102ND GENERAL ASSEMBLY State of Illinois 2021 and 2022 HB5356

Introduced , by Rep. Mark Batinick

SYNOPSIS AS INTRODUCED:

`705 ILCS 105/27.11 new`
`725 ILCS 5/110-6.1`	`from Ch. 38, par. 110-6.1`

Amends the Clerks of Courts Act. Provides that beginning January 1,

2023,
the clerk of the circuit court must report to the Administrative

Office of the Illinois Courts and every 30 days thereafter a list of offenders in the clerk's circuit who were charged with a violation of the Deadly Weapons Article of the Criminal Code of 2012 and whether they were detained or released on pretrial release. Provides that the Administrative Office of the Illinois Courts shall publish the information on a public database providing the offense type, date of the offense, and whether there was an order for detention or pretrial release. Provides that the offenders names shall not be listed on the public database. Provides that the Administrative Office of the Illinois Courts shall determine the manner in which the information is reported to the Office from the clerks. Amends the Code of Criminal Procedure of 1963. Provides that in addition to other factors in which the court may deny a defendant pretrial release, the court may deny a defendant pretrial release if: (1) the defendant is charged with an offense that involves the discharge of a firearm; or (2) the defendant is charged with any felony offense listed in Article 24 of the Criminal Code of 2012 and has a prior conviction for a weapons offense. Effective immediately.

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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,

3 represented in the General Assembly:

4 Section 5. The Clerks of Courts Act is amended by adding

5 Section 27.11 as follows:

6 (705 ILCS 105/27.11 new)

7 Sec. 27.11. Firearm offenses database; pretrial release.

8 (a) Beginning January 1, 2023, the clerk of the circuit

9 court must report to the Administrative Office of the Illinois

10 Courts and every 30 days thereafter a list of offenders in the

11 clerk's circuit who were charged with a violation of Article

12 24 of the Criminal Code of 2012 and whether they were detained

13 or released on pretrial release.

14 (b) The Administrative Office of the Illinois Courts shall

15 publish the information on a public database providing the

16 offense type, date of the offense, and whether there was an

17 order for detention or pretrial release.

18 (c) The offenders names shall not be listed on the public

19 database.

20 (d) The Administrative Office of the Illinois Courts shall

21 determine the manner in which the information is reported to

22 the Office from the clerks.

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1 Section 10. The Code of Criminal Procedure of 1963 is

2 amended by changing Section 110-6.1 as follows:

3 (725 ILCS 5/110-6.1) (from Ch. 38, par. 110-6.1)

4 (Text of Section before amendment by P.A. 101-652)

5 Sec. 110-6.1. Denial of bail in non-probationable felony

6 offenses.

7 (a) Upon verified petition by the State, the court shall

8 hold a hearing to determine whether bail should be denied to a

9 defendant who is charged with a felony offense for which a

10 sentence of imprisonment, without probation, periodic

11 imprisonment or conditional discharge, is required by law upon

12 conviction, when it is alleged that the defendant's admission

13 to bail poses a real and present threat to the physical safety

14 of any person or persons.

15 (1) A petition may be filed without prior notice to

16 the defendant at the first appearance before a judge, or

17 within the 21 calendar days, except as provided in Section

18 110-6, after arrest and release of the defendant upon

19 reasonable notice to defendant; provided that while such

20 petition is pending before the court, the defendant if

21 previously released shall not be detained.

22 (2) The hearing shall be held immediately upon the

23 defendant's appearance before the court, unless for good

24 cause shown the defendant or the State seeks a

25 continuance. A continuance on motion of the defendant may

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1 not exceed 5 calendar days, and a continuance on the

2 motion of the State may not exceed 3 calendar days. The

3 defendant may be held in custody during such continuance.

4 (b) The court may deny bail to the defendant where, after

5 the hearing, it is determined that:

6 (1) the proof is evident or the presumption great that

7 the defendant has committed an offense for which a

8 sentence of imprisonment, without probation, periodic

9 imprisonment or conditional discharge, must be imposed by

10 law as a consequence of conviction, and

11 (2) the defendant poses a real and present threat to

12 the physical safety of any person or persons, by conduct

13 which may include, but is not limited to, a forcible

14 felony, the obstruction of justice, intimidation, injury,

15 physical harm, an offense under the Illinois Controlled

16 Substances Act which is a Class X felony, or an offense

17 under the Methamphetamine Control and Community Protection

18 Act which is a Class X felony, and

19 (3) the court finds that no condition or combination

20 of conditions set forth in subsection (b) of Section

21 110-10 of this Article, can reasonably assure the physical

22 safety of any other person or persons.

23 (c) Conduct of the hearings.

24 (1) The hearing on the defendant's culpability and

25 dangerousness shall be conducted in accordance with the

26 following provisions:

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1 (A) Information used by the court in its findings

2 or stated in or offered at such hearing may be by way

3 of proffer based upon reliable information offered by

4 the State or by defendant. Defendant has the right to

5 be represented by counsel, and if he is indigent, to

6 have counsel appointed for him. Defendant shall have

7 the opportunity to testify, to present witnesses in

8 his own behalf, and to cross-examine witnesses if any

9 are called by the State. The defendant has the right to

10 present witnesses in his favor. When the ends of

11 justice so require, the court may exercises its

12 discretion and compel the appearance of a complaining

13 witness. The court shall state on the record reasons

14 for granting a defense request to compel the presence

15 of a complaining witness. Cross-examination of a

16 complaining witness at the pretrial detention hearing

17 for the purpose of impeaching the witness' credibility

18 is insufficient reason to compel the presence of the

19 witness. In deciding whether to compel the appearance

20 of a complaining witness, the court shall be

21 considerate of the emotional and physical well-being

22 of the witness. The pre-trial detention hearing is not

23 to be used for purposes of discovery, and the post

24 arraignment rules of discovery do not apply. The State

25 shall tender to the defendant, prior to the hearing,

26 copies of defendant's criminal history, if any, if

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1 available, and any written or recorded statements and

2 the substance of any oral statements made by any

3 person, if relied upon by the State in its petition.

4 The rules concerning the admissibility of evidence in

5 criminal trials do not apply to the presentation and

6 consideration of information at the hearing. At the

7 trial concerning the offense for which the hearing was

8 conducted neither the finding of the court nor any

9 transcript or other record of the hearing shall be

10 admissible in the State's case in chief, but shall be

11 admissible for impeachment, or as provided in Section

12 115-10.1 of this Code, or in a perjury proceeding.

13 (B) A motion by the defendant to suppress evidence

14 or to suppress a confession shall not be entertained.

15 Evidence that proof may have been obtained as the

16 result of an unlawful search and seizure or through

17 improper interrogation is not relevant to this state

18 of the prosecution.

19 (2) The facts relied upon by the court to support a

20 finding that the defendant poses a real and present threat

21 to the physical safety of any person or persons shall be

22 supported by clear and convincing evidence presented by

23 the State.

24 (d) Factors to be considered in making a determination of

25 dangerousness. The court may, in determining whether the

26 defendant poses a real and present threat to the physical

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1 safety of any person or persons, consider but shall not be

2 limited to evidence or testimony concerning:

3 (1) The nature and circumstances of any offense

4 charged, including whether the offense is a crime of

5 violence, involving a weapon.

6 (2) The history and characteristics of the defendant

7 including:

8 (A) Any evidence of the defendant's prior criminal

9 history indicative of violent, abusive or assaultive

10 behavior, or lack of such behavior. Such evidence may

11 include testimony or documents received in juvenile

12 proceedings, criminal, quasi-criminal, civil

13 commitment, domestic relations or other proceedings.

14 (B) Any evidence of the defendant's psychological,

15 psychiatric or other similar social history which

16 tends to indicate a violent, abusive, or assaultive

17 nature, or lack of any such history.

18 (3) The identity of any person or persons to whose

19 safety the defendant is believed to pose a threat, and the

20 nature of the threat;

21 (4) Any statements made by, or attributed to the

22 defendant, together with the circumstances surrounding

23 them;

24 (5) The age and physical condition of any person

25 assaulted by the defendant;

26 (6) Whether the defendant is known to possess or have

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1 access to any weapon or weapons;

2 (7) Whether, at the time of the current offense or any

3 other offense or arrest, the defendant was on probation,

4 parole, aftercare release, mandatory supervised release or

5 other release from custody pending trial, sentencing,

6 appeal or completion of sentence for an offense under

7 federal or state law;

8 (8) Any other factors, including those listed in

9 Section 110-5 of this Article deemed by the court to have a

10 reasonable bearing upon the defendant's propensity or

11 reputation for violent, abusive or assaultive behavior, or

12 lack of such behavior.

13 (e) Detention order. The court shall, in any order for

14 detention:

15 (1) briefly summarize the evidence of the defendant's

16 culpability and its reasons for concluding that the

17 defendant should be held without bail;

18 (2) direct that the defendant be committed to the

19 custody of the sheriff for confinement in the county jail

20 pending trial;

21 (3) direct that the defendant be given a reasonable

22 opportunity for private consultation with counsel, and for

23 communication with others of his choice by visitation,

24 mail and telephone; and

25 (4) direct that the sheriff deliver the defendant as

26 required for appearances in connection with court

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1 proceedings.

2 (f) If the court enters an order for the detention of the

3 defendant pursuant to subsection (e) of this Section, the

4 defendant shall be brought to trial on the offense for which he

5 is detained within 90 days after the date on which the order

6 for detention was entered. If the defendant is not brought to

7 trial within the 90 day period required by the preceding

8 sentence, he shall not be held longer without bail. In

9 computing the 90 day period, the court shall omit any period of

10 delay resulting from a continuance granted at the request of

11 the defendant.

12 (g) Rights of the defendant. Any person shall be entitled

13 to appeal any order entered under this Section denying bail to

14 the defendant.

15 (h) The State may appeal any order entered under this

16 Section denying any motion for denial of bail.

17 (i) Nothing in this Section shall be construed as

18 modifying or limiting in any way the defendant's presumption

19 of innocence in further criminal proceedings.

20 (Source: P.A. 98-558, eff. 1-1-14.)

21 (Text of Section after amendment by P.A. 101-652)

22 Sec. 110-6.1. Denial of pretrial release.

23 (a) Upon verified petition by the State, the court shall

24 hold a hearing and may deny a defendant pretrial release only

25 if:

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1 (1) the defendant is charged with a forcible felony

2 offense for which a sentence of imprisonment, without

3 probation, periodic imprisonment or conditional discharge,

4 is required by law upon conviction, and it is alleged that

5 the defendant's pretrial release poses a specific, real

6 and present threat to any person or the community.;

7 (2) the defendant is charged with stalking or

8 aggravated stalking and it is alleged that the defendant's

9 pre-trial release poses a real and present threat to the

10 physical safety of a victim of the alleged offense, and

11 denial of release is necessary to prevent fulfillment of

12 the threat upon which the charge is based;

13 (3) the victim of abuse was a family or household

14 member as defined by paragraph (6) of Section 103 of the

15 Illinois Domestic Violence Act of 1986, and the person

16 charged, at the time of the alleged offense, was subject

17 to the terms of an order of protection issued under

18 Section 112A-14 of this Code, or Section 214 of the

19 Illinois Domestic Violence Act of 1986 or previously was

20 convicted of a violation of an order of protection under

21 Section 12-3.4 or 12-30 of the Criminal Code of 1961 or the

22 Criminal Code of 2012 or a violent crime if the victim was

23 a family or household member as defined by paragraph (6)

24 of the Illinois Domestic Violence Act of 1986 at the time

25 of the offense or a violation of a substantially similar

26 municipal ordinance or law of this or any other state or

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1 the United States if the victim was a family or household

2 member as defined by paragraph (6) of Section 103 of the

3 Illinois Domestic Violence Act of 1986 at the time of the

4 offense, and it is alleged that the defendant's pre-trial

5 release poses a real and present threat to the physical

6 safety of any person or persons;

7 (4) the defendant is charged with domestic battery or

8 aggravated domestic battery under Section 12-3.2 or 12-3.3

9 of the Criminal Code of 2012 and it is alleged that the

10 defendant's pretrial release poses a real and present

11 threat to the physical safety of any person or persons;

12 (5) the defendant is charged with any offense under

13 Article 11 of the Criminal Code of 2012, except for

14 Sections 11-30, 11-35, 11-40, and 11-45 of the Criminal

15 Code of 2012, or similar provisions of the Criminal Code

16 of 1961 and it is alleged that the defendant's pretrial

17 release poses a real and present threat to the physical

18 safety of any person or persons;

19 (6) the defendant is charged with any of these

20 violations under the Criminal Code of 2012 and it is

21 alleged that the defendant's pretrial releases poses a

22 real and present threat to the physical safety of any

23 specifically identifiable person or persons.

24 (A) Section 24-1.2 (aggravated discharge of a

25 firearm);

26 (B) Section 24-2.5 (aggravated discharge of a

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1 machine gun or a firearm equipped with a device

2 designed or use for silencing the report of a

3 firearm);

4 (C) Section 24-1.5 (reckless discharge of a

5 firearm);

6 (D) Section 24-1.7 (armed habitual criminal);

7 (E) Section 24-2.2 2 (manufacture, sale or

8 transfer of bullets or shells represented to be armor

9 piercing bullets, dragon's breath shotgun shells, bolo

10 shells or flechette shells);

11 (F) Section 24-3 (unlawful sale or delivery of

12 firearms);

13 (G) Section 24-3.3 (unlawful sale or delivery of

14 firearms on the premises of any school);

15 (H) Section 24-34 (unlawful sale of firearms by

16 liquor license);

17 (I) Section 24-3.5 {unlawful purchase of a

18 firearm);

19 (J) Section 24-3A (gunrunning); or

20 (K) Section on 24-3B (firearms trafficking );

21 (L) Section 10-9 (b) (involuntary servitude);

22 (M) Section 10-9 (c) (involuntary sexual servitude

23 of a minor);

24 (N) Section 10-9(d) (trafficking in persons);

25 (O) Non-probationable violations: (i) (unlawful

26 use or possession of weapons by felons or persons in

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1 the Custody of the Department of Corrections

2 facilities (Section 24-1.1), (ii) aggravated unlawful

3 use of a weapon (Section 24-1.6, or (iii) aggravated

4 possession of a stolen firearm (Section 24-3.9);

5 (7) the person has a high likelihood of willful flight

6 to avoid prosecution and is charged with:

7 (A) Any felony described in Sections (a)(1)

8 through (a)(5) of this Section; or

9 (B) A felony offense other than a Class 4 offense;

10 (8) the defendant is charged with an offense that

11 involves the discharge of a firearm; or

12 (9) the defendant is charged with any felony offense

13 listed in Article 24 of the Criminal Code of 2012 and has a

14 prior conviction for a weapons offense.

16 (b) If the charged offense is a felony, the Court shall

17 hold a hearing pursuant to 109-3 of this Code to determine

18 whether there is probable cause the defendant has committed an

19 offense, unless a grand jury has returned a true bill of

20 indictment against the defendant. If there is a finding of no

21 probable cause, the defendant shall be released. No such

22 finding is necessary if the defendant is charged with a

23 misdemeanor.

24 (c) Timing of petition.

25 (1) A petition may be filed without prior notice to

26 the defendant at the first appearance before a judge, or

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1 within the 21 calendar days, except as provided in Section

2 110-6, after arrest and release of the defendant upon

3 reasonable notice to defendant; provided that while such

4 petition is pending before the court, the defendant if

5 previously released shall not be detained.

6 (2) (2) Upon filing, the court shall immediately hold

7 a hearing on the petition unless a continuance is

8 requested. If a continuance is requested, the hearing

9 shall be held within 48 hours of the defendant's first

10 appearance if the defendant is charged with a Class X,

11 Class 1, Class 2, or Class 3 felony, and within 24 hours if

12 the defendant is charged with a Class 4 or misdemeanor

13 offense. The Court may deny and or grant the request for

14 continuance. If the court decides to grant the

15 continuance, the Court retains the discretion to detain or

16 release the defendant in the time between the filing of

17 the petition and the hearing.

18 (d) Contents of petition.

19 (1) The petition shall be verified by the State and

20 shall state the grounds upon which it contends the

21 defendant should be denied pretrial release, including the

22 identity of the specific person or persons the State

23 believes the defendant poses a danger to.

24 (2) Only one petition may be filed under this Section.

25 (e) Eligibility: All defendants shall be presumed eligible

26 for pretrial release, and the State shall bear the burden of

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1 proving by clear and convincing evidence that:

2 (1) the proof is evident or the presumption great that

3 the defendant has committed an offense listed in

4 paragraphs (1) through (6) of subsection (a), and

5 (2) the defendant poses a real and present threat to

6 the safety of a specific, identifiable person or persons,

7 by conduct which may include, but is not limited to, a

8 forcible felony, the obstruction of justice, intimidation,

9 injury, or abuse as defined by paragraph (1) of Section

10 103 of the Illinois Domestic Violence Act of 1986, and

11 (3) no condition or combination of conditions set

12 forth in subsection (b) of Section 110-10 of this Article

13 can mitigate the real and present threat to the safety of

14 any person or persons or the defendant's willful flight.

15 (f) Conduct of the hearings.

16 (1) Prior to the hearing the State shall tender to the

17 defendant copies of defendant's criminal history

18 available, any written or recorded statements, and the

19 substance of any oral statements made by any person, if

20 relied upon by the State in its petition, and any police

21 reports in the State's Attorney's possession at the time

22 of the hearing that are required to be disclosed to the

23 defense under Illinois Supreme Court rules.

24 (2) The State or defendant may present evidence at the

25 hearing by way of proffer based upon reliable information.

26 (3) The defendant has the right to be represented by

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1 counsel, and if he or she is indigent, to have counsel

2 appointed for him or her. The defendant shall have the

3 opportunity to testify, to present witnesses on his or her

4 own behalf, and to cross-examine any witnesses that are

5 called by the State.

6 (4) If the defense seeks to call the complaining

7 witness as a witness in its favor, it shall petition the

8 court for permission. When the ends of justice so require,

9 the court may exercise its discretion and compel the

10 appearance of a complaining witness. The court shall state

11 on the record reasons for granting a defense request to

12 compel the presence of a complaining witness. In making a

13 determination under this section, the court shall state on

14 the record the reason for granting a defense request to

15 compel the presence of a complaining witness, and only

16 grant the request if the court finds by clear and

17 convincing evidence that the defendant will be materially

18 prejudiced if the complaining witness does not appear.

19 Cross-examination of a complaining witness at the pretrial

20 detention hearing for the purpose of impeaching the

21 witness' credibility is insufficient reason to compel the

22 presence of the witness. In deciding whether to compel the

23 appearance of a complaining witness, the court shall be

24 considerate of the emotional and physical well-being of

25 the witness. The pre-trial detention hearing is not to be

26 used for purposes of discovery, and the post arraignment

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1 rules of discovery do not apply.

2 (5) The rules concerning the admissibility of evidence

3 in criminal trials do not apply to the presentation and

4 consideration of information at the hearing. At the trial

5 concerning the offense for which the hearing was conducted

6 neither the finding of the court nor any transcript or

7 other record of the hearing shall be admissible in the

8 State's case in chief, but shall be admissible for

9 impeachment, or as provided in Section 115-10.1 of this

10 Code, or in a perjury proceeding.

11 (6) The defendant may not move to suppress evidence or

12 a confession, however, evidence that proof of the charged

13 crime may have been the result of an unlawful search or

14 seizure, or both, or through improper interrogation, is

15 relevant in assessing the weight of the evidence against

16 the defendant.

17 (7) Decisions regarding release, conditions of release

18 and detention prior trial should be individualized, and no

19 single factor or standard should be used exclusively to

20 make a condition or detention decision.

21 (g) Factors to be considered in making a determination of

22 dangerousness. The court may, in determining whether the

23 defendant poses a specific, imminent threat of serious

24 physical harm to an identifiable person or persons, consider

25 but shall not be limited to evidence or testimony concerning:

26 (1) The nature and circumstances of any offense

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1 charged, including whether the offense is a crime of

2 violence, involving a weapon, or a sex offense.

3 (2) The history and characteristics of the defendant

4 including:

5 (A) Any evidence of the defendant's prior criminal

6 history indicative of violent, abusive or assaultive

7 behavior, or lack of such behavior. Such evidence may

8 include testimony or documents received in juvenile

9 proceedings, criminal, quasi-criminal, civil

10 commitment, domestic relations or other proceedings.

11 (B) Any evidence of the defendant's psychological,

12 psychiatric or other similar social history which

13 tends to indicate a violent, abusive, or assaultive

14 nature, or lack of any such history.

15 (3) The identity of any person or persons to whose

16 safety the defendant is believed to pose a threat, and the

17 nature of the threat;

18 (4) Any statements made by, or attributed to the

19 defendant, together with the circumstances surrounding

20 them;

21 (5) The age and physical condition of the defendant;

22 (6) The age and physical condition of any victim or

23 complaining witness;

24 (7) Whether the defendant is known to possess or have

25 access to any weapon or weapons;

26 (8) Whether, at the time of the current offense or any

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1 other offense or arrest, the defendant was on probation,

2 parole, aftercare release, mandatory supervised release or

3 other release from custody pending trial, sentencing,

4 appeal or completion of sentence for an offense under

5 federal or state law;

6 (9) Any other factors, including those listed in

7 Section 110-5 of this Article deemed by the court to have a

8 reasonable bearing upon the defendant's propensity or

9 reputation for violent, abusive or assaultive behavior, or

10 lack of such behavior.

11 (h) Detention order. The court shall, in any order for

12 detention:

13 (1) briefly summarize the evidence of the defendant's

14 guilt or innocence, and the court's reasons for concluding

15 that the defendant should be denied pretrial release;

16 (2) direct that the defendant be committed to the

17 custody of the sheriff for confinement in the county jail

18 pending trial;

19 (3) direct that the defendant be given a reasonable

20 opportunity for private consultation with counsel, and for

21 communication with others of his or her choice by

22 visitation, mail and telephone; and

23 (4) direct that the sheriff deliver the defendant as

24 required for appearances in connection with court

25 proceedings.

26 (i) Detention. If the court enters an order for the

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1 detention of the defendant pursuant to subsection (e) of this

2 Section, the defendant shall be brought to trial on the

3 offense for which he is detained within 90 days after the date

4 on which the order for detention was entered. If the defendant

5 is not brought to trial within the 90 day period required by

6 the preceding sentence, he shall not be denied pretrial

7 release. In computing the 90 day period, the court shall omit

8 any period of delay resulting from a continuance granted at

9 the request of the defendant.

10 (j) Rights of the defendant. Any person shall be entitled

11 to appeal any order entered under this Section denying

12 pretrial release to the defendant.

13 (k) Appeal. The State may appeal any order entered under

14 this Section denying any motion for denial of pretrial

15 release.

16 (l) Presumption of innocence. Nothing in this Section

17 shall be construed as modifying or limiting in any way the

18 defendant's presumption of innocence in further criminal

19 proceedings.

20 (m) Victim notice.

21 (1) Crime victims shall be given notice by the State's

22 Attorney's office of this hearing as required in paragraph

23 (1) of subsection (b) of Section 4.5 of the Rights of Crime

24 Victims and Witnesses Act and shall be informed of their

25 opportunity at this hearing to obtain an order of

26 protection under Article 112A of this Code.

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1 (Source: P.A. 101-652, eff. 1-1-23.)

2 Section 95. No acceleration or delay. Where this Act makes

3 changes in a statute that is represented in this Act by text

4 that is not yet or no longer in effect (for example, a Section

5 represented by multiple versions), the use of that text does

6 not accelerate or delay the taking effect of (i) the changes

7 made by this Act or (ii) provisions derived from any other

8 Public Act.

9 Section 99. Effective date. This Act takes effect upon

10 becoming law.