Illinois Eliminates The Statute of Limitations for Child Sex Crimes

Illinois has now eliminated the statute of limitations for commencing a criminal prosecution in certain sex offenses involving a minor (under the age of 18 years at the time of the offense).

Previously, the law in Illinois stated that a minor victim of sexual assault (under the age of 18 at the time of the offense) must file criminal charges twenty years after attaining the age of 18. Which previously meant that charges must be filed before the “victim’s” 38th birthday. This is no longer the case in Illinois.

The new law (SB189) passed by both the Illinois Senate and Illinois House, and approved by the Governor now eliminates the Statute of Limitations in its criminal prosecutions for child sex cases.

SB189 provides in pertinent part:

720 ILCS 5/3-6(j)(1) When the victim is under 18 years of age at the time of the offense, a prosecution for criminal sexual assault, aggravated criminal sexual assault, predatory criminal sexual assault of a child, aggravated criminal sexual abuse, or felony criminal sexual abuse may be commenced at any time when corroborating physical evidence is available or an individual who is required to report an alleged or suspected commission of any of these offenses under the Abused and Neglected Child Reporting Act fails to do so.

So essentially, a prosecution for the above-named sex offenses in relation to minors can be filed at any time. Additionally, the new law eliminates the requirement that corroborating physical evidence be available. The new law also eliminates the requirement that an individual must fail to report any of these offenses under the Abused and Neglected Child Reporting Act.

Note: The new law is not without its restrictions.

The primary restriction of the bill is that the law is not “retroactive.” What not being retroactive means is that a new law does not apply to incidents prior to the new law’s enactment, August 11, 2017. An example to best illustrate the issue of retroactively in this context is as follows:

  •  If an individual was 38 years old (20 years after attaining one’s 18th birthday after the alleged sexual abuse) prior to the enactment date of the new law, the old law still applies. Basically, if the individual turned 38 years old on August 10, 2017, the twenty-year requirement to commence a criminal prosecution under the old law had expired and still applies. The new law would not apply since it was passed on August 11, 2017, thus, it was not in effect at the time the statute of limitations under the old law expired.

The Change in the Statute of Limitations Applies to Criminal Cases Only, Not Civil Cases

It should also be noted that this bill ONLY APPLIES to the commencement of criminal prosecutions for the above-mentioned types of sex offenses. The bill does not apply to filing a civil case. Criminal and Civil laws differ in purpose:

  • The purpose of a criminal law is to protect society from criminal wrongdoing and to punish the wrongdoer.
  • The purpose of a civil law is to give a person who was sexually abused the right to seek monetary compensation from the alleged perpetrator.

The current Statute of Limitations for filing a civil cause of action in the civil courts is 20 years after the victim’s 18th birthday (i.e. the person’s 38th birthday).

However, A bill (HB 3629) has recently been proposed to eliminate the 20-year statute of limitations requirement in its entirety for civil cases. The objective of the new bill would give victims the opportunity to file a civil case at ANY TIME without any time limitations for filing. It currently is awaiting House approval before proceeding to the Senate.

Conclusion:

If you or someone you know is a victim of a sex crime when they were a minor, it is important to consult with an experienced attorney. An experienced attorney will determine whether the statute of limitations either civilly or criminally allows or eliminates an action.

If you or someone you know has been charged or is under investigation for a sex crime, it is imperative you speak to an experienced criminal defense attorney. It is imperative to consult an experienced criminal defense attorney who is well versed in not only the nuances and complexities of sex crimes, but the nuances and complexities posed when the issue of an extended statute of limitations arises.

Contact Wigell Criminal Defense to speak to an experienced attorney regarding these types of charges.

Charges: Aggravated Criminal Sexual Abuse-Class 2 Felony (3-7 Years IDOC); Potential Result: 3-7 years prison; Lifetime Sex Offender Registration Requirement; WCD RESULT: PROBATION ON A REDUCED CHARGE OF MISDEMEANOR BATTERY; NO PRISON TIME; NO FELONY CONVICTION; NO MANDATORY LIFETIME SEX OFFENDER REGISTRATION REQUIREMENT

Our client, a successful businessman, was charged with Aggravated Criminal Sexual Abuse. Specifically, a 12 year old friend of his daughter accused our client of touching her in an inappropriate sexual manner one night during a sleepover.

The charge of Aggravated Criminal Sexual Abuse is broken down as follows:

  • Aggravated Criminal Sexual Abuse
    • Aggravated Criminal Sexual Abuse is a class 2 felony punishable from 3-7 Years in the penitentiary (Illinois Department of Corrections)
    • An individual convicted of Aggravated Criminal Sexual Abuse must serve at least 50% of their sentence before being eligible for Mandatory Supervised Release (Formerly Known as Parole).
    • A conviction of this charge requires MANDATORY LIFETIME SEX OFFENDER REGISTRATION.

Fearful of the implications this charge could have on his future, career and family; the client hired Wigell Criminal Defense to represent him. After a detailed and methodical review of the discovery and multiple meetings with the client, it was determined that the State’s case had multiple weaknesses and the case should be taken to trial.

As the case progressed, the Assistant State’s Attorney assigned to the case filed a 115-10 Motion. This type of motion is typically filed to allow certain statements admitted into evidence at a trial which would be normally considered hearsay.  Hearsay can be defined as a statement made by someone not testifying in court that to be used as evidence to show that a defendant committed a crime (the truth of the matter asserted).  Hearsay is typically prohibited from being introduced as evidence at trial outside of various exceptions enumerated in the law.  In this case, Illinois law has a Statutory exception under 725 ILCS 5/115-10 that allows for out of court statements in cases involving a physical or sexual act perpetrated against a child who is under the age of 13.  This allows “outcry” witnesses to testify in court to an out of court statement the child made to them.

In our client’s case, the complaining witness made an “outcry statement” to two witnesses regarding the alleged sexual touching she accused our client of committing against her. The attorneys of Wigell Criminal Defense acknowledged the filing of this motion and indicated their opposition to the motion and the intention of taking the case to jury trial.

While preparing for the 115-10 Motion Hearing and trial, Wigell Criminal Defense continued to negotiate. After significant negotiations, the assistant state’s attorney agreed to reduce the felony charge of Aggravated Criminal Sexual Abuse to a misdemeanor charge of battery.  Thus, all sex charges were eliminated. THIS RESULT ELIMINATED A FELONY CONVICTION AND LIFETIME SEX OFFENDER REGISTRATION.

The client accepted the offer without hesitation. The client was grateful for the all the hard work and dedication the attorneys and staff of Wigell Criminal Defense put into his case.  This result protected his career and ultimately saved his future.  Additionally, the client will be eligible to have the misdemeanor battery conviction sealed after the requisite waiting period has passed.

Charges: Aggravated Kidnapping-(Class X-6-30 Years in prison (Illinois Department of Corrections)); Aggravated Criminal Sexual Assault (Class X-6-30 Years in prison (Illinois Department of Corrections)); Aggravated Criminal Abuse (Class 2-3-7 Years in prison (Illinois Department of Corrections)) Potential Result: 12-60 Years IDOC, Lifetime Sex Offender Registration Requirement; Wigell Criminal Defense Result: 30 Days Cook County Jail; 30 Days Swap; 24 Months Probation; NO SEX OFFENSE CONVICTION; NO SEX OFFENDER REGISTRATION REQUIREMENT

Our client was accused of sexually assaulting a woman he went on a date with after meeting her on the Internet website, Backpage.com. Specifically, our client was charged with four (4) counts of Aggravated Kidnapping, two (2) counts of aggravated criminal sexual assault and two (2) counts of aggravated criminal sexual abuse.

The breakdown of his charges is as follows:

  • Aggravated Kidnapping: This charge is NON-PROBATIONABLE.
    • Aggravated Kidnapping is a Class X Felony punishable from 6-30 Years in the penitentiary
    • If convicted of aggravated kidnapping, Defendant must serve a mandatory minimum sentence of 6 years and must serve a minimum 85% of his sentence before being eligible for Mandatory Supervised Release (Formerly Known as Parole).
  • Aggravated Criminal Sexual Assault: This charge is NON-PROBATIONABLE
    • Aggravated Criminal Sexual Assault is a Class X Felony punishable from 6-30 Years in the penitentiary.
    • These charges require mandatory consecutive sentencing meaning that if the individual is convicted of more than one count, that the sentences imposed on each count would run one after another
    • If convicted of aggravated criminal sexual assault, Defendant must serve a mandatory minimum sentence of 6 years and must serve a minimum 85% of his sentence before being eligible for Mandatory Supervised Release (Formerly Known as Parole).
    • A conviction on this charge also requires a MANDATORY LIFETIME sex offender registration requirement.
  • Aggravated Criminal Sexual Abuse
    • Aggravated Criminal Sexual Abuse is a class 2 felony punishable from 3-7 Years in the penitentiary
    • An individual convicted of Aggravated Criminal Sexual Abuse must serve at least 50% of their sentence before being eligible for Mandatory Supervised Release (Formerly Known as Parole).
    • This charge is probationable. However, a conviction of this charge requires MANDATORY LIFETIME sex offender registration.

After interviewing multiple attorneys and doing his research, the client retained Wigell Criminal Defense to represent him in his serious and complex matter. The Wigell Criminal Defense team immediately began preparing the case.

After analyzing the discovery and conducting a diligent defense investigation, the attorneys at Wigell Criminal Defense were able to develop a theory of defense for trial. The attorneys at Wigell Criminal Defense determined that the incident was a consensual sexual encounter between their client and the complaining witness.  She had posted an ad on Backpage.com for a “Sugar Daddy” in exchange for “Time and Companionship.”  Time and Companionship was innuendo for money in exchange for sexual favors.  The complaining witness was scorned towards the client for “shorting her” on payment for “time and companionship.”  She went to the police and fabricated sexual assault allegations.

The Wigell Criminal Defense team of Attorneys and Paralegals determined that this was a case that had to be set for trial. After filing and arguing a series of pretrial motions which resulted in many favorable rulings for our client, the prosecutor made an offer.  The prosecutor offered the client sex offender probation.  This would require LIFETIME sex offender registration.

This offer was rejected. Raymond Wigell, Senior Trial Attorney of Wigell Criminal Defense continued to negotiate. Further negotiations resulted in the prosecutor reducing her initial offer to a charge with a 10-year requirement of sex offender registration.  Reluctant to accept this offer due to the sex offender registration requirement having the potential to ruin his career, Attorney Raymond Wigell continued aggressive negotiations while simultaneously preparing for trial.

After making the prosecutor aware of the multiple weaknesses in the case including credibility issues, the State made an offer which was extraordinary under the circumstances.

In exchange for a plea of guilty on amended felony charges of kidnapping and aggravated battery, the client would be placed on 2 years of probation with a requirement to serve 30 days in Cook County Jail and perform 30 days of SWAP. THIS DISPOSITION AVOIDED PRISON AND AVOIDED REGISTERING AS A SEX OFFENDER.

After discussing the matter in detail with the attorneys of Wigell Criminal Defense and considering all options, the client accepted the offer. The client did not want to risk being found guilty at trial and sentenced to a mandatory minimum of 12 years in prison or more and registration as a sex offender.

This result was best for the client to protect his professional career, avoid a lengthy prison sentence and avoid any registration as a sex offender. We never, never give up.

Truth in Sentencing: Receiving Credit for Time Served Outside of Jail-EHM v. Pretrial Services

When an individual is charged with a crime and awaiting trial, they are subject to pretrial detention. While most people perceive the notion of pretrial detention as being in custody at the county jail, there are other forms of pretrial detention that don’t require an individual to necessarily be incarcerated.

While someone is in custody in jail awaiting disposition of their case, they receive credit for time served in jail for any sentence of prison time imposed by a plea of guilty or finding of guilty. (Ex. A person who serves one year in jail would have that time subtracted from a prison sentence of 2 years thus leaving 1 year).  The calculation should be made from the day of the individual’s arrest to the day of the disposition of their case.  All individuals in custody of Cook County Jail are eligible for time served credit with a few exceptions ranging from committing a crime while in custody to receiving a natural life sentence.

However, time served can be extended to another form of pretrial detention outside of Cook County Jail. Another form of pretrial detention where an individual could receive credit for time served is known as EHM (Electronic Home Monitoring).  EHM is sometimes known to the general public as “House Arrest” or “Home Confinement.” This form of pretrial detention requires an individual to wear an ankle bracelet that monitors their movements.  Typically, the individual is confined to their home for the duration of their case. In some instances, the individual is allowed movement outside of the home for limited purposes including going to work, church, doctor’s appointments, ect. This form of pretrial detention is typically governed under the control of the Sheriff’s Department.  Being under the supervision of the Sheriff’s Department considers the individual to be “in custody” for the purposes of time served.

This form for pretrial detention should not be confused with GPS monitoring through pretrial services. GPS monitoring requires an individual to wear a GPS monitor on their ankle.  The purpose of the GPS monitor allows pretrial to monitor the individual’s movements.  A GPS is typically fitted to keep an individual away from a specific person or place that is the subject of the charged offense.  The individual however would not be eligible for time served in this situation.  Since the GPS monitor is governed by pretrial services, a person is not considered to be “in custody” for these purposes.  Since an individual on a GPS is free from any actual detention and their freedom is not “restricted” under the supervision of pretrial services, they are not considered in custody for the purposes of time served.

However, it should be noted that being on EHM does not necessarily guarantee an individual will receive credit for time served. There are exceptions that disqualify an individual from receiving credit for time served on EHM.  The main exception to the specific offense the individual is on EHM for.  If an offense falls under 730 ILCS 5/5-5-3, then the offense would not qualify for time served credit under EHM.  For example, a person on EHM for a pending charge of Criminal Sexual Assault would NOT be eligible for sentencing credit due to the nature of the offense enumerated under 730 ILCS 5/5-5-3.

When someone is on EHM while awaiting trial, they should consult with their experienced criminal defense attorney regarding the issue of time served. This is an important aspect that should be analyzed when evaluating the issue of time served when an individual is considering entering a plea of guilty or evaluating the amount of time a person is facing if they lose at trial.  This analysis is critical when determining the course of action to take in that individual’s case and should be conducted in a meticulous and detailed manner.

Truth in Sentencing: Ways to Reduce Prison Sentences

When an individual has been either convicted of a crime or pleads guilty to a crime and receives a sentence of prison time, the sentence imposed does not necessarily mean that the individual will do the entirety of the imposed sentence. When someone is sentenced to a term of imprisonment, that individual may have options and opportunities to have their sentence reduced while in IDOC (Illinois Department of Corrections).

There are three typical methods than an individual can receive sentencing credit to ultimately have their sentences reduced while serving time in IDOC. The three ways inmates can receive additional sentencing credit at IDOC is through statutory sentencing credit, program sentence credit and supplemental sentence credit.  The opportunities for credit are as follows:

Statutory Sentencing Credit: Statutory sentencing credit is credit that is awarded for most types of offenses pursuant to Illinois sentencing Statute.  For example, some felony offenses offer day for day credit which basically means a person will serve only 50% of their sentence if they do not have any behavioral or disciplinary issues while incarcerated in IDOC.  Other sentences require an individual to serve 75%, 85% or even 100% of their sentence based on good behavior.

Program Sentencing Credit: Program sentencing credit is credit an individual can accrue while serving time in IDOC.  Specifically, an individual can obtain additional credit towards their sentence by participating in classes and programs offered by IDOC.  These classes can range from cooking classes, GED classes to trade classes.  There are also eligibility requirements to qualify for receiving additional sentencing credit from these classes which are classified into three levels:

  • Certain offenders are eligible to have 0.5 days of credit per day of classes taken (Ex. 30 days of class =15 days of sentencing credit).
  • Other offenders can be eligible for 0.25 days of credit if they don’t meet the requirements of the 0.5 days of credit (Ex. 28 days of class = 7 days of sentencing credit).
  • Then certain offenders are ineligible to receive credit for participating in classes but are usually not prohibited from taking the classes.

Eligibility criteria is usually based upon the individual’s disciplinary history and the nature of the offense for which they were either convicted of or plead guilty to. If the individual has a history of disciplinary issues, then they may be disqualified from receiving sentencing credit.  If an individual has been convicted of a specific offense, for example first degree murder, then they would not be eligible for any program credit.

Supplemental Sentence Credit: Supplemental Sentence Credit is sentencing credit that an individual could receive at the end of their sentence.  This credit is not mandatory and it is at the discretion of IDOC to award this credit to an offender.  An individual could be eligible for either 90 days or 180 days off their sentence.  The amount of days awarded are based upon the nature of the offense the individual is serving time for.  For example, a sentence for Aggravated Criminal Sexual Assault only allows an individual a possible 90 days credit at the end of their sentence due to the nature of the offense.  While most offenses are eligible for the supplemental sentence credit, certain offenses may not be eligible such as convictions for first degree murder and domestic terrorism.  An offender must have at least served a minimum time of 60 days or as close to 60 days the sentence would allow to be eligible for the credit.

When an individual is imprisoned in IDOC, they should make every attempt to utilize all the opportunities available to reduce their prison sentence. This also gives the individual not only the opportunity for an early release to get back to their loved ones sooner, but it also allows the opportunity for an individual to better themselves in prison.  It gives them the opportunity to learn new skills and trades that could be beneficial when re-entering society after release.  After the individual is assigned to a prison in IDOC, they should immediately consult with their assigned counselor to determine their eligibility and opportunities for additional sentencing credit.

Truth in Sentencing: Consecutive vs. Concurrent Sentencing

In Illinois, when someone is either convicted or pleads guilty to a crime, they are subject to the sentencing parameters of that specific crime. When someone is either convicted or pleads guilty, their attorney should make them the aware of the possible sentences and penalties of their specific charge.  One concept an individual should be made aware of in regards to sentencing is the concept of consecutive versus concurrent sentencing.  When someone is charged with more than one offense or has multiple counts of the same offense, an analysis must be made whether those sentences would run consecutively or concurrently.

Section 730 ILCS 5/5-8-4 in the Illinois Unified Code of Corrections outline all of the offenses in Illinois as to what sentences run consecutive and concurrent. Consecutive and Concurrent are defined as follows:

CONCURRENT sentencing is when someone is convicted of either multiple offenses or counts, that the sentences imposed on each separate charge or count would run AT THE SAME TIME. For example, if someone is convicted of Armed Robbery and Aggravated Kidnapping and receives a sentence for six years on each offense, those sentences would run AT THE SAME TIME.  This concept also applies to a person serving a term for a felony and misdemeanor offense at the same time, as well as if the individual is already imprisoned in Illinois or another jurisdiction for another offense unless the offense is consecutive under Illinois law.

CONSECUTIVE sentencing is when someone is convicted of either multiple offenses or counts, that the sentences imposed on each separate charge or count would run one after another. For Example, if an individual is convicted on five counts of Predatory Criminal Sexual Assault and received a sentence for 6 years on each count, those sentences would run one after another thus resulting in the individual serving 30 years in The Illinois Department of Corrections.

Most of the time, consecutive sentencing is mandated by statute and the Judge cannot deviate from mandatory consecutive sentencing. There is also a concept known as permissive consecutive sentencing.  The court has discretion impose permissive consecutive sentencing under limited circumstances.  Those limited circumstances are as follows:

(c) Consecutive terms; permissive. The court may impose consecutive sentences in any of the   following circumstances:

(1) If, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is the opinion of the court that consecutive sentences are required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.

(2) If one of the offenses for which a defendant was convicted was a violation of Section 32-5.2 (aggravated false personation of a peace officer) of the Criminal Code of 1961 (720 ILCS 5/32-5.2) or a violation of subdivision (b)(5) or (b)(6) of Section 17-2 of the Criminal Code of 1961 or the Criminal Code of 2012 (720 ILCS 5/17-2) and the offense was committed in attempting or committing a forcible felony.

Sentencing is a very complex legal concept. An individual and their attorney must be aware of all sentencing concepts and parameters in their case.  Because the knowledge of consecutive and concurrent sentencing is imperative to how to approach a criminal case.  Not having the knowledge of consecutive and concurrent sentencing concepts can have devastating results upon a client’s case.  Wigell Criminal Defense has handled many cases involving consecutive and concurrent sentencing for over 40 years.  Please don’t hesitate to contact us regarding your case.  We are here to help.

 

Aggravated Possession of Child Pornography & Possession of Child Pornography-34 Counts; Mandatory Minimum Sentence: 139 Years in IDOC; Result: Less than 6 months IDOC

Our client was charged with the offenses of Possession of Child Pornography and Aggravated Possession of Child Pornography. Our client was charged with a total of 34 counts between the two offenses.  Specifically, he was accused of downloading multiple images and videos depicting pornographic images of children under the age of 18 years old and under the age of 13 years old.  To also make the accusations more serious in nature, our client who was a First responder was accused of downloading the images and videos while on duty.

Aggravated Possession of Child Pornography is a Class X Felony. Possession of Child Pornography can either be a Class 1, Class 2 or Class 3 Felony depending on the nature of the alleged image and whether the image is a video or a picture.  Both types of possession charges are also subject to mandatory consecutive sentencing.  Mandatory consecutive sentencing is a form of sentencing that requires an individual who either pleads guilty or is found guilty on two or more counts of this type of charge to serve a sentence on each count consecutive to each other.  This basically means the sentences on each count follow one another.  The client must serve 50% of his sentence before being placed on MSR (Mandatory Supervised Release) formerly known as parole.

The counts are broken down as follows:

14 Counts of Aggravated Child Pornography-Class X: 6-30 Years

1 Count of Possession of Child Pornography-Class 1: 4-15 Years

16 Counts of Possession of Child Pornography-Class 2: 3-7 Years

3 Counts of Possession of Child Pornography-Class 3: 2-5 Years

Our client, fearful of the potential life sentence these charges carried, hired Wigell Criminal Defense to represent him in his case. The prosecutor in this matter came to the attorneys of Wigell Criminal Defense and made an offer which would require the client to spend a significant amount of time in prison.  The prosecutor also wanted the client to plead guilty to a charge that would not allow the client to received credit for time served on EHM (Electronic Home Monitoring).

When an individual is placed on EHM, also known as house arrest, there are some instances where an individual can receive credit for time served as they would be considered “in custody” for those purposes. However, there are instances where an individual would not receive credit for time served on house arrest.  In this instance, the client was not eligible for credit for time served under the State’s current offer due to the State seeking the client to plead guilty to one of the Class X counts.

The prosecutor was maintaining the position that the client needed to do significant time in IDOC due to the nature of the offenses and that they were committed while client was working as a First responder.

The attorneys at Wigell Criminal Defense then engaged in aggressive negotiations of the State. The aggressive negotiations included pointing out the weaknesses of the State’s case and potential ramifications of proceeding to trial.

After taking into consideration the position of the attorneys of Wigell Criminal Defense, the State acquiesced and agreed to an offer that allowed the client to receive time served on a class 2 charge of possession of child pornography which resulted in the client having to spend less than 6 months in prison.

The client was happy that an excellent result was achieved under the circumstances. The client was relieved that he would finally be able to leave house arrest and serve a short prison sentence.  He was relieved that he could finally put this situation behind him and move on with his life.

Senior Attorney Raymond G. Wigell Featured on ABC 7 Chicago Nightly News – September 21, 2016

Senior attorney Raymond G. Wigell appeared at the Cook County Courthouse located at 2650 S. California in Chicago, Illinois, on September 21, 2016, to do a bond hearing in a criminal matter involving a Catholic priest from the Archdiocese of Chicago and the alleged possession of Child Pornography. The story was covered by ABC-7 Chicago, among many other national news networks, including the Chicago Tribune, the Sun-Times, and Telemundo.

Watch the clip below:

http://abc7chicago.com/video/embed/?pid=1521241

My Loved One’s Bail is Too High; Can It Be Reduced?

In many criminal cases, and certainly with regard to felony cases, a judge will set a bond. In Illinois, ten percent of the stated bond amount must be posted in order for a person to be released from custody. That is, if the judge orders a person held on a $500,000 D-bond (where the D stands for “deposit”), that means that the person must post $50,000 or remain in jail awaiting trial.

 

For many people, $50,000 is a significant amount of money that cannot be obtained easily or quickly. For some people, $5,000 is a significant amount of money to gather in a short period of time. And for some, $500 is a significant amount of money to come up with. Money is relative, and it all depends on the individual defendant and his or her support group that is marshaling the resources to get these funds together for the purpose of bond.

 

If your loved one is in custody on a bond that is too high for you to post on their behalf, it is important to contact an experienced criminal defense attorney to do what is called a Motion to Reduce Bond, or a Motion for Bond Reduction.

 

725 ILCS 5/110-6 states in part, “Upon verified application by the State or the defendant or on its own motion, the Court before which the proceeding is pending may increase or reduce the amount of bail or may alter the conditions of bail bond or grant bail where it has been previously revoked or denied.”

 

What this means is that bond, once set, is not written in stone. The State may do a motion (that is, make a request) for the bond to be increased or decreased. It is extremely rare for the State to ask for bond to be decreased; they almost always ask for a bond increase. The Judge may examine the bond and increase or decrease it on his or her own motion. The Defendant may also ask for the bond to be increased or decreased – although it would be very rare for a defendant to ask that it be increased, as most defendants in custody are eager to be released.

 

An experienced criminal defense attorney will make a proper request for the bond to be reduced in a case where it is set too high for the person to be able to post. A proper Motion to Reduce Bond requires a detailed mitigation intake, either with the defendant himself or, if that is not feasible, with a family member or friend that knows the defendant, and is aware of important information about his or her life. Common factors in mitigation, which are used for the Motion to Reduce Bond, include things like education, work history, family, and other community involvement.

 

Another way to make a strong argument to reduce bond is to make the Court aware of new information that was not made available to the Court during the first bond hearing, when the bond was initially set.

 

The Motion to Reduce Bond should be written in the proper format and timely filed with the court, allowing for three days’ notice to the State before it can be heard by the Judge. The Judge will typically hear arguments, from both the Defendant and the State, and then make a decision as to whether or not bond should be decreased, or kept the same.

 

It is very unusual to get the bond reduced by more than half of the initial bond amount. That is, if the bond was originally set at $50,000, it would be very unlikely to get it reduced to less than $25,000.

 

If a Motion to Reduce Bond has been heard and denied, that does not mean that it cannot be done again. A second Motion to Reduce Bond can be drafted, filed, and heard. However, with each successive Motion to Reduce Bond, its likelihood of success becomes less and less. What is most helpful to additional motions to reduce bond is new information, or a change in the defendant’s circumstances.

 

So if your loved one is in custody and the bond is too high for him or her to afford, do not lose hope. Hire an experienced criminal defense attorney and request that they file a Motion to Reduce Bond to try to convince the judge to reduce the amount that must be posted.

New Law Regarding How Persons Pleading Guilty Are Admonished, Effective January 1, 2017.

Last week, Illinois’ Governor signed into law a change in how persons pleading guilty to criminal offenses are admonished. Public Act 82-553 amends 725 ILCS 5/113-4 to require that the court must admonish a defendant pleading guilty to many of the collateral consequences attendant to that plea.

The new law states that “(i)f the defendant pleads guilty such plea shall not be accepted until the court shall have fully explained to the defendant the following: (1) the maximum and minimum penalty provided by law for the offense which may be imposed by the court; (2) as a consequence of a conviction or a plea of guilty, the sentence for any future conviction may be increased or there may be a higher possibility of the imposition of consecutive sentences; (3) as a consequence of a conviction or a plea of guilty, there may be registration requirements that restrict where the defendant may work, live or be present; and (4) as a consequence of a conviction or a plea of guilty, there may be an impact upon the defendant’s ability to, among others (A) retain or obtain housing in the public or private market; (B) retain or obtain employment; and (c) retain or obtain a firearm, an occupational license, or a driver’s license.”

Public Act 82-553 is effective January 1, 2017 and will help eliminate future surprises for those who plea guilty to an Illinois criminal offense.

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