any bail, the 
accused must file a written notice requesting that the court 
conduct a source of bail hearing. The notice must be 
accompanied by justifying affidavits stating the legitimate 
and lawful source of funds for bail.  At the hearing, the court 
shall inquire into any matters stated in any justifying 
affidavits, and may also inquire into matters appropriate to 
the determination which shall include, but are not limited to, 
the following:
        (1) the background, character, reputation, and 
    relationship to the accused of any surety; and
        (2) the source of any money or property deposited by 
    any surety, and whether any such money or property 
    constitutes the fruits of criminal or unlawful conduct; and
        (3) the source of any money posted as cash bail, and 
    whether any such money constitutes the fruits of criminal 
    or unlawful conduct; and
        (4) the background, character, reputation, and 
    relationship to the accused of the person posting cash 
    bail.
    Upon setting the hearing, the court shall examine, under 
oath, any persons who may possess material information.
    The State's Attorney has a right to attend the hearing, to 
call witnesses and to examine any witness in the proceeding.  
The court shall, upon request of the State's Attorney, continue 
the proceedings for a reasonable period to allow the State's 
Attorney to investigate the matter raised in any testimony or 
affidavit.

If the hearing is granted after the accused has 
posted bail, the court shall conduct a hearing consistent with 
this subsection (b-5).    At the conclusion of the hearing, the 
court must issue an order either approving of disapproving the 
bail.

    (c) When a person is charged with an offense punishable by 
fine only the
amount of the bail shall not exceed double the 
amount of the maximum penalty.

    (d) When a person has been convicted of an offense and only 
a fine has
been imposed the amount of the bail shall not exceed 
double the amount of
the fine.

    (e) The State may appeal any order granting bail or setting

a given amount for bail.
    (f)  When a person  is charged with a violation of an order 
of protection  under Section 12-3.4 or 12-30 of the Criminal 
Code of 1961 or the Criminal Code of 2012 or when a person is 
charged with domestic battery, aggravated domestic battery, 
kidnapping, aggravated kidnaping, unlawful restraint, 
aggravated unlawful restraint, stalking, aggravated stalking, 
cyberstalking, harassment by telephone, harassment through 
electronic communications, or an attempt to commit first degree 
murder committed against an intimate partner regardless 
whether an order of protection has been issued against the 
person, 
        (1) whether the alleged incident involved harassment 
    or abuse, as defined in the Illinois Domestic Violence Act 
    of 1986;
        (2) whether the person has a history of domestic 
    violence, as defined in the Illinois Domestic Violence Act, 
    or a history of other criminal acts;
        (3) based on the mental health of the person;
        (4) whether the person has a history of violating the 
    orders of any court or governmental entity;
        (5) whether the person has been, or is, potentially a 
    threat to any other person;
        (6) whether the person has access to deadly weapons or 
    a history of using deadly weapons;
        (7) whether the person has a history of abusing alcohol 
    or any controlled substance;
        (8) based on the severity of the alleged incident that 
    is the basis of the alleged offense, including, but not 
    limited to, the duration of the current incident, and 
    whether the alleged incident involved the use of a weapon, 
    physical injury, sexual assault, strangulation, abuse 
    during the alleged victim's pregnancy, abuse of pets, or 
    forcible entry to gain access to the alleged victim;
        (9) whether a separation of the person from the alleged 
    victim or a termination of the relationship between the 
    person and the alleged victim has recently occurred or is 
    pending;
        (10) whether the person has exhibited obsessive or 
    controlling behaviors toward the alleged victim, 
    including, but not limited to, stalking, surveillance, or 
    isolation of the alleged victim or victim's family member 
    or members; 
        (11) whether the person has expressed suicidal or 
    homicidal ideations;
        (12) based on any information contained in the 
    complaint and any police reports, affidavits, or other 
    documents accompanying the complaint, 
the court may, in its discretion, order the respondent 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.  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. Based on the information 
collected from the 12 points to be considered at a bail hearing 
under this subsection (f) for a violation of an order of 
protection, the results of any risk evaluation conducted and 
the other circumstances of the violation, the court may order 
that the person, as a condition of bail, be placed under 
electronic surveillance as provided in Section 5-8A-7 of the 
Unified Code of Corrections. Upon making a determination 
whether or not to order  the respondent to undergo a risk 
assessment evaluation or to be placed under electronic 
surveillance and risk assessment, the court shall document in 
the record the court's reasons for making those determinations.  
The cost of the electronic surveillance and risk assessment 
shall be paid by, or on behalf, of  the defendant. As used in 
this subsection (f), "intimate partner" means a spouse or a 
current or former partner in a cohabitation or dating 
relationship. 

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