725 ILCS 5/110-5
2021 Illinois Compiled Statutes|Chapter 725 - CRIMINAL PROCEDURE|725 ILCS 5/ - Code of Criminal Procedure of 1963.|Title III - Proceedings After Arrest

 (from Ch. 38, par. 110-5)(Text of Section before amendment by P.A. 101-652)Sec. 110-5. Determining the amount of bail and conditions of release.(a) In determining the amount of monetary bail or conditions of release, if  any,  which will reasonably assure the appearance of a defendant as required or  the safety of any other person or the community and the likelihood of  compliance by the  defendant with all the conditions of bail, the court shall, on the  basis of available information, take into account such matters as the  nature and circumstances of the offense charged, whether the evidence  shows that as part of the offense there was a use of violence or threatened  use of violence, whether the offense involved corruption of public  officials or employees, whether there was physical harm or threats of physical  harm to any  public official, public employee, judge, prosecutor, juror or witness,  senior citizen, child, or person with a disability, whether evidence shows that  during the offense or during the arrest the defendant possessed or used a  firearm, machine gun, explosive or metal piercing ammunition or explosive  bomb device or any military or paramilitary armament,  whether the evidence  shows that the offense committed was related to or in furtherance of the  criminal activities of an organized gang  or was motivated by the defendant's  membership in or allegiance to an organized gang,  the condition of the  victim, any written statement submitted by the victim or proffer or  representation by the State regarding the  impact which the alleged criminal conduct has had on the victim and the  victim's concern, if any, with further contact with the defendant if  released on bail, whether the offense was based on racial, religious,  sexual orientation or ethnic hatred,  the likelihood of the filing of a greater charge, the likelihood of  conviction, the sentence applicable upon conviction, the weight of the evidence  against such defendant, whether there exists motivation or ability to  flee, whether there is any verification as to prior residence, education,  or family ties in the local jurisdiction, in another county,  state or foreign country, the defendant's employment, financial resources,  character and mental condition, past conduct, prior use of alias names or  dates of birth, and length of residence in the community,  the consent of the defendant to periodic drug testing in accordance with  Section 110-6.5,  whether a foreign national defendant is lawfully admitted in the United  States of America, whether the government of the foreign national  maintains an extradition treaty with the United States by which the foreign  government will extradite to the United States its national for a trial for  a crime allegedly committed in the United States, whether the defendant is  currently subject to deportation or exclusion under the immigration laws of  the United States, whether the defendant, although a United States citizen,  is considered under the law of any foreign state a national of that state  for the purposes of extradition or non-extradition to the United States,  the amount of unrecovered proceeds lost as a result of  the alleged offense, the  source of bail funds tendered or sought to be tendered for bail,  whether from the totality of the court's consideration,  the loss of funds posted or sought to be posted for bail will not deter the  defendant from flight, whether the evidence shows that the defendant is  engaged in significant  possession, manufacture, or delivery of a controlled substance or cannabis,  either individually or in consort with others,  whether at the time of the offense  charged he or she was on bond or pre-trial release pending trial, probation,  periodic imprisonment or conditional discharge pursuant to this Code or the  comparable Code of any other state or federal jurisdiction, whether the  defendant is on bond or  pre-trial release pending the imposition or execution of sentence or appeal of  sentence for any offense under the laws of Illinois or any other state or  federal jurisdiction, whether the defendant is under parole, aftercare release, mandatory  supervised release, or  work release from the Illinois Department of Corrections or Illinois Department of Juvenile Justice or any penal  institution or corrections department of any state or federal  jurisdiction, the defendant's record of convictions, whether the defendant has been  convicted of a misdemeanor or ordinance offense in Illinois or similar  offense in other state or federal jurisdiction within the 10 years  preceding the current charge or convicted of a felony in Illinois, whether  the defendant was convicted of an offense in another state or federal  jurisdiction that would  be a felony if committed in Illinois within the 20 years preceding the  current charge or has been convicted of such felony and released from the  penitentiary within 20 years preceding the current charge if a  penitentiary sentence was imposed in Illinois or other state or federal  jurisdiction, the defendant's records of juvenile adjudication of delinquency in any  jurisdiction, any record of appearance or failure to appear by  the defendant at  court proceedings, whether there was flight to avoid arrest or  prosecution, whether the defendant escaped or  attempted to escape to avoid arrest, whether the defendant refused to  identify himself or herself, or whether there was a refusal by the defendant to be  fingerprinted as required by law.  Information used by the court in its  findings or stated in or  offered in connection with this Section may be by way of proffer based upon  reliable information offered by the State or defendant.  All evidence shall be admissible if it is relevant and  reliable regardless of whether it would be admissible under the rules of  evidence applicable at criminal trials.  If the State presents evidence that the offense committed by the defendant  was related to or in furtherance of the criminal activities of an organized  gang or was motivated by the defendant's membership in or allegiance to an  organized gang, and if the court determines that the evidence may be  substantiated, the court shall prohibit the defendant from associating with  other members of the organized gang as a condition of bail or release.  For the purposes of this Section,  "organized gang" has the meaning ascribed to it in Section 10 of the Illinois  Streetgang Terrorism Omnibus Prevention Act.(a-5) There shall be a presumption that any conditions of release imposed shall be non-monetary in nature and the court shall impose the least restrictive conditions or combination of conditions necessary to reasonably assure the appearance of the defendant for further court proceedings  and protect the integrity of  the judicial proceedings from a specific threat to a witness or  participant. Conditions of release may include, but not be limited to, electronic home monitoring, curfews, drug counseling, stay-away orders, and in-person reporting. The court shall consider the defendant's socio-economic circumstance when setting conditions of release or imposing monetary bail.(b) The amount of bail shall be:(1) Sufficient to assure compliance with the     conditions set forth in the bail bond, which shall include the defendant's current address with a written admonishment to the defendant that he or she must comply with the provisions of Section 110-12 regarding any change in his or her address.  The defendant's address shall at all times remain a matter of public record with the clerk of the court.(2) Not oppressive.(3) Considerate of the financial ability of the     accused.(4) When a person is charged with a drug related     offense involving possession or delivery of cannabis or possession or delivery of a controlled substance as defined in the Cannabis Control Act, the Illinois Controlled Substances Act, or the Methamphetamine Control and Community Protection Act, the full street value of the drugs seized shall be considered.  "Street value" shall be determined by the court on the basis of a proffer by the State based upon reliable information of a law enforcement official contained in a written report as to the amount seized and such proffer may be used by the court as to the current street value of the smallest unit of the drug seized.(b-5) Upon the  filing of a written request demonstrating reasonable cause, the State's Attorney may request a source of bail hearing either before or after the posting of any funds.    If the hearing is granted, before the posting of any bail, the accused must file a written notice requesting that the court conduct a source of bail hearing. The notice must be accompanied by justifying affidavits stating the legitimate and lawful source of funds for bail.  At the hearing, the court shall inquire into any matters stated in any justifying affidavits, and may also inquire into matters appropriate to the determination which shall include, but are not limited to, the following:(1) the background, character, reputation, and     relationship to the accused of any surety; and(2) the source of any money or property deposited by     any surety, and whether any such money or property constitutes the fruits of criminal or unlawful conduct; and(3) the source of any money posted as cash bail, and     whether any such money constitutes the fruits of criminal or unlawful conduct; and(4) the background, character, reputation, and     relationship to the accused of the person posting cash bail.Upon setting the hearing, the court shall examine, under oath, any persons who may possess material information.The State's Attorney has a right to attend the hearing, to call witnesses and to examine any witness in the proceeding.  The court shall, upon request of the State's Attorney, continue the proceedings for a reasonable period to allow the State's Attorney to investigate the matter raised in any testimony or affidavit.    If the hearing is granted after the accused has posted bail, the court shall conduct a hearing consistent with this subsection (b-5).    At the conclusion of the hearing, the court must issue an order either approving or disapproving the bail.(c) When a person is charged with an offense punishable by fine only the  amount of the bail shall not exceed double the amount of the maximum penalty.(d) When a person has been convicted of an offense and only a fine has  been imposed the amount of the bail shall not exceed double the amount of  the fine.(e) The State may appeal any order granting bail or setting  a given amount for bail.(f)  When a person  is charged with a violation of an order of protection  under Section 12-3.4 or 12-30 of the Criminal Code of 1961 or the Criminal Code of 2012 or when a person is charged with domestic battery, aggravated domestic battery, kidnapping, aggravated kidnaping, unlawful restraint, aggravated unlawful restraint, stalking, aggravated stalking, cyberstalking, harassment by telephone, harassment through electronic communications, or an attempt to commit first degree murder committed against an intimate partner regardless whether an order of protection has been issued against the person,(1) whether the alleged incident involved harassment     or abuse, as defined in the Illinois Domestic Violence Act of 1986;(2) whether the person has a history of domestic     violence, as defined in the Illinois Domestic Violence Act, or a history of other criminal acts;(3) based on the mental health of the person;(4) whether the person has a history of violating the     orders of any court or governmental entity;(5) whether the person has been, or is, potentially a     threat to any other person;(6) whether the person has access to deadly weapons     or a history of using deadly weapons;(7) whether the person has a history of abusing     alcohol or any controlled substance;(8) based on the severity of the alleged incident     that is the basis of the alleged offense, including, but not limited to, the duration of the current incident, and whether the alleged incident involved the use of a weapon, physical injury, sexual assault, strangulation, abuse during the alleged victim's pregnancy, abuse of pets, or forcible entry to gain access to the alleged victim;(9) whether a separation of the person from the     alleged victim or a termination of the relationship between the person and the alleged victim has recently occurred or is pending;(10) whether the person has exhibited obsessive or     controlling behaviors toward the alleged victim, including, but not limited to, stalking, surveillance, or isolation of the alleged victim or victim's family member or members;(11) whether the person has expressed suicidal or     homicidal ideations;(12) based on any information contained in the     complaint and any police reports, affidavits, or other documents accompanying the complaint, the court may, in its discretion, order the respondent to undergo a risk assessment evaluation using a recognized, evidence-based instrument conducted by an Illinois Department of Human Services approved partner abuse intervention program provider, pretrial service, probation, or parole agency.  These agencies shall have access to summaries of the defendant's criminal history, which shall not include victim interviews or information, for the risk evaluation. Based on the information collected from the 12 points to be considered at a bail hearing under this subsection (f), the results of any risk evaluation conducted and the other circumstances of the violation, the court may order that the person, as a condition of bail, be placed under electronic surveillance as provided in Section 5-8A-7 of the Unified Code of Corrections. Upon making a determination whether or not to order  the respondent to undergo a risk assessment evaluation or to be placed under electronic surveillance and risk assessment, the court shall document in the record the court's reasons for making those determinations.  The cost of the electronic surveillance and risk assessment shall be paid by, or on behalf, of  the defendant. As used in this subsection (f), "intimate partner" means a spouse or a current or former partner in a cohabitation or dating relationship.   (Source: P.A. 99-143, eff. 7-27-15; 100-1, eff. 1-1-18; 102-28, eff. 6-25-21; 102-558, eff. 8-20-21.)(Text of Section after amendment by P.A. 101-652)Sec. 110-5. Determining the amount of bail and conditions of release.(a) In determining which or conditions of pretrial release, if  any,  which will reasonably assure the appearance of a defendant as required or  the safety of any other person or the community and the likelihood of  compliance by the  defendant with all the conditions of pretrial release, the court shall, on the  basis of available information, take into account such matters as:(1) the nature and circumstances of the offense     charged;(2) the weight of the evidence against the eligible     defendant, except that the court may consider the admissibility of any evidence sought to be excluded;(3) the history and characteristics of the eligible     defendant, including:(A) the eligible defendant's character, physical         and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past relating to drug or alcohol abuse, conduct, history criminal history, and record concerning appearance at court proceedings; and(B) whether, at the time of the current offense         or arrest, the eligible defendant was on probation, parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under federal law, or the law of this or any other state;(4) the nature and seriousness of the specific, real     and present threat to any person that would be posed by the eligible defendant's release, if applicable; as required under paragraph (7.5) of Section 4 of the Rights of Crime Victims and Witnesses Act;  and(5) the nature and seriousness of the risk of     obstructing or attempting to obstruct the criminal justice process that would be posed by the eligible defendant's release, if applicable.(b) The court shall impose any conditions that are mandatory under Section 110-10. The court may impose any conditions that are permissible under Section 110-10.(b-5)  When a person  is charged with a violation of an order of protection  under Section 12-3.4 or 12-30 of the Criminal Code of 1961 or the Criminal Code of 2012 or when a person is charged with domestic battery, aggravated domestic battery, kidnapping, aggravated kidnaping, unlawful restraint, aggravated unlawful restraint, stalking, aggravated stalking, cyberstalking, harassment by telephone, harassment through electronic communications, or an attempt to commit first degree murder committed against an intimate partner regardless whether an order of protection has been issued against the person,(1) whether the alleged incident involved harassment     or abuse, as defined in the Illinois Domestic Violence Act of 1986;(2) whether the person has a history of domestic     violence, as defined in the Illinois Domestic Violence Act, or a history of other criminal acts;(3) based on the mental health of the person;(4) whether the person has a history of violating the     orders of any court or governmental entity;(5) whether the person has been, or is, potentially a     threat to any other person;(6) whether the person has access to deadly weapons     or a history of using deadly weapons;(7) whether the person has a history of abusing     alcohol or any controlled substance;(8) based on the severity of the alleged incident     that is the basis of the alleged offense, including, but not limited to, the duration of the current incident, and whether the alleged incident involved the use of a weapon, physical injury, sexual assault, strangulation, abuse during the alleged victim's pregnancy, abuse of pets, or forcible entry to gain access to the alleged victim;(9) whether a separation of the person from the     victim of abuse or a termination of the relationship between the person and the victim of abuse has recently occurred or is pending;(10) whether the person has exhibited obsessive or     controlling behaviors toward the victim of abuse, including, but not limited to, stalking, surveillance, or isolation of the victim of abuse or victim's family member or members;(11) whether the person has expressed suicidal or     homicidal ideations;(11.5) any other factors deemed by the court to have     a reasonable bearing upon the defendant's propensity or reputation for violent, abusive or assaultive behavior, or lack of that behavior(c) In cases of stalking or aggravated stalking under Section 12-7.3 or 12-7.4 of the Criminal Code of 2012, the court may consider the following additional factors:(1) Any evidence of the defendant's prior criminal     history indicative of violent, abusive or assaultive behavior, or lack of that behavior. The evidence may include testimony or documents received in juvenile proceedings, criminal, quasi-criminal, civil commitment, domestic relations or other proceedings;(2) Any evidence of the defendant's psychological,     psychiatric or other similar social history that tends to indicate a violent, abusive, or assaultive nature, or lack of any such history.(3) The nature of the threat which is the basis of     the charge against the defendant;(4) Any statements made by, or attributed to the     defendant, together with the circumstances surrounding them;(5) The age and physical condition of any person     allegedly assaulted by the defendant;(6) Whether the defendant is known to possess or have     access to any weapon or weapons;(7) Any other factors deemed by the court to have a     reasonable bearing upon the defendant's propensity or reputation for violent, abusive or assaultive behavior, or lack of that behavior.(d) The Court may use a regularly validated risk assessment tool to aid its determination of appropriate conditions of release as provided for in Section 110-6.4. Risk assessment tools may not be used as the sole basis to deny pretrial release. If a risk assessment tool is used, the defendant's counsel shall be provided with the information and scoring system of the risk assessment tool used to arrive at the determination. The defendant retains the right to challenge the validity of a risk assessment tool used by the court and to present evidence relevant to the defendant's challenge.(e) If a person remains in pretrial detention after his or her pretrial conditions hearing after having been ordered released with pretrial conditions, the court shall hold a hearing to determine the reason for continued detention. If the reason for continued detention is due to the unavailability or the defendant's ineligibility for one or more pretrial conditions previously ordered by the court or directed by a pretrial services agency, the court shall reopen the conditions of release hearing to determine what available pretrial conditions exist that will reasonably assure the appearance of a defendant as required or the safety of any other person and the likelihood of compliance by the defendant with all the conditions of pretrial release. The inability of Defendant to pay for a condition of release or any other ineligibility for a condition of pretrial release shall not be used as a justification for the pretrial detention of that Defendant.(f)  Prior to the defendant's first appearance, the Court shall appoint the public defender or a licensed attorney at law of this State to represent the Defendant for purposes of that hearing, unless the defendant has obtained licensed counsel for themselves.(g) Electronic monitoring, GPS monitoring, or home confinement can only be imposed condition of pretrial release if a no less restrictive condition of release or combination of less restrictive condition of release would reasonably ensure the appearance of the defendant for later hearings or protect an identifiable person or persons from imminent threat of serious physical harm.(h) If the court imposes electronic monitoring, GPS monitoring, or home confinement the court shall set forth in the record the basis for its finding. A defendant shall be given custodial credit for each day he or she was subjected to that program, at the same rate described in subsection (b) of Section 5-4.5-100 of the unified code of correction.(i) If electronic monitoring, GPS monitoring, or home confinement is imposed, the court shall determine every 60 days if no less restrictive condition of release or combination of less restrictive conditions of release would reasonably ensure the appearance, or continued appearance, of the defendant for later hearings or protect an identifiable person or persons from imminent threat of serious physical harm. If the court finds that there are less restrictive conditions of release, the court shall order that the condition be removed. This subsection takes effect January 1, 2022.(j) Crime Victims shall be given notice by the State's Attorney's office of this hearing as required in paragraph (1) of subsection (b) of Section 4.5 of the Rights of Crime Victims and Witnesses Act and shall be informed of their opportunity at this hearing to obtain an order of protection under Article 112A of this Code.   (Source: P.A. 101-652, eff. 1-1-23; 102-28, eff. 6-25-21; 102-558, eff. 8-20-21.)