DETAINABLE OFFENSES under the Pretrial Fairness Act - PowerPoint Presentation

1. DETAINABLE OFFENSESunder the Pretrial Fairness Act Hon. Debra Schafer – 17th Judicial Circuit - Winnebago CountyOctober 27, 2022This is not an official resource of the Illinois Supreme Court

2. Pretrial Release725 ILCS 5/110-4All persons charged with an offense shall be eligible for pretrial release before conviction.Pretrial release may only be denied when a person is charged with an offense listed in 110-6.1 or when the defendant has a high likelihood of willful flight and after the court has held a hearing under 110-6.1.

3. What qualifies as a detainable offense?725 ILCS 5/110-6.1(a):Qualifying offense categories:Dangerousness (AKA “threat of safety” or “safety”) Standard (110-6.1(a)(1-6)); ANDWillful Flight Standard – (110-6.1(a)(7))

4. Standard of proof for dangerousness standard725 ILCS 5/110-6.1(e)State must show by clear and convincing evidence that:The proof is evident or the presumption great that the defendant has committed a detainable offense; ANDThe defendant poses a real and present threat to the physical safety of any person(s) OR in the case of a non-probationable forcible felony, to the community at large; ANDNo condition or combination of conditions can mitigate the real and present threat to any person(s) or to the community, if applicable.

5. Dangerousness Considerations725 ILCS 5/110-6.1(e)(2)Whether a defendant poses a real and present threat to the safety of a specific, identifiable person, the court’s considerations may include, but is not limited to, a forcible felony, the obstruction of justice, intimidation, injury, or abuse as defined in the IL Domestic Violence Act of 1986 (defined below). "Abuse" means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation but does not include reasonable direction of a minor child by a parent or person in loco parentis. 750 ILCS 60/103(1)

6. Factors in considering “dangerousness”725 ILCS 5/110-6.1(g)Considerations include, but not limited to, the following: Nature & circumstances of offense (Violent? Sex? Weapon?)History & characteristics of defendant – May consider defendant’s prior criminal or psychological history of violent, abusive or assaultive behavior, or a lack of such history. May consider evidence from any juvenile, family, quasi-criminal and civil proceedings.The identity of the person(s) at risk if defendant releasedStatements by defendant and surrounding circumstances Defendant’s age and physical condition and victim/complaining witness’ age and physical conditionAny history of weapon possession or access to weaponsWhether defendant on state or federal probation, MSR, or on release pending trial, sentencing, appeal, etc.Anything else with reasonable bearing on propensity for violent, assaultive or abusive behavior, or a lack of it

7. Detainable offenses under dangerousness standard110-6.1(a)(1) - Non-probationable Forcible Felonies110-6.1(a)(2) - Stalking/Aggravated Stalking110-6.1(a)(3) – Victim = family/household member AND deft is subject to OP at the time of the arrest OR previously convicted of VOP or a violent offense against a family/household member110-6.1(a)(4) – Domestic Battery/Aggravated Domestic Battery110-6.1(a)(5) – Sex offenses110-6.1(a)(6) – certain Gun and Human Trafficking offenses

8. Definition of forcible felony720 ILCS 5/2-8Treason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping, aggravated battery resulting in GBH or permanent disability or disfigurement and any other felony which involves the use or threat of physical force or violence against any individual.

9. Non-probationable forcible felonies725 ILCS 5/110-6.1(a)(1)Must be both “non-probationable” AND a “forcible felony”This includes many Class X felonies like aggravated battery with a firearm, armed robbery, predatory criminal sexual assault, and aggravated criminal sexual assault.

10. Non-probationable forcible felonies725 ILCS 5/110-6.1(a)(1)There are lower class felonies that also qualify for detention, for example:Residential burglary - Class 1Aggravated battery to senior citizen (causing GBH) – Class 2Criminal Sexual Assault – Class 1

11. Common probationable forcible feloniesExamples of common forcible felonies that are NOT detainable under the dangerousness standard because they ARE probationable and are NOT one of the enumerated offenses under 110-6.1:Aggravated Battery involving GBH or permanent injury or disfigurementRobberyBurglaryArson

12. Non-enumerated forcible feloniesThe definition of forcible felonies is flexible and includes other offenses, depending on the facts based on the residual clause language: “any other felony which involves the use or threat of physical force or violence against any individual.”If the offense is not an enumerated forcible felony, the burden is on the state to present evidence at the detention hearing in support of their theory that a particular offense is a forcible felony.

13. Non-probationable forcible felonies725 ILCS 5/110-6.1(a)(1)A judge can order detention only if:The defendant poses a specific, real and present threat to any person or the community; ANDNo condition or set of conditions can mitigate the real and present threat to any person(s).This is the only provision under the dangerousness standard in which a judge can consider a threat to the community at large.

14. Stalking & Aggravated Stalking725 ILCS 5/110-6.1(a)(2)A judge can order detention only if: The defendant poses a real and present threat to the physical safety of the victim; ANDDenial of release is necessary to prevent fulfillment of the threat upon which the charged is based; ANDNo condition or set of conditions can mitigate the real and present threat to the physical safety of the victim.

15. Offenses against family or household members725 ILCS 5/110-6.1(a)(3)A judge can order detention only if:The victim is a family or household member;AND The defendant is subject to an OP at the time of arrest; OR The defendant had previously been convicted of VOP or a violent offense against a family or household member;ANDThe defendant poses a real and present threat to the physical safety of any person or persons.

16. Implications of 110-6.1(a)(3)First, the obvious: Someone charged with VOP against a family or household member is detainable. But under this section, an otherwise non-detainable offense against a family or household member may become detainable for a particular defendant because of his or her prior criminal history.For example, a CDTP or Unlawful Restraint or CTR to a family or household member would become detainable if the defendant has a prior VOP or Agg Batt or other violent offense conviction involving a family or household member.

17. Family or household member defined750 ILCS 60/103(6)"Family or household members" include spouses, former spouses, parents, children, stepchildren and other persons related by blood or by present or prior marriage, persons who share or formerly shared a common dwelling, persons who have or allegedly have a child in common, persons who share or allegedly share a blood relationship through a child, persons who have or have had a dating or engagement relationship, persons with disabilities and their personal assistants, and caregivers as defined in Section 12-4.4a of the Criminal Code of 2012. For purposes of this paragraph, neither a casual acquaintanceship nor ordinary fraternization between 2 individuals in business or social contexts shall be deemed to constitute a dating relationship. In the case of a high-risk adult with disabilities, "family or household members" includes any person who has the responsibility for a high-risk adult as a result of a family relationship or who has assumed responsibility for all or a portion of the care of a high-risk adult with disabilities voluntarily, or by express or implied contract, or by court order.

18. VOPs725 ILCS 5/110-6.1(a)(3)“Violations of orders of protection” under this section means violations of domestic violence orders of protection (both civil and criminal), NOT stalking/no contact orders or civil no contact orders.

19. Domestic Battery & Agg Dom Batt725 ILCS 5/110-6.1(a)(4)A judge can order detention only if:The defendant poses a real and present threat to the physical safety of any person or persons; AND No condition or combination of conditions can mitigate the real and present threat to the physical safety of any person(s).

20. Sex offenses725 ILCS 5/110-6.1(a)(5)A judge can order detention only if:The defendant poses a real and present threat to the physical safety of any person or persons; AND No condition or combination of conditions can mitigate the threat.Includes every sex offense listed in Article 11 except public indecency, adultery, fornication and bigamy.

21. Enumerated Gun and Human Trafficking Offenses725 ILCS 5/110-6.1(a)(6)List of specifically enumerated offenses, but generally they are all gun- or human trafficking-related including, but not limited to:Agg discharge of a firearmReckless discharge of a firearmArmed habitual criminalUnlawful use/possession of a weapon by a felonInvoluntary servitude

22. Enumerated Gun and Human Trafficking Offenses725 ILCS 5/110-6.1(a)(6)Includes only non-probationable versions of:Aggravated unlawful use/possession of a weapon (720 ILCS 5/24-1.6)Aggravated possession of a stolen firearm (720 ILCS 5/24-3.9)

23. Enumerated Gun & Human Trafficking Offenses725 ILCS 5/110-6.1(a)(6)A judge can order detention only if:The defendant poses a real and present threat to the physical safety of any specifically identifiable person or persons; AND No condition or combination of conditions can mitigate the real and present threat to the physical safety of any specifically identifiable person(s).

24. Willful Flight Standard725 ILCS 5/110-6.1(a)(7)Judge can order detention of a defendant charged with any felony listed in (a)(1)-(a)(5) OR any Class 3 or greater felony who has a high likelihood of willful flight to avoid prosecution.Any felony, including Class 4s, listed in (a)(1)-(a)(5), but NOT misdemeanors(a)(1)-(a)(5), NOT (a)(6) – certain gun and human trafficking offensesThis means willful flight cannot be a basis to detain a defendant charged with misdemeanor Dom Batt or VOP (because not felonies) or for reckless discharge of a firearm or Agg UUW (because they are Class 4s covered by (a)(6), not 1-5)

25. Willful Flight defined725 ILCS 5/110-1(e)“Willful flight” means planning or attempting to intentionally evade prosecution by concealing oneself. Simple past non-appearance in court alone is not evidence of future intent to evade prosecution.

26. Standard of Proof for Willful Flight725 ILCS 5/110-6.1(e)State must show by clear and convincing evidence that:The proof is evident or the presumption great that the defendant has committed a detainable offense; ANDNo condition or combination of conditions can mitigate the risk of defendant’s willful flight.