HB2900ham001 94TH GENERAL ASSEMBLY

Rep. Michael P. McAuliffe

Filed: 3/15/2005

09400HB2900ham001 LRB094 05421 RLC 42974 a

AMENDMENT TO HOUSE BILL 2900

AMENDMENT NO. ______. Amend House Bill 2900 by replacing everything after the enacting clause with the following:

"Section 5. The Code of Criminal Procedure of 1963 is amended by changing Section 110-4 and by adding Section 110-6.4 as follows:

(725 ILCS 5/110-4) (from Ch. 38, par. 110-4)

Sec. 110-4. Bailable Offenses.

(a) All persons shall be bailable before conviction, except the following offenses where the proof is evident or the presumption great that the defendant is guilty of the offense: capital offenses; offenses for which a sentence of life imprisonment may be imposed as a consequence of conviction; felony offenses for which a sentence of imprisonment, without conditional and revocable release, shall be imposed by law as a consequence of conviction, where the court after a hearing, determines that the release of the defendant would pose a real and present threat to the physical safety of any person or persons; stalking or aggravated stalking, where the court, after a hearing, determines that the release of the defendant would pose a real and present threat to the physical safety of the alleged victim of the offense and denial of bail is necessary to prevent fulfillment of the threat upon which the charge is based; or unlawful use of weapons in violation of item (4) of subsection (a) of Section 24-1 of the Criminal Code of 1961 when that offense occurred in a school or in any conveyance owned, leased, or contracted by a school to transport students to or from school or a school-related activity, or on any public way within 1,000 feet of real property comprising any school, where the court, after a hearing, determines that the release of the defendant would pose a real and present threat to the physical safety of any person and denial of bail is necessary to prevent fulfillment of that threat; or an offense for which the person, upon conviction, would be subject to registration under the Arsonist Registration Act if the person has previously been convicted of any of the following offenses: (i) arson, (ii) aggravated arson, (iii) residential arson, (iv) place of worship arson, (v) possession of explosives or explosive or incendiary devices, or (vi) an attempt to commit any of these offenses and if the the court, after a hearing, determines that the release of the defendant would pose a real and present threat to the physical safety of any person and denial of bail is necessary to prevent fulfillment of that threat.

(b) A person seeking release on bail who is charged with a capital offense or an offense for which a sentence of life imprisonment may be imposed shall not be bailable until a hearing is held wherein such person has the burden of demonstrating that the proof of his guilt is not evident and the presumption is not great.

(c) Where it is alleged that bail should be denied to a person upon the grounds that the person presents a real and present threat to the physical safety of any person or persons, the burden of proof of such allegations shall be upon the State.

(d) When it is alleged that bail should be denied to a person charged with stalking or aggravated stalking upon the grounds set forth in Section 110-6.3 of this Code, the burden of proof of those allegations shall be upon the State.

(e) When it is alleged that bail should be denied to a person charged with arson, aggravated arson, residential arson, place of worship arson, possession of explosives or explosive or incendiary devices, or an attempt to commit any of these offenses upon the grounds set forth in Section 110-6.4 of this Code, the burden of proof of those allegations shall be upon the State.

(Source: P.A. 91-11, eff. 6-4-99.)

(725 ILCS 5/110-6.4 new)

Sec. 110-6.4. Denial of bail for certain arson offenses.

(a) Upon verified petition by the State, the court shall hold a hearing to determine whether bail should be denied to a defendant who is charged with an offense for which the person, upon conviction, would be subject to registration under the Arsonist Registration Act if the person has previously been convicted of any of the following offenses: (i) arson, (ii) aggravated arson, (iii) residential arson, (iv) place of worship arson, (v) possession of explosives or explosive or incendiary devices, or (vi) an attempt to commit any of these offenses, when it is alleged that the defendant's admission to bail poses a real and present threat to the physical safety of any person, and denial of release on bail or personal recognizance is necessary to prevent fulfillment of the threat upon which the charge is based.

(1) A petition may be filed without prior notice to the defendant at the first appearance before a judge, or within 21 calendar days, except as provided in Section 110-6, after arrest and release of the defendant upon reasonable notice to the defendant; provided that while the petition is pending before the court, the defendant if previously released shall not be detained.

(2) The hearing shall be held immediately upon the defendant's appearance before the court, unless for good cause shown the defendant or the State seeks a continuance. A continuance on motion of the defendant may not exceed 5 calendar days, and the defendant may be held in custody during the continuance. A continuance on the motion of the State may not exceed 3 calendar days.

(b) The court may deny bail to the defendant when, after the hearing, it is determined that:

(1) the proof is evident or the presumption great that the defendant has committed the offense of arson, aggravated arson, residential arson, place of worship arson, possession of explosives or explosive or incendiary devices, or an attempt to commit any of these offenses; and

(2) the defendant poses a real and present threat to the physical safety of any person; and

(3) the denial of release on bail or personal recognizance is necessary to prevent fulfillment of the threat upon which the charge is based; and

(4) the court finds that no condition or combination of conditions set forth in subsection (b) of Section 110-10 of this Code, including mental health treatment at a community mental health center, hospital, or facility of the Department of Human Services, can reasonably assure the physical safety of any person.

(c) Conduct of the hearings.

(1) The hearing on the defendant's culpability and threat to the public shall be conducted in accordance with the following provisions:

(A) Information used by the court in its findings or stated in or offered at the hearing may be by way of proffer based upon reliable information offered by the State or by defendant. The defendant has the right to be represented by counsel, and if he or she is indigent, to have counsel appointed for him or her. The defendant shall have the opportunity to testify, to present witnesses in his or her own behalf, and to cross-examine witnesses if any are called by the State. The defendant has the right to present witnesses in his or her favor. When the ends of justice so require, the court may exercise its discretion and compel the appearance of a complaining witness. The court shall state on the record reasons for granting a defense request to compel the presence of a complaining witness. Cross-examination of a complaining witness at the pretrial detention hearing for the purpose of impeaching the witness' credibility is insufficient reason to compel the presence of the witness. In deciding whether to compel the appearance of a complaining witness, the court shall be considerate of the emotional and physical well-being of the witness. The pretrial detention hearing is not to be used for the purposes of discovery, and the post arraignment rules of discovery do not apply. The State shall tender to the defendant, prior to the hearing, copies of defendant's criminal history, if any, if available, and any written or recorded statements and the substance of any oral statements made by any person, if relied upon by the State. The rules concerning the admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing. At the trial concerning the offense for which the hearing was conducted neither the finding of the court nor any transcript or other record of the hearing shall be admissible in the State's case in chief, but shall be admissible for impeachment, or as provided in Section 115-10.1 of this Code, or in a perjury proceeding.

(B) A motion by the defendant to suppress evidence or to suppress a confession shall not be entertained. Evidence that proof may have been obtained as the result of an unlawful search and seizure or through improper interrogation is not relevant to this state of the prosecution.

(2) The facts relied upon by the court to support a finding that:

(A) the defendant poses a real and present threat to the physical safety of any person; and

(B) the denial of release on bail or personal recognizance is necessary to prevent fulfillment of the threat upon which the charge is based;

shall be supported by clear and convincing evidence presented by the State.

(d) Factors to be considered in making a determination of the threat to the public. The court may, in determining whether the defendant poses, at the time of the hearing, a real and present threat to the physical safety of any person, consider but shall not be limited to evidence or testimony concerning:

(1) the nature and circumstances of the offense charged;

(2) the history and characteristics of the defendant including:

(A) any evidence of the defendant's prior criminal history indicative of violent, abusive or assaultive behavior, or lack of that behavior. The evidence may include testimony or documents received in juvenile proceedings, criminal, quasi-criminal, civil commitment, domestic relations or other proceedings;

(B) any evidence of the defendant's psychological, psychiatric or other similar social history that tends to indicate a violent, abusive, or assaultive nature, or lack of any such history.

(3) the nature of the threat which is the basis of the charge against the defendant;

(4) any statements made by, or attributed to the defendant, together with the circumstances surrounding them;

(5) whether the defendant is known to possess or have access to any weapon or weapons;

(6) whether, at the time of the current offense or any other offense or arrest, the defendant was on probation, parole, mandatory supervised release or other release from custody pending trial, sentencing, appeal or completion of sentence for an offense under federal or state law;

(7) any other factors, including those listed in Section 110-5 of this Code, deemed by the court to have a reasonable bearing upon the defendant's propensity or reputation for violent, abusive or assaultive behavior, or lack of that behavior.

(e) The court shall, in any order denying bail to a person charged with arson, aggravated arson, residential arson, place of worship arson, possession of explosives or explosive or incendiary devices, or an attempt to commit any of these offenses:

(1) briefly summarize the evidence of the defendant's culpability and its reasons for concluding that the defendant should be held without bail;

(2) direct that the defendant be committed to the custody of the sheriff for confinement in the county jail pending trial;

(3) direct that the defendant be given a reasonable opportunity for private consultation with counsel, and for communication with others of his choice by visitation, mail and telephone; and

(4) direct that the sheriff deliver the defendant as required for appearances in connection with court proceedings.

(f) If the court enters an order for the detention of the defendant under subsection (e) of this Section, the defendant shall be brought to trial on the offense for which he or she is detained within 90 days after the date on which the order for detention was entered. If the defendant is not brought to trial within the 90 day period required by this subsection (f), he or she shall not be held longer without bail. In computing the 90 day period, the court shall omit any period of delay resulting from a continuance granted at the request of the defendant. The court shall immediately notify the alleged victim of the offense that the defendant has been admitted to bail under this subsection.

(g) Any person shall be entitled to appeal any order entered under this Section denying bail to the defendant.

(h) The State may appeal any order entered under this Section denying any motion for denial of bail.

(i) Nothing in this Section shall be construed as modifying or limiting in any way the defendant's presumption of innocence in further criminal proceedings.".