Full Text of HB4886 94th General Assembly
HB4886 94TH GENERAL ASSEMBLY
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94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006 HB4886
Introduced 1/19/2006, by Rep. Michael P. McAuliffe SYNOPSIS AS INTRODUCED: |
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725 ILCS 5/110-4 |
from Ch. 38, par. 110-4 |
725 ILCS 5/110-6.4 new |
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Amends the Code of Criminal Procedure of 1963. Provides that a person 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, (vi) aggravated participation in methamphetamine manufacturing under subparagraph (F) of paragraph (1) of subsection (b) of Section 15 of the Methamphetamine Control and Community Protection Act (participation in the manufacture of methamphetamine with the intent that methamphetamine or a substance containing methamphetamine be produced and the methamphetamine manufacturing in which the person participates is a contributing cause to a fire or explosion that damages property belonging to another person), or (vii) 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, bail may be denied. Establishes procedures for that hearing.
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A BILL FOR
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HB4886 |
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LRB094 16022 RLC 51257 b |
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| AN ACT concerning criminal law.
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| Be it enacted by the People of the State of Illinois, | 3 |
| represented in the General Assembly:
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| Section 5. The Code of Criminal Procedure of 1963 is | 5 |
| amended by changing Section 110-4 and by adding Section 110-6.4 | 6 |
| as follows:
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| (725 ILCS 5/110-4) (from Ch. 38, par. 110-4)
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| Sec. 110-4. Bailable Offenses.
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| (a) All persons shall be bailable before conviction, except | 10 |
| the
following offenses where the proof is evident or the | 11 |
| presumption great that
the defendant is guilty of the offense: | 12 |
| capital offenses; offenses for
which a sentence of life | 13 |
| imprisonment may be imposed as a consequence of
conviction; | 14 |
| felony offenses for which a sentence of imprisonment,
without | 15 |
| conditional and revocable release, shall be imposed
by law as a | 16 |
| consequence of conviction, where the court after a hearing,
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| determines that the release of the defendant would pose a real | 18 |
| and present
threat to the physical safety of any person or | 19 |
| persons; stalking or
aggravated stalking, where the court, | 20 |
| after a hearing, determines that the
release of the defendant | 21 |
| would pose a real and present threat to the
physical safety of | 22 |
| the alleged victim of the offense and denial of bail
is | 23 |
| necessary to prevent fulfillment of the threat upon which the | 24 |
| charge
is based;
or unlawful use of weapons in violation of | 25 |
| item (4) of subsection (a) of
Section 24-1 of the
Criminal Code | 26 |
| of 1961 when that offense occurred in a school or in any
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| conveyance owned,
leased, or contracted by a school to | 28 |
| transport students to or from school or a
school-related
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| activity, or on any public way within 1,000 feet of real | 30 |
| property comprising
any school, where
the court, after a | 31 |
| hearing, determines that the release of the defendant would
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| pose a real and
present threat to the physical safety of any |
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HB4886 |
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LRB094 16022 RLC 51257 b |
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| person and denial of bail is
necessary to prevent
fulfillment | 2 |
| of that threat ; or an offense for which the person, upon | 3 |
| conviction, would be subject to registration under the Arsonist | 4 |
| Registration Act if the person has previously been convicted of | 5 |
| any of the following offenses: (i) arson, (ii) aggravated | 6 |
| arson, (iii) residential arson, (iv) place of worship arson, | 7 |
| (v) possession of explosives or explosive or incendiary | 8 |
| devices, (vi) aggravated participation in methamphetamine | 9 |
| manufacturing under subparagraph (F) of paragraph (1) of | 10 |
| subsection (b) of Section 15 of the Methamphetamine Control and | 11 |
| Community Protection Act, or (vii) an attempt to commit any of | 12 |
| these offenses and if the the court, after a hearing, | 13 |
| determines that the release of the defendant would
pose a real | 14 |
| and
present threat to the physical safety of any person and | 15 |
| denial of bail is
necessary to prevent
fulfillment of that | 16 |
| threat .
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| (b) A person seeking release on bail who is charged with a | 18 |
| capital
offense or an offense for which a sentence of life | 19 |
| imprisonment may be
imposed shall not be bailable until a | 20 |
| hearing is held wherein such person
has the burden of | 21 |
| demonstrating that the proof of his guilt is not evident
and | 22 |
| the presumption is not great.
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| (c) Where it is alleged that bail should be denied to a | 24 |
| person upon the
grounds that the person presents a real and | 25 |
| present threat to the physical
safety of any person or persons, | 26 |
| the burden of proof of such allegations
shall be upon the | 27 |
| State.
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| (d) When it is alleged that bail should be denied to a | 29 |
| person
charged with stalking or aggravated stalking upon the | 30 |
| grounds set forth in
Section 110-6.3 of this Code, the burden | 31 |
| of proof of those allegations shall be
upon the State.
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| (e) When it is alleged that bail should be denied to a | 33 |
| person
charged with arson, aggravated arson, residential | 34 |
| arson, place of worship arson, possession of explosives or | 35 |
| explosive or incendiary devices, aggravated participation in | 36 |
| methamphetamine manufacturing under subparagraph (F) of |
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HB4886 |
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LRB094 16022 RLC 51257 b |
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| paragraph (1) of subsection (b) of Section 15 of the | 2 |
| Methamphetamine Control and Community Protection Act | 3 |
| (participation in the manufacture of methamphetamine with the | 4 |
| intent that methamphetamine or a substance containing | 5 |
| methamphetamine be produced and the methamphetamine | 6 |
| manufacturing in which the person participates is a | 7 |
| contributing cause to a fire or explosion that damages property | 8 |
| belonging to another person), or an attempt to commit any of | 9 |
| these offenses upon the grounds set forth in
Section 110-6.4 of | 10 |
| this Code, the burden of proof of those allegations shall be
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| upon the State.
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| (Source: P.A. 91-11, eff. 6-4-99.)
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| (725 ILCS 5/110-6.4 new) | 14 |
| Sec. 110-6.4. Denial of bail for certain arson offenses. | 15 |
| (a) Upon verified petition by the State, the court shall | 16 |
| hold a
hearing to determine whether bail should be denied to a | 17 |
| defendant who is
charged with
an offense for which the person, | 18 |
| upon conviction, would be subject to registration under the | 19 |
| Arsonist Registration Act if the person has previously been | 20 |
| convicted of any of the following offenses: (i) arson, (ii) | 21 |
| aggravated arson, (iii) residential arson, (iv) place of | 22 |
| worship arson, (v) possession of explosives or explosive or | 23 |
| incendiary devices, (vi) aggravated participation in | 24 |
| methamphetamine manufacturing under subparagraph (F) of | 25 |
| paragraph (1) of subsection (b) of Section 15 of the | 26 |
| Methamphetamine Control and Community Protection Act, or (vii) | 27 |
| an attempt to commit any of these offenses, when it is alleged | 28 |
| that the defendant's
admission to bail poses a real and present | 29 |
| threat to the physical safety of
any person, and denial of | 30 |
| release on bail or
personal recognizance is necessary to | 31 |
| prevent fulfillment of the threat
upon which the charge is | 32 |
| based. | 33 |
| (1) A petition may be filed without prior notice to the | 34 |
| defendant at the
first appearance before a judge, or within | 35 |
| 21 calendar days, except as
provided in Section 110-6, |
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HB4886 |
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LRB094 16022 RLC 51257 b |
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| after arrest and release of the defendant upon
reasonable | 2 |
| notice to the defendant; provided that while the petition | 3 |
| is
pending before the court, the defendant if previously | 4 |
| released shall not be
detained. | 5 |
| (2) The hearing shall be held immediately upon the | 6 |
| defendant's
appearance before the court, unless for good | 7 |
| cause shown the defendant or
the State seeks a continuance. | 8 |
| A continuance on motion of the defendant
may not exceed 5 | 9 |
| calendar days, and the defendant may be held in custody
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| during the continuance. A continuance on the motion of the | 11 |
| State may not
exceed 3 calendar days. | 12 |
| (b) The court may deny bail to the defendant when, after | 13 |
| the hearing, it
is determined that: | 14 |
| (1) the proof is evident or the presumption great that | 15 |
| the defendant has
committed the offense of arson, | 16 |
| aggravated arson, residential arson, place of worship | 17 |
| arson, possession of explosives or explosive or incendiary | 18 |
| devices, aggravated participation in methamphetamine | 19 |
| manufacturing under subparagraph (F) of paragraph (1) of | 20 |
| subsection (b) of Section 15 of the Methamphetamine Control | 21 |
| and Community Protection Act, or an attempt to commit any | 22 |
| of these offenses; and | 23 |
| (2) the defendant poses a real and present threat to | 24 |
| the physical safety
of any person; and | 25 |
| (3) the denial of release on bail or personal | 26 |
| recognizance is
necessary to prevent fulfillment of the | 27 |
| threat upon which the charge is based;
and | 28 |
| (4) the court finds that no condition or combination of | 29 |
| conditions set
forth in subsection (b) of Section 110-10 of | 30 |
| this Code, including mental
health treatment at a community | 31 |
| mental health center, hospital, or
facility of the | 32 |
| Department of Human Services,
can reasonably assure the | 33 |
| physical safety of any person. | 34 |
| (c) Conduct of the hearings. | 35 |
| (1) The hearing on the defendant's culpability and | 36 |
| threat to the
public shall be
conducted in accordance with |
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HB4886 |
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LRB094 16022 RLC 51257 b |
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| the following provisions: | 2 |
| (A) Information used by the court in its findings | 3 |
| or stated in or
offered
at the hearing may be by way of | 4 |
| proffer based upon reliable information
offered by the | 5 |
| State or by the defendant. The defendant has the right | 6 |
| to be
represented by counsel, and if he or she is | 7 |
| indigent, to have counsel appointed
for him or her. The | 8 |
| defendant shall have the opportunity to testify, to | 9 |
| present
witnesses in his or her own behalf, and to | 10 |
| cross-examine witnesses if any are
called by the State. | 11 |
| The defendant has the right to present witnesses in
his | 12 |
| or her favor. When the ends of justice so require, the | 13 |
| court may exercise
its discretion and compel the | 14 |
| appearance of a complaining
witness. The court shall | 15 |
| state on the record reasons for granting a
defense | 16 |
| request to compel the presence of a complaining | 17 |
| witness.
Cross-examination of a complaining witness at | 18 |
| the pretrial detention hearing for
the purpose of | 19 |
| impeaching the witness' credibility is insufficient | 20 |
| reason
to compel the presence of the witness. In | 21 |
| deciding whether to compel the
appearance of a | 22 |
| complaining witness, the court shall be considerate of | 23 |
| the
emotional and physical well-being of the witness.
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| The pretrial detention hearing is not to be used for | 25 |
| the purposes of
discovery, and the post arraignment | 26 |
| rules of discovery do not apply. The
State shall tender | 27 |
| to the
defendant, prior to the hearing, copies of | 28 |
| defendant's criminal history, if
any, if available, | 29 |
| and any written or recorded statements and the | 30 |
| substance
of any oral statements made by any person, if | 31 |
| relied upon by the State.
The rules concerning the | 32 |
| admissibility of evidence in
criminal trials do not | 33 |
| apply to the presentation and consideration of
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| information at the hearing. At the trial concerning the | 35 |
| offense for which
the hearing was conducted neither the | 36 |
| finding of the court nor any
transcript or other record |
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HB4886 |
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LRB094 16022 RLC 51257 b |
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| of the hearing shall be admissible in the
State's case | 2 |
| in chief, but shall be admissible for impeachment, or | 3 |
| as
provided in Section 115-10.1 of this Code, or in a | 4 |
| perjury proceeding. | 5 |
| (B) A motion by the defendant to suppress evidence | 6 |
| or to suppress a
confession shall not be entertained. | 7 |
| Evidence that proof may have been
obtained as the | 8 |
| result of an unlawful search and seizure or through
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| improper interrogation is not relevant to this state of | 10 |
| the prosecution. | 11 |
| (2) The facts relied upon by the court to support a | 12 |
| finding that: | 13 |
| (A) the
defendant poses a real and present threat | 14 |
| to the physical safety of any person; and | 15 |
| (B) the denial of release on bail or personal
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| recognizance is necessary to prevent fulfillment of | 17 |
| the threat upon which
the charge is based; | 18 |
| shall be supported by clear and convincing evidence
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| presented by the State. | 20 |
| (d) Factors to be considered in making a determination of | 21 |
| the threat to
the public.
The court may, in determining whether | 22 |
| the defendant poses, at the time of
the hearing, a real and
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| present threat to the physical safety of any person,
consider | 24 |
| but
shall not be limited to evidence or testimony concerning: | 25 |
| (1) the nature and circumstances of the offense | 26 |
| charged; | 27 |
| (2) the history and characteristics of the defendant | 28 |
| including: | 29 |
| (A) any evidence of the defendant's prior criminal | 30 |
| history indicative of
violent, abusive or assaultive | 31 |
| behavior, or lack of that behavior. The
evidence may | 32 |
| include testimony or documents received in juvenile
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| proceedings, criminal, quasi-criminal, civil | 34 |
| commitment, domestic relations
or other proceedings; | 35 |
| (B) any evidence of the defendant's psychological, | 36 |
| psychiatric or other
similar social history that tends |
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HB4886 |
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LRB094 16022 RLC 51257 b |
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| to indicate a violent, abusive, or
assaultive nature, | 2 |
| or lack of any such history. | 3 |
| (3) the nature of the threat which is the basis of the | 4 |
| charge against the defendant; | 5 |
| (4) any statements made by, or attributed to the | 6 |
| defendant, together with
the circumstances surrounding | 7 |
| them; | 8 |
| (5) whether the defendant is known to possess or have | 9 |
| access to any
weapon or weapons; | 10 |
| (6) whether, at the time of the current offense or any | 11 |
| other offense or
arrest, the defendant was on probation, | 12 |
| parole, mandatory supervised
release or other release from | 13 |
| custody pending trial, sentencing, appeal or
completion of | 14 |
| sentence for an offense under federal or state law; | 15 |
| (7) any other factors, including those listed in | 16 |
| Section 110-5 of this
Code, deemed by the court to have a | 17 |
| reasonable bearing upon the
defendant's propensity or | 18 |
| reputation for violent, abusive or assaultive
behavior, or | 19 |
| lack of that behavior. | 20 |
| (e) The court shall, in any order denying bail to a person | 21 |
| charged with arson, aggravated arson, residential arson, place | 22 |
| of worship arson, possession of explosives or explosive or | 23 |
| incendiary devices, aggravated participation in | 24 |
| methamphetamine manufacturing under subparagraph (F) of | 25 |
| paragraph (1) of subsection (b) of Section 15 of the | 26 |
| Methamphetamine Control and Community Protection Act, or an | 27 |
| attempt to commit any of these offenses: | 28 |
| (1) briefly summarize the evidence of the defendant's | 29 |
| culpability and its
reasons for concluding that the | 30 |
| defendant should be held without bail; | 31 |
| (2) direct that the defendant be committed to the | 32 |
| custody of the sheriff
for confinement in the county jail | 33 |
| pending trial; | 34 |
| (3) direct that the defendant be given a reasonable | 35 |
| opportunity for
private consultation with counsel, and for | 36 |
| communication with others of his
choice by visitation, mail |
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HB4886 |
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LRB094 16022 RLC 51257 b |
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| and telephone; and | 2 |
| (4) direct that the sheriff deliver the defendant as | 3 |
| required for
appearances in connection with court | 4 |
| proceedings. | 5 |
| (f) If the court enters an order for the detention of the | 6 |
| defendant
under subsection (e) of this Section, the defendant | 7 |
| shall be brought to
trial on the offense for which he or she is | 8 |
| detained within 90 days after the date
on which the order for | 9 |
| detention was entered. If the defendant is not
brought to trial | 10 |
| within the 90 day period required by this subsection (f),
he or | 11 |
| she shall not be held longer without bail. In computing the 90 | 12 |
| day period,
the court shall omit any period of delay resulting | 13 |
| from a continuance
granted at the request of the defendant.
The | 14 |
| court shall immediately notify the alleged victim of the | 15 |
| offense that the defendant
has been admitted to bail under this | 16 |
| subsection. | 17 |
| (g) Any person shall be entitled to appeal any
order | 18 |
| entered under this Section denying bail to the defendant. | 19 |
| (h) The State may appeal any order entered under this | 20 |
| Section denying any
motion for denial of bail. | 21 |
| (i) Nothing in this Section shall be construed as modifying | 22 |
| or limiting
in any way the defendant's presumption of innocence | 23 |
| in further criminal
proceedings.
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