Bill Text: IL HB5120 | 2023-2024 | 103rd General Assembly | Introduced

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Bill Title: Amends the Code of Criminal Procedure of 1963. Provides that upon verified petition by the State, the court shall hold a hearing and may deny a defendant pretrial release if: (1) the defendant is charged with a felony offense (rather than specified felonies) and it is alleged that the defendant's pretrial release poses a real and present threat to the safety of any person or persons or the community, based on the specific articulable facts of the case; (2) the defendant is charged with a felony offense (rather than specific felonies) and has a high likelihood of willful flight to avoid prosecution; or (3) the defendant has been convicted of 2 or more of the same felonies or misdemeanors and either: (i) it is alleged that the defendant's pretrial release poses a real and present threat to the safety of any person or persons or the community, based on the specific articulable facts of the case; or (ii) the defendant has a high likelihood of willful flight to avoid prosecution. Changes the State's burden of proof in a pretrial detention hearing seeking the defendant's detention from clear and convincing evidence to a preponderance of the evidence.

Spectrum: Moderate Partisan Bill (Republican 8-1)

Status: (Failed) 2025-01-07 - Session Sine Die [HB5120 Detail]

Download: Illinois-2023-HB5120-Introduced.html

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103RD GENERAL ASSEMBLY State of Illinois 2023 and 2024 HB5120 Introduced 2/8/2024, by Rep. Patrick Windhorst - Dan Ugaste - Amy L. Grant - John M. Cabello and Dave Severin SYNOPSIS AS INTRODUCED:
725 ILCS 5/110-6.1 from Ch. 38, par. 110-6.1
Amends the Code of Criminal Procedure of 1963. Provides that upon verified petition by the State, the court shall hold a hearing and may deny a defendant pretrial release if: (1) the defendant is charged with a felony offense (rather than specified felonies) and it is alleged that the defendant's pretrial release poses a real and present threat to the safety of any person or persons or the community, based on the specific articulable facts of the case; (2) the defendant is charged with a felony offense (rather than specific felonies) and has a high likelihood of willful flight to avoid prosecution; or (3) the defendant has been convicted of 2 or more of the same felonies or misdemeanors and either: (i) it is alleged that the defendant's pretrial release poses a real and present threat to the safety of any person or persons or the community, based on the specific articulable facts of the case; or (ii) the defendant has a high likelihood of willful flight to avoid prosecution. Changes the State's burden of proof in a pretrial detention hearing seeking the defendant's detention from clear and convincing evidence to a preponderance of the evidence.
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A BILL FOR
HB5120 LRB103 35871 RLC 65956 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 110-6.1 as follows:
(725 ILCS 5/110-6.1) (from Ch. 38, par. 110-6.1)
Sec. 110-6.1. Denial of pretrial release.
(a) Upon verified petition by the State, the court shall
hold a hearing and may deny a defendant pretrial release only
if:
(1) the defendant is charged with a felony offense
other than a forcible felony for which, based on the
charge or the defendant's criminal history, a sentence of
imprisonment, without probation, periodic imprisonment or
conditional discharge, is required by law upon conviction,
and it is alleged that the defendant's pretrial release
poses a real and present threat to the safety of any person
or persons or the community, based on the specific
articulable facts of the case;
(1.5) (blank); the defendant's pretrial release poses
a real and present threat to the safety of any person or
persons or the community, based on the specific
articulable facts of the case, and the defendant is

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charged with a forcible felony, which as used in this
Section, means treason, first degree murder, second degree
murder, predatory criminal sexual assault of a child,
aggravated criminal sexual assault, criminal sexual
assault, armed robbery, aggravated robbery, robbery,
burglary where there is use of force against another
person, residential burglary, home invasion, vehicular
invasion, aggravated arson, arson, aggravated kidnaping,
kidnaping, aggravated battery resulting in great bodily
harm or permanent disability or disfigurement or any other
felony which involves the threat of or infliction of great
bodily harm or permanent disability or disfigurement;
(2) (blank); the defendant is charged with stalking or
aggravated stalking, and it is alleged that the
defendant's pre-trial release poses a real and present
threat to the safety of a victim of the alleged offense,
and denial of release is necessary to prevent fulfillment
of the threat upon which the charge is based;
(3) the defendant is charged with a violation of an
order of protection issued under Section 112A-14 of this
Code or Section 214 of the Illinois Domestic Violence Act
of 1986, a stalking no contact order under Section 80 of
the Stalking No Contact Order Act, or of a civil no contact
order under Section 213 of the Civil No Contact Order Act,
and it is alleged that the defendant's pretrial release
poses a real and present threat to the safety of any person

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or persons or the community, based on the specific
articulable facts of the case;
(4) the defendant is charged with misdemeanor domestic
battery or aggravated domestic battery under Section
12-3.2 or 12-3.3 of the Criminal Code of 2012 and it is
alleged that the defendant's pretrial release poses a real
and present threat to the safety of any person or persons
or the community, based on the specific articulable facts
of the case;
(5) the defendant is charged with any offense under
Article 11 of the Criminal Code of 2012, except for
Sections 11-14, 11-14.1, 11-18, 11-20, 11-30, 11-35,
11-40, and 11-45 of the Criminal Code of 2012, or similar
provisions of the Criminal Code of 1961 and it is alleged
that the defendant's pretrial release poses a real and
present threat to the safety of any person or persons or
the community, based on the specific articulable facts of
the case;
(6) (blank); the defendant is charged with any of the
following offenses under the Criminal Code of 2012, and it
is alleged that the defendant's pretrial release poses a
real and present threat to the safety of any person or
persons or the community, based on the specific
articulable facts of the case:
(A) Section 24-1.2 (aggravated discharge of a
firearm);

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(B) Section 24-2.5 (aggravated discharge of a
machine gun or a firearm equipped with a device
designed or use for silencing the report of a
firearm);
(C) Section 24-1.5 (reckless discharge of a
firearm);
(D) Section 24-1.7 (armed habitual criminal);
(E) Section 24-2.2 (manufacture, sale or transfer
of bullets or shells represented to be armor piercing
bullets, dragon's breath shotgun shells, bolo shells,
or flechette shells);
(F) Section 24-3 (unlawful sale or delivery of
firearms);
(G) Section 24-3.3 (unlawful sale or delivery of
firearms on the premises of any school);
(H) Section 24-34 (unlawful sale of firearms by
liquor license);
(I) Section 24-3.5 (unlawful purchase of a
firearm);
(J) Section 24-3A (gunrunning);
(K) Section 24-3B (firearms trafficking);
(L) Section 10-9 (b) (involuntary servitude);
(M) Section 10-9 (c) (involuntary sexual servitude
of a minor);
(N) Section 10-9(d) (trafficking in persons);
(O) Non-probationable violations: (i) unlawful use

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or possession of weapons by felons or persons in the
Custody of the Department of Corrections facilities
(Section 24-1.1), (ii) aggravated unlawful use of a
weapon (Section 24-1.6), or (iii) aggravated
possession of a stolen firearm (Section 24-3.9);
(P) Section 9-3 (reckless homicide and involuntary
manslaughter);
(Q) Section 19-3 (residential burglary);
(R) Section 10-5 (child abduction);
(S) Felony violations of Section 12C-5 (child
endangerment);
(T) Section 12-7.1 (hate crime);
(U) Section 10-3.1 (aggravated unlawful
restraint);
(V) Section 12-9 (threatening a public official);
(W) Subdivision (f)(1) of Section 12-3.05
(aggravated battery with a deadly weapon other than by
discharge of a firearm);
(6.5) (blank); the defendant is charged with any of
the following offenses, and it is alleged that the
defendant's pretrial release poses a real and present
threat to the safety of any person or persons or the
community, based on the specific articulable facts of the
case:
(A) Felony violations of Sections 3.01, 3.02, or
3.03 of the Humane Care for Animals Act (cruel

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treatment, aggravated cruelty, and animal torture);
(B) Subdivision (d)(1)(B) of Section 11-501 of the
Illinois Vehicle Code (aggravated driving under the
influence while operating a school bus with
passengers);
(C) Subdivision (d)(1)(C) of Section 11-501 of the
Illinois Vehicle Code (aggravated driving under the
influence causing great bodily harm);
(D) Subdivision (d)(1)(D) of Section 11-501 of the
Illinois Vehicle Code (aggravated driving under the
influence after a previous reckless homicide
conviction);
(E) Subdivision (d)(1)(F) of Section 11-501 of the
Illinois Vehicle Code (aggravated driving under the
influence leading to death); or
(F) Subdivision (d)(1)(J) of Section 11-501 of the
Illinois Vehicle Code (aggravated driving under the
influence that resulted in bodily harm to a child
under the age of 16);
(7) the defendant is charged with an attempt to commit
any charge listed in paragraphs (1) through (5) (6.5), and
it is alleged that the defendant's pretrial release poses
a real and present threat to the safety of any person or
persons or the community, based on the specific
articulable facts of the case; or
(8) the person has a high likelihood of willful flight

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to avoid prosecution and is charged with a felony; or
(9) the defendant has been convicted of 2 or more of
the same felonies or misdemeanors and either:
(A) it is alleged that the defendant's pretrial
release poses a real and present threat to the safety
of any person or persons or the community, based on the
specific articulable facts of the case; or
(B) the defendant has a high likelihood of willful
flight to avoid prosecution. :
(A) Any felony described in subdivisions (a)(1)
through (a)(7) of this Section; or
(B) A felony offense other than a Class 4 offense.
(b) If the charged offense is a felony, as part of the
detention hearing, the court shall determine whether there is
probable cause the defendant has committed an offense, unless
a hearing pursuant to Section 109-3 of this Code has already
been held or a grand jury has returned a true bill of
indictment against the defendant. If there is a finding of no
probable cause, the defendant shall be released. No such
finding is necessary if the defendant is charged with a
misdemeanor.
(c) Timing of petition.
(1) A petition may be filed without prior notice to
the defendant at the first appearance before a judge, or
within the 21 calendar days, except as provided in Section
110-6, after arrest and release of the defendant upon

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reasonable notice to defendant; provided that while such
petition is pending before the court, the defendant if
previously released shall not be detained.
(2) Upon filing, the court shall immediately hold a
hearing on the petition unless a continuance is requested.
If a continuance is requested and granted, the hearing
shall be held within 48 hours of the defendant's first
appearance if the defendant is charged with first degree
murder or a Class X, Class 1, Class 2, or Class 3 felony,
and within 24 hours if the defendant is charged with a
Class 4 or misdemeanor offense. The Court may deny or
grant the request for continuance. If the court decides to
grant the continuance, the Court retains the discretion to
detain or release the defendant in the time between the
filing of the petition and the hearing.
(d) Contents of petition.
(1) The petition shall be verified by the State and
shall state the grounds upon which it contends the
defendant should be denied pretrial release, including the
real and present threat to the safety of any person or
persons or the community, based on the specific
articulable facts or flight risk, as appropriate.
(2) If the State seeks to file a second or subsequent
petition under this Section, the State shall be required
to present a verified application setting forth in detail
any new facts not known or obtainable at the time of the

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filing of the previous petition.
(e) Eligibility: All defendants shall be presumed eligible
for pretrial release, and the State shall bear the burden of
proving by a preponderance of the clear and convincing
evidence that:
(1) the proof is evident or the presumption great that
the defendant has committed an offense listed in
subsection (a), and
(2) for offenses listed in paragraphs (1) through (7)
of subsection (a), the defendant poses a real and present
threat to the safety of any person or persons or the
community, based on the specific articulable facts of the
case, by conduct which may include, but is not limited to,
a forcible felony, the obstruction of justice,
intimidation, injury, or abuse as defined by paragraph (1)
of Section 103 of the Illinois Domestic Violence Act of
1986, and
(3) no condition or combination of conditions set
forth in subsection (b) of Section 110-10 of this Article
can mitigate (i) the real and present threat to the safety
of any person or persons or the community, based on the
specific articulable facts of the case, for offenses
listed in paragraphs (1) through (7) of subsection (a), or
(ii) the defendant's willful flight for offenses listed in
paragraph (8) of subsection (a), and
(4) for offenses under subsection (b) of Section 407

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of the Illinois Controlled Substances Act that are subject
to paragraph (1) of subsection (a), no condition or
combination of conditions set forth in subsection (b) of
Section 110-10 of this Article can mitigate the real and
present threat to the safety of any person or persons or
the community, based on the specific articulable facts of
the case, and the defendant poses a serious risk to not
appear in court as required.
(f) Conduct of the hearings.
(1) Prior to the hearing, the State shall tender to
the defendant copies of the defendant's criminal history
available, any written or recorded statements, and the
substance of any oral statements made by any person, if
relied upon by the State in its petition, and any police
reports in the prosecutor's possession at the time of the
hearing.
(2) The State or defendant may present evidence at the
hearing by way of proffer based upon reliable information.
(3) 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 on his or her
own behalf, and to cross-examine any witnesses that are
called by the State. Defense counsel shall be given
adequate opportunity to confer with the defendant before
any hearing at which conditions of release or the

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detention of the defendant are to be considered, with an
accommodation for a physical condition made to facilitate
attorney/client consultation. If defense counsel needs to
confer or consult with the defendant during any hearing
conducted via a two-way audio-visual communication system,
such consultation shall not be recorded and shall be
undertaken consistent with constitutional protections.
(3.5) A hearing at which pretrial release may be
denied must be conducted in person (and not by way of
two-way audio visual communication) unless the accused
waives the right to be present physically in court, the
court determines that the physical health and safety of
any person necessary to the proceedings would be
endangered by appearing in court, or the chief judge of
the circuit orders use of that system due to operational
challenges in conducting the hearing in person. Such
operational challenges must be documented and approved by
the chief judge of the circuit, and a plan to address the
challenges through reasonable efforts must be presented
and approved by the Administrative Office of the Illinois
Courts every 6 months.
(4) If the defense seeks to compel the complaining
witness to testify as a witness in its favor, it shall
petition the court for permission. When the ends of
justice so require, the court may exercise its discretion
and compel the appearance of a complaining witness. The

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court shall state on the record reasons for granting a
defense request to compel the presence of a complaining
witness only on the issue of the defendant's pretrial
detention. In making a determination under this Section,
the court shall state on the record the reason for
granting a defense request to compel the presence of a
complaining witness, and only grant the request if the
court finds by clear and convincing evidence that the
defendant will be materially prejudiced if the complaining
witness does not appear. 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
pre-trial detention hearing is not to be used for 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, if any, of the defendant's
criminal history, if available, and any written or
recorded statements and the substance of any oral
statements made by any person, if in the State's
Attorney's possession at the time of the hearing.
(5) The rules concerning the admissibility of evidence
in criminal trials do not apply to the presentation and

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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.
(6) The defendant may not move to suppress evidence or
a confession, however, evidence that proof of the charged
crime may have been the result of an unlawful search or
seizure, or both, or through improper interrogation, is
relevant in assessing the weight of the evidence against
the defendant.
(7) Decisions regarding release, conditions of
release, and detention prior to trial must be
individualized, and no single factor or standard may be
used exclusively to order detention. Risk assessment tools
may not be used as the sole basis to deny pretrial release.
(g) Factors to be considered in making a determination of
dangerousness. The court may, in determining whether the
defendant poses a real and present threat to the safety of any
person or persons or the community, based on the specific
articulable facts of the case, consider, but shall not be
limited to, evidence or testimony concerning:
(1) The nature and circumstances of any offense
charged, including whether the offense is a crime of

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violence, involving a weapon, or a sex offense.
(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 such behavior. Such 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 which
tends to indicate a violent, abusive, or assaultive
nature, or lack of any such history.
(3) The identity of any person or persons to whose
safety the defendant is believed to pose a threat, and the
nature of the threat.
(4) Any statements made by, or attributed to the
defendant, together with the circumstances surrounding
them.
(5) The age and physical condition of the defendant.
(6) The age and physical condition of any victim or
complaining witness.
(7) Whether the defendant is known to possess or have
access to any weapon or weapons.
(8) Whether, at the time of the current offense or any
other offense or arrest, the defendant was on probation,

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parole, aftercare release, mandatory supervised release or
other release from custody pending trial, sentencing,
appeal or completion of sentence for an offense under
federal or state law.
(9) Any other factors, including those listed in
Section 110-5 of this Article 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 such behavior.
(h) Detention order. The court shall, in any order for
detention:
(1) make a written finding summarizing the court's
reasons for concluding that the defendant should be denied
pretrial release, including why less restrictive
conditions would not avoid a real and present threat to
the safety of any person or persons or the community,
based on the specific articulable facts of the case, or
prevent the defendant's willful flight from prosecution;
(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 or her choice by
visitation, mail and telephone; and
(4) direct that the sheriff deliver the defendant as

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required for appearances in connection with court
proceedings.
(i) Detention. If the court enters an order for the
detention of the defendant pursuant to subsection (e) of this
Section, the defendant shall be brought to trial on the
offense for which he 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
the preceding sentence, he shall not be denied pretrial
release. 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 and any period of delay resulting
from a continuance granted at the request of the State with
good cause shown pursuant to Section 103-5.
(i-5) At each subsequent appearance of the defendant
before the court, the judge must find that continued detention
is necessary to avoid a real and present threat to the safety
of any person or persons or the community, based on the
specific articulable facts of the case, or to prevent the
defendant's willful flight from prosecution.
(j) Rights of the defendant. The defendant shall be
entitled to appeal any order entered under this Section
denying his or her pretrial release.
(k) Appeal. The State may appeal any order entered under
this Section denying any motion for denial of pretrial
release.

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