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Full Text of HB5867  102nd General Assembly

HB5867 102ND GENERAL ASSEMBLY

  
  

 


 
102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB5867

 

Introduced , by Rep. Jim Durkin

 

SYNOPSIS AS INTRODUCED:
 
725 ILCS 5/110-6.1  from Ch. 38, par. 110-6.1

    Amends the Code of Criminal Procedure of 1963. Deletes a provision that if the defense seeks to compel the complaining witness to testify as a witness in its favor in a hearing to deny pretrial release, it shall petition the court for permission. Deletes a provision that when the ends of justice so require, the court may exercise its discretion and compel the appearance of a complaining witness at a hearing to deny pretrial release.


LRB102 30144 RLC 42436 b

 

 

A BILL FOR

 

HB5867LRB102 30144 RLC 42436 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. References to Act; intent.
5    (a) This Act may be referred to as the Protect Our Victims
6(POV) Act.
7    (b) In 2022, the Illinois SAFE-T Act was enacted into law.
8One provision added, enhanced an accused's ability to compel a
9crime victim to appear at a detention hearing and be subject to
10cross-examination. These hearings are often conducted within
11days after the arrest of the accused. The wounds and trauma of
12the victims are fresh and devastating. We, as a State, have
13prioritized the rights of crime victims by statute and more
14importantly by constitutional amendment. In 2014, voters
15approved the Illinois Crime Victims' Bill of Rights (otherwise
16known as Marsy's Law). This constitutional provision states
17that crime victims have a right to be free from harassment,
18intimidation, and abuse throughout the court process.
19Subjecting a crime victim to be involuntarily called before a
20judge in a courtroom with the accused present for a detention
21hearing serves no purpose other than to traumatize the victim.
22This Act is consistent with our Constitution and deletes this
23ill-advised practice from our Code of Criminal Procedure of
241963. Illinois needs to stand-up for the countless victims of

 

 

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1crime.
 
2    Section 5. The Code of Criminal Procedure of 1963 is
3amended by changing Section 110-6.1 as follows:
 
4    (725 ILCS 5/110-6.1)  (from Ch. 38, par. 110-6.1)
5    Sec. 110-6.1. Denial of pretrial release.
6    (a) Upon verified petition by the State, the court shall
7hold a hearing and may deny a defendant pretrial release only
8if:
9        (1) the defendant is charged with a felony offense
10    other than a forcible felony for which, based on the
11    charge or the defendant's criminal history, a sentence of
12    imprisonment, without probation, periodic imprisonment or
13    conditional discharge, is required by law upon conviction,
14    and it is alleged that the defendant's pretrial release
15    poses a real and present threat to the safety of any person
16    or persons or the community, based on the specific
17    articulable facts of the case;
18        (1.5) the defendant's pretrial release poses a real
19    and present threat to the safety of any person or persons
20    or the community, based on the specific articulable facts
21    of the case, and the defendant is charged with a forcible
22    felony, which as used in this Section, means treason,
23    first degree murder, second degree murder, predatory
24    criminal sexual assault of a child, aggravated criminal

 

 

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1    sexual assault, criminal sexual assault, armed robbery,
2    aggravated robbery, robbery, burglary where there is use
3    of force against another person, residential burglary,
4    home invasion, vehicular invasion, aggravated arson,
5    arson, aggravated kidnaping, kidnaping, aggravated battery
6    resulting in great bodily harm or permanent disability or
7    disfigurement or any other felony which involves the
8    threat of or infliction of great bodily harm or permanent
9    disability or disfigurement;
10        (2) the defendant is charged with stalking or
11    aggravated stalking, and it is alleged that the
12    defendant's pre-trial release poses a real and present
13    threat to the safety of a victim of the alleged offense,
14    and denial of release is necessary to prevent fulfillment
15    of the threat upon which the charge is based;
16        (3) the defendant is charged with a violation of an
17    order of protection issued under Section 112A-14 of this
18    Code or Section 214 of the Illinois Domestic Violence Act
19    of 1986, a stalking no contact order under Section 80 of
20    the Stalking No Contact Order Act, or of a civil no contact
21    order under Section 213 of the Civil No Contact Order Act,
22    and it is alleged that the defendant's pretrial release
23    poses a real and present threat to the safety of any person
24    or persons or the community, based on the specific
25    articulable facts of the case;
26        (4) the defendant is charged with domestic battery or

 

 

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1    aggravated domestic battery under Section 12-3.2 or 12-3.3
2    of the Criminal Code of 2012 and it is alleged that the
3    defendant's pretrial release poses a real and present
4    threat to the safety of any person or persons or the
5    community, based on the specific articulable facts of the
6    case;
7        (5) the defendant is charged with any offense under
8    Article 11 of the Criminal Code of 2012, except for
9    Sections 11-14, 11-14.1, 11-18, 11-20, 11-30, 11-35,
10    11-40, and 11-45 of the Criminal Code of 2012, or similar
11    provisions of the Criminal Code of 1961 and it is alleged
12    that the defendant's pretrial release poses a real and
13    present threat to the safety of any person or persons or
14    the community, based on the specific articulable facts of
15    the case;
16        (6) the defendant is charged with any of the following
17    offenses under the Criminal Code of 2012, and it is
18    alleged that the defendant's pretrial release poses a real
19    and present threat to the safety of any person or persons
20    or the community, based on the specific articulable facts
21    of the case:
22            (A) Section 24-1.2 (aggravated discharge of a
23        firearm);
24            (B) Section 24-2.5 (aggravated discharge of a
25        machine gun or a firearm equipped with a device
26        designed or use for silencing the report of a

 

 

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1        firearm);
2            (C) Section 24-1.5 (reckless discharge of a
3        firearm);
4            (D) Section 24-1.7 (armed habitual criminal);
5            (E) Section 24-2.2 (manufacture, sale or transfer
6        of bullets or shells represented to be armor piercing
7        bullets, dragon's breath shotgun shells, bolo shells,
8        or flechette shells);
9            (F) Section 24-3 (unlawful sale or delivery of
10        firearms);
11            (G) Section 24-3.3 (unlawful sale or delivery of
12        firearms on the premises of any school);
13            (H) Section 24-34 (unlawful sale of firearms by
14        liquor license);
15            (I) Section 24-3.5 (unlawful purchase of a
16        firearm);
17            (J) Section 24-3A (gunrunning);
18            (K) Section 24-3B (firearms trafficking);
19            (L) Section 10-9 (b) (involuntary servitude);
20            (M) Section 10-9 (c) (involuntary sexual servitude
21        of a minor);
22            (N) Section 10-9(d) (trafficking in persons);
23            (O) Non-probationable violations: (i) unlawful use
24        or possession of weapons by felons or persons in the
25        Custody of the Department of Corrections facilities
26        (Section 24-1.1), (ii) aggravated unlawful use of a

 

 

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1        weapon (Section 24-1.6), or (iii) aggravated
2        possession of a stolen firearm (Section 24-3.9);
3            (P) Section 9-3 (reckless homicide and involuntary
4        manslaughter);
5            (Q) Section 19-3 (residential burglary);
6            (R) Section 10-5 (child abduction);
7            (S) Felony violations of Section 12C-5 (child
8        endangerment);
9            (T) Section 12-7.1 (hate crime);
10            (U) Section 10-3.1 (aggravated unlawful
11        restraint);
12            (V) Section 12-9 (threatening a public official);
13            (W) Subdivision (f)(1) of Section 12-3.05
14        (aggravated battery with a deadly weapon other than by
15        discharge of a firearm);
16        (6.5) the defendant is charged with any of the
17    following offenses, and it is alleged that the defendant's
18    pretrial release poses a real and present threat to the
19    safety of any person or persons or the community, based on
20    the specific articulable facts of the case:
21            (A) Felony violations of Sections 3.01, 3.02, or
22        3.03 of the Humane Care for Animals Act (cruel
23        treatment, aggravated cruelty, and animal torture);
24            (B) Subdivision (d)(1)(B) of Section 11-501 of the
25        Illinois Vehicle Code (aggravated driving under the
26        influence while operating a school bus with

 

 

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1        passengers);
2            (C) Subdivision (d)(1)(C) of Section 11-501 of the
3        Illinois Vehicle Code (aggravated driving under the
4        influence causing great bodily harm);
5            (D) Subdivision (d)(1)(D) of Section 11-501 of the
6        Illinois Vehicle Code (aggravated driving under the
7        influence after a previous reckless homicide
8        conviction);
9            (E) Subdivision (d)(1)(F) of Section 11-501 of the
10        Illinois Vehicle Code (aggravated driving under the
11        influence leading to death); or
12            (F) Subdivision (d)(1)(J) of Section 11-501 of the
13        Illinois Vehicle Code (aggravated driving under the
14        influence that resulted in bodily harm to a child
15        under the age of 16);
16        (7) the defendant is charged with an attempt to commit
17    any charge listed in paragraphs (1) through (6.5), and it
18    is alleged that the defendant's pretrial release poses a
19    real and present threat to the safety of any person or
20    persons or the community, based on the specific
21    articulable facts of the case; or
22        (8) the person has a high likelihood of willful flight
23    to avoid prosecution and is charged with:
24            (A) Any felony described in subdivisions (a)(1)
25        through (a)(7) of this Section; or
26            (B) A felony offense other than a Class 4 offense.

 

 

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1    (b) If the charged offense is a felony, as part of the
2detention hearing, the court shall determine whether there is
3probable cause the defendant has committed an offense, unless
4a hearing pursuant to Section 109-3 of this Code has already
5been held or a grand jury has returned a true bill of
6indictment against the defendant. If there is a finding of no
7probable cause, the defendant shall be released. No such
8finding is necessary if the defendant is charged with a
9misdemeanor.
10    (c) Timing of petition.
11        (1) A petition may be filed without prior notice to
12    the defendant at the first appearance before a judge, or
13    within the 21 calendar days, except as provided in Section
14    110-6, after arrest and release of the defendant upon
15    reasonable notice to defendant; provided that while such
16    petition is pending before the court, the defendant if
17    previously released shall not be detained.
18        (2) Upon filing, the court shall immediately hold a
19    hearing on the petition unless a continuance is requested.
20    If a continuance is requested and granted, the hearing
21    shall be held within 48 hours of the defendant's first
22    appearance if the defendant is charged with first degree
23    murder or a Class X, Class 1, Class 2, or Class 3 felony,
24    and within 24 hours if the defendant is charged with a
25    Class 4 or misdemeanor offense. The Court may deny or
26    grant the request for continuance. If the court decides to

 

 

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1    grant the continuance, the Court retains the discretion to
2    detain or release the defendant in the time between the
3    filing of the petition and the hearing.
4    (d) Contents of petition.
5        (1) The petition shall be verified by the State and
6    shall state the grounds upon which it contends the
7    defendant should be denied pretrial release, including the
8    real and present threat to the safety of any person or
9    persons or the community, based on the specific
10    articulable facts or flight risk, as appropriate.
11        (2) If the State seeks to file a second or subsequent
12    petition under this Section, the State shall be required
13    to present a verified application setting forth in detail
14    any new facts not known or obtainable at the time of the
15    filing of the previous petition.
16    (e) Eligibility: All defendants shall be presumed eligible
17for pretrial release, and the State shall bear the burden of
18proving by clear and convincing evidence that:
19        (1) the proof is evident or the presumption great that
20    the defendant has committed an offense listed in
21    subsection (a), and
22        (2) for offenses listed in paragraphs (1) through (7)
23    of subsection (a), the defendant poses a real and present
24    threat to the safety of any person or persons or the
25    community, based on the specific articulable facts of the
26    case, by conduct which may include, but is not limited to,

 

 

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1    a forcible felony, the obstruction of justice,
2    intimidation, injury, or abuse as defined by paragraph (1)
3    of Section 103 of the Illinois Domestic Violence Act of
4    1986, and
5        (3) no condition or combination of conditions set
6    forth in subsection (b) of Section 110-10 of this Article
7    can mitigate (i) the real and present threat to the safety
8    of any person or persons or the community, based on the
9    specific articulable facts of the case, for offenses
10    listed in paragraphs (1) through (7) of subsection (a), or
11    (ii) the defendant's willful flight for offenses listed in
12    paragraph (8) of subsection (a), and
13        (4) for offenses under subsection (b) of Section 407
14    of the Illinois Controlled Substances Act that are subject
15    to paragraph (1) of subsection (a), no condition or
16    combination of conditions set forth in subsection (b) of
17    Section 110-10 of this Article can mitigate the real and
18    present threat to the safety of any person or persons or
19    the community, based on the specific articulable facts of
20    the case, and the defendant poses a serious risk to not
21    appear in court as required.
22    (f) Conduct of the hearings.
23        (1) Prior to the hearing, the State shall tender to
24    the defendant copies of the defendant's criminal history
25    available, any written or recorded statements, and the
26    substance of any oral statements made by any person, if

 

 

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1    relied upon by the State in its petition, and any police
2    reports in the prosecutor's possession at the time of the
3    hearing.
4        (2) The State or defendant may present evidence at the
5    hearing by way of proffer based upon reliable information.
6        (3) The defendant has the right to be represented by
7    counsel, and if he or she is indigent, to have counsel
8    appointed for him or her. The defendant shall have the
9    opportunity to testify, to present witnesses on his or her
10    own behalf, and to cross-examine any witnesses that are
11    called by the State. Defense counsel shall be given
12    adequate opportunity to confer with the defendant before
13    any hearing at which conditions of release or the
14    detention of the defendant are to be considered, with an
15    accommodation for a physical condition made to facilitate
16    attorney/client consultation. If defense counsel needs to
17    confer or consult with the defendant during any hearing
18    conducted via a two-way audio-visual communication system,
19    such consultation shall not be recorded and shall be
20    undertaken consistent with constitutional protections.
21        (3.5) A hearing at which pretrial release may be
22    denied must be conducted in person (and not by way of
23    two-way audio visual communication) unless the accused
24    waives the right to be present physically in court, the
25    court determines that the physical health and safety of
26    any person necessary to the proceedings would be

 

 

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1    endangered by appearing in court, or the chief judge of
2    the circuit orders use of that system due to operational
3    challenges in conducting the hearing in person. Such
4    operational challenges must be documented and approved by
5    the chief judge of the circuit, and a plan to address the
6    challenges through reasonable efforts must be presented
7    and approved by the Administrative Office of the Illinois
8    Courts every 6 months.
9        (4) If the defense seeks to compel the complaining
10    witness to testify as a witness in its favor, it shall
11    petition the court for permission. When the ends of
12    justice so require, the court may exercise its discretion
13    and compel the appearance of a complaining witness. The
14    court shall state on the record reasons for granting a
15    defense request to compel the presence of a complaining
16    witness only on the issue of the defendant's pretrial
17    detention. In making a determination under this Section,
18    the court shall state on the record the reason for
19    granting a defense request to compel the presence of a
20    complaining witness, and only grant the request if the
21    court finds by clear and convincing evidence that the
22    defendant will be materially prejudiced if the complaining
23    witness does not appear. Cross-examination of a
24    complaining witness at the pretrial detention hearing for
25    the purpose of impeaching the witness' credibility is
26    insufficient reason to compel the presence of the witness.

 

 

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1    In deciding whether to compel the appearance of a
2    complaining witness, the court shall be considerate of the
3    emotional and physical well-being of the witness. The
4    pre-trial detention hearing is not to be used for purposes
5    of discovery, and the post arraignment rules of discovery
6    do not apply. The State shall tender to the defendant,
7    prior to the hearing, copies, if any, of the defendant's
8    criminal history, if available, and any written or
9    recorded statements and the substance of any oral
10    statements made by any person, if in the State's
11    Attorney's possession at the time of the hearing.
12        (5) The rules concerning the admissibility of evidence
13    in criminal trials do not apply to the presentation and
14    consideration of information at the hearing. At the trial
15    concerning the offense for which the hearing was conducted
16    neither the finding of the court nor any transcript or
17    other record of the hearing shall be admissible in the
18    State's case-in-chief, but shall be admissible for
19    impeachment, or as provided in Section 115-10.1 of this
20    Code, or in a perjury proceeding.
21        (6) The defendant may not move to suppress evidence or
22    a confession, however, evidence that proof of the charged
23    crime may have been the result of an unlawful search or
24    seizure, or both, or through improper interrogation, is
25    relevant in assessing the weight of the evidence against
26    the defendant.

 

 

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1        (7) Decisions regarding release, conditions of
2    release, and detention prior to trial must be
3    individualized, and no single factor or standard may be
4    used exclusively to order detention. Risk assessment tools
5    may not be used as the sole basis to deny pretrial release.
6    (g) Factors to be considered in making a determination of
7dangerousness. The court may, in determining whether the
8defendant poses a real and present threat to the safety of any
9person or persons or the community, based on the specific
10articulable facts of the case, consider, but shall not be
11limited to, evidence or testimony concerning:
12        (1) The nature and circumstances of any offense
13    charged, including whether the offense is a crime of
14    violence, involving a weapon, or a sex offense.
15        (2) The history and characteristics of the defendant
16    including:
17            (A) Any evidence of the defendant's prior criminal
18        history indicative of violent, abusive or assaultive
19        behavior, or lack of such behavior. Such evidence may
20        include testimony or documents received in juvenile
21        proceedings, criminal, quasi-criminal, civil
22        commitment, domestic relations, or other proceedings.
23            (B) Any evidence of the defendant's psychological,
24        psychiatric or other similar social history which
25        tends to indicate a violent, abusive, or assaultive
26        nature, or lack of any such history.

 

 

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1        (3) The identity of any person or persons to whose
2    safety the defendant is believed to pose a threat, and the
3    nature of the threat.
4        (4) Any statements made by, or attributed to the
5    defendant, together with the circumstances surrounding
6    them.
7        (5) The age and physical condition of the defendant.
8        (6) The age and physical condition of any victim or
9    complaining witness.
10        (7) Whether the defendant is known to possess or have
11    access to any weapon or weapons.
12        (8) Whether, at the time of the current offense or any
13    other offense or arrest, the defendant was on probation,
14    parole, aftercare release, mandatory supervised release or
15    other release from custody pending trial, sentencing,
16    appeal or completion of sentence for an offense under
17    federal or state law.
18        (9) Any other factors, including those listed in
19    Section 110-5 of this Article deemed by the court to have a
20    reasonable bearing upon the defendant's propensity or
21    reputation for violent, abusive, or assaultive behavior,
22    or lack of such behavior.
23    (h) Detention order. The court shall, in any order for
24detention:
25        (1) make a written finding summarizing the court's
26    reasons for concluding that the defendant should be denied

 

 

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1    pretrial release, including why less restrictive
2    conditions would not avoid a real and present threat to
3    the safety of any person or persons or the community,
4    based on the specific articulable facts of the case, or
5    prevent the defendant's willful flight from prosecution;
6        (2) direct that the defendant be committed to the
7    custody of the sheriff for confinement in the county jail
8    pending trial;
9        (3) direct that the defendant be given a reasonable
10    opportunity for private consultation with counsel, and for
11    communication with others of his or her choice by
12    visitation, mail and telephone; and
13        (4) direct that the sheriff deliver the defendant as
14    required for appearances in connection with court
15    proceedings.
16    (i) Detention. If the court enters an order for the
17detention of the defendant pursuant to subsection (e) of this
18Section, the defendant shall be brought to trial on the
19offense for which he is detained within 90 days after the date
20on which the order for detention was entered. If the defendant
21is not brought to trial within the 90-day period required by
22the preceding sentence, he shall not be denied pretrial
23release. In computing the 90-day period, the court shall omit
24any period of delay resulting from a continuance granted at
25the request of the defendant and any period of delay resulting
26from a continuance granted at the request of the State with

 

 

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1good cause shown pursuant to Section 103-5.
2    (i-5) At each subsequent appearance of the defendant
3before the court, the judge must find that continued detention
4is necessary to avoid a real and present threat to the safety
5of any person or persons or the community, based on the
6specific articulable facts of the case, or to prevent the
7defendant's willful flight from prosecution.
8    (j) Rights of the defendant. The defendant shall be
9entitled to appeal any order entered under this Section
10denying his or her pretrial release.
11    (k) Appeal. The State may appeal any order entered under
12this Section denying any motion for denial of pretrial
13release.
14    (l) Presumption of innocence. Nothing in this Section
15shall be construed as modifying or limiting in any way the
16defendant's presumption of innocence in further criminal
17proceedings.
18    (m) Interest of victims.
19    (1) Crime victims shall be given notice by the State's
20Attorney's office of this hearing as required in paragraph (1)
21of subsection (b) of Section 4.5 of the Rights of Crime Victims
22and Witnesses Act and shall be informed of their opportunity
23at this hearing to obtain a protective order.
24    (2) If the defendant is denied pretrial release, the court
25may impose a no contact provision with the victim or other
26interested party that shall be enforced while the defendant

 

 

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1remains in custody.
2(Source: P.A. 101-652, eff. 1-1-23; 102-1104, eff. 1-1-23.)