SB2954 94TH GENERAL ASSEMBLY

LRB094 19066 EFG 54568 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
SB2954

Introduced 1/20/2006, by Sen. John J. Cullerton

SYNOPSIS AS INTRODUCED:

720 ILCS 5/36-1	from Ch. 38, par. 36-1
730 ILCS 5/3-7-6	from Ch. 38, par. 1003-7-6
730 ILCS 5/3-12-2	from Ch. 38, par. 1003-12-2
730 ILCS 5/3-12-5	from Ch. 38, par. 1003-12-5

Amends the Criminal Code of 1961 and the Unified Code of Corrections. Re-enacts provisions of those Codes affected by Public Act 88-669, which has been held to be unconstitutional as a violation of the single subject clause of the Illinois Constitution. Includes validation provisions. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT in relation to criminal law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Findings; purpose; validation.

(a) The General Assembly finds and declares that:

(1) Public Act 88-669, effective November 29, 1994, contained provisions amending the Criminal Code of 1961 and the Unified Code of Corrections. Public Act 88-669 also contained other provisions.

(2) The Illinois Supreme Court declared Public Act 88-669 to be unconstitutional as a violation of the single subject clause of the Illinois Constitution in People v. Olender, Docket No. 98932, opinion filed December 15, 2005.

(b) The purpose of this Act is to re-enact the provisions of the Criminal Code of 1961 and the Unified Code of Corrections that were affected by Public Act 88-669 and to minimize or prevent any problems concerning those provisions that may arise from the unconstitutionality of Public Act 88-669. This re-enactment is intended to remove any question as to the validity and content of those provisions; it is not intended to supersede any other Public Act that amends the provisions re-enacted in this Act. The re-enacted material is shown in this Act as existing text (i.e., without underscoring) and may include changes made by subsequent amendments.

(c) The re-enactment of provisions of the Criminal Code of 1961 and the Unified Code of Corrections by this Act is not intended, and shall not be construed, to impair any legal argument concerning whether those provisions were substantially re-enacted by any other Public Act.

(d) All otherwise lawful actions taken before the effective date of this Act in reliance on or pursuant to the provisions re-enacted by this Act, as those provisions were set forth in Public Act 88-669 or as subsequently amended, by any officer, employee, or agency of State government or by any other person or entity, are hereby validated, except to the extent prohibited under the Illinois or United States Constitution.

(e) This Act applies, without limitation, to actions pending on or after the effective date of this Act, except to the extent prohibited under the Illinois or United States Constitution.

Section 5. The Criminal Code of 1961 is amended by re-enacting Section 36-1 as follows:

(720 ILCS 5/36-1) (from Ch. 38, par. 36-1)

Sec. 36-1. Seizure. Any vessel, vehicle or aircraft used with the knowledge and consent of the owner in the commission of, or in the attempt to commit as defined in Section 8-4 of this Code, an offense prohibited by (a) Section 9-1, 9-3, 10-2, 11-6, 11-15.1, 11-19.1, 11-19.2, 11-20.1, 12-4.1, 12-4.2, 12-4.2-5, 12-4.3, 12-4.6, 12-7.3, 12-7.4, 12-13, 12-14, 18-2, 19-1, 19-2, 19-3, 20-1, 20-2, 20.5-6, 24-1.2, 24-1.2-5, 24-1.5, or 28-1 of this Code, paragraph (a) of Section 12-4 of this Code, paragraph (a) of Section 12-15 or paragraphs (a), (c) or (d) of Section 12-16 of this Code, or paragraph (a)(6) or (a)(7) of Section 24-1 of this Code; (b) Section 21, 22, 23, 24 or 26 of the Cigarette Tax Act if the vessel, vehicle or aircraft contains more than 10 cartons of such cigarettes; (c) Section 28, 29 or 30 of the Cigarette Use Tax Act if the vessel, vehicle or aircraft contains more than 10 cartons of such cigarettes; (d) Section 44 of the Environmental Protection Act; (e) 11-204.1 of the Illinois Vehicle Code; (f) the offenses described in the following provisions of the Illinois Vehicle Code: Section 11-501 subdivisions (c-1)(1), (c-1)(2), (c-1)(3), (d)(1)(A), (d)(1)(D), (d)(1)(G), or (d)(1)(H); (g) an offense described in subsection (g) of Section 6-303 of the Illinois Vehicle Code; or (h) an offense described in subsection (e) of Section 6-101 of the Illinois Vehicle Code; may be seized and delivered forthwith to the sheriff of the county of seizure.

Within 15 days after such delivery the sheriff shall give notice of seizure to each person according to the following method: Upon each such person whose right, title or interest is of record in the office of the Secretary of State, the Secretary of Transportation, the Administrator of the Federal Aviation Agency, or any other Department of this State, or any other state of the United States if such vessel, vehicle or aircraft is required to be so registered, as the case may be, by mailing a copy of the notice by certified mail to the address as given upon the records of the Secretary of State, the Department of Aeronautics, Department of Public Works and Buildings or any other Department of this State or the United States if such vessel, vehicle or aircraft is required to be so registered. Within that 15 day period the sheriff shall also notify the State's Attorney of the county of seizure about the seizure.

In addition, any mobile or portable equipment used in the commission of an act which is in violation of Section 7g of the Metropolitan Water Reclamation District Act shall be subject to seizure and forfeiture under the same procedures provided in this Article for the seizure and forfeiture of vessels, vehicles and aircraft, and any such equipment shall be deemed a vessel, vehicle or aircraft for purposes of this Article.

When a person discharges a firearm at another individual from a vehicle with the knowledge and consent of the owner of the vehicle and with the intent to cause death or great bodily harm to that individual and as a result causes death or great bodily harm to that individual, the vehicle shall be subject to seizure and forfeiture under the same procedures provided in this Article for the seizure and forfeiture of vehicles used in violations of clauses (a), (b), (c), or (d) of this Section.

If the spouse of the owner of a vehicle seized for an offense described in subsection (g) of Section 6-303 of the Illinois Vehicle Code, a violation of subdivision (c-1)(1), (c-1)(2), (c-1)(3), (d)(1)(A), or (d)(1)(D) of Section 11-501 of the Illinois Vehicle Code, or Section 9-3 of this Code makes a showing that the seized vehicle is the only source of transportation and it is determined that the financial hardship to the family as a result of the seizure outweighs the benefit to the State from the seizure, the vehicle may be forfeited to the spouse or family member and the title to the vehicle shall be transferred to the spouse or family member who is properly licensed and who requires the use of the vehicle for employment or family transportation purposes. A written declaration of forfeiture of a vehicle under this Section shall be sufficient cause for the title to be transferred to the spouse or family member. The provisions of this paragraph shall apply only to one forfeiture per vehicle. If the vehicle is the subject of a subsequent forfeiture proceeding by virtue of a subsequent conviction of either spouse or the family member, the spouse or family member to whom the vehicle was forfeited under the first forfeiture proceeding may not utilize the provisions of this paragraph in another forfeiture proceeding. If the owner of the vehicle seized owns more than one vehicle, the procedure set out in this paragraph may be used for only one vehicle.

Property declared contraband under Section 40 of the Illinois Streetgang Terrorism Omnibus Prevention Act may be seized and forfeited under this Article.

(Source: P.A. 93-187, eff. 7-11-03; 94-329, eff. 1-1-06.)

Section 10. The Unified Code of Corrections is amended by re-enacting Sections 3-7-6, 3-12-2, and 3-12-5 as follows:

(730 ILCS 5/3-7-6) (from Ch. 38, par. 1003-7-6)

Sec. 3-7-6. Reimbursement for expenses.

(a) Responsibility of committed persons. For the purposes of this Section, "committed persons" mean those persons who through judicial determination have been placed in the custody of the Department on the basis of a conviction as an adult. Committed persons shall be responsible to reimburse the Department for the expenses incurred by their incarceration at a rate to be determined by the Department in accordance with this Section.

(1) Committed persons shall fully cooperate with the Department by providing complete financial information for the purposes under this Section.

(2) The failure of a committed person to fully cooperate as provided for in clauses (3) and (4) of subsection (a-5) shall be considered for purposes of a parole determination. Any committed person who willfully refuses to cooperate with the obligations set forth in this Section may be subject to the loss of good conduct credit towards his or her sentence of up to 180 days.

(a-5) Assets information form.

(1) The Department shall develop a form, which shall be used by the Department to obtain information from all committed persons regarding assets of the persons.

(2) In order to enable the Department to determine the financial status of the committed person, the form shall provide for obtaining the age and marital status of a committed person, the number and ages of children of the person, the number and ages of other dependents, the type and value of real estate, the type and value of personal property, cash and bank accounts, the location of any lock boxes, the type and value of investments, pensions and annuities and any other personalty of significant cash value, including but not limited to jewelry, art work and collectables, and all medical or dental insurance policies covering the committed person. The form may also provide for other information deemed pertinent by the Department in the investigation of a committed person's assets.

(3) Upon being developed, the form shall be submitted to each committed person as of the date the form is developed and to every committed person who thereafter is sentenced to imprisonment under the jurisdiction of the Department. The form may be resubmitted to a committed person by the Department for purpose of obtaining current information regarding the assets of the person.

(4) Every committed person shall complete the form or provide for completion of the form and the committed person shall swear under oath or affirm that to the best of his or her knowledge the information provided is complete and accurate.

(b) Expenses. The rate at which sums to be charged for the expenses incurred by a committed person for his or her confinement shall be computed by the Department as the average per capita cost per day for all inmates of that institution or facility for that fiscal year. The average per capita cost per day shall be computed by the Department based on the average per capita cost per day for the operation of that institution or facility for the fiscal year immediately preceding the period of incarceration for which the rate is being calculated. The Department shall establish rules and regulations providing for the computation of the above costs, and shall determine the average per capita cost per day for each of its institutions or facilities for each fiscal year. The Department shall have the power to modify its rules and regulations, so as to provide for the most accurate and most current average per capita cost per day computation. Where the committed person is placed in a facility outside the Department, the Department may pay the actual cost of services in that facility, and may collect reimbursement for the entire amount paid from the committed person receiving those services.

(c) Records. The records of the Department, including, but not limited to, those relating to: the average per capita cost per day for a particular institution or facility for a particular year, and the calculation of the average per capita cost per day; the average daily population of a particular Department correctional institution or facility for a particular year; the specific placement of a particular committed person in various Department correctional institutions or facilities for various periods of time; and the record of transactions of a particular committed person's trust account under Section 3-4-3 of this Act; may be proved in any legal proceeding, by a reproduced copy thereof or by a computer printout of Department records, under the certificate of the Director. If reproduced copies are used, the Director must certify that those are true and exact copies of the records on file with the Department. If computer printouts of records of the Department are offered as proof, the Director must certify that those computer printouts are true and exact representations of records properly entered into standard electronic computing equipment, in the regular course of the Department's business, at or reasonably near the time of the occurrence of the facts recorded, from trustworthy and reliable information. The reproduced copy or computer printout shall, without further proof, be admitted into evidence in any legal proceeding, and shall be prima facie correct and prima facie evidence of the accuracy of the information contained therein.

(d) Authority. The Director, or the Director's designee, may, when he or she knows or reasonably believes that a committed person, or the estate of that person, has assets which may be used to satisfy all or part of a judgment rendered under this Act, or when he or she knows or reasonably believes that a committed person is engaged in gang-related activity and has a substantial sum of money or other assets, provide for the forwarding to the Attorney General of a report on the committed person and that report shall contain a completed form under subsection (a-5) together with all other information available concerning the assets of the committed person and an estimate of the total expenses for that committed person, and authorize the Attorney General to institute proceedings to require the persons, or the estates of the persons, to reimburse the Department for the expenses incurred by their incarceration. The Attorney General, upon authorization of the Director, or the Director's designee, shall institute actions on behalf of the Department and pursue claims on the Department's behalf in probate and bankruptcy proceedings, to recover from committed persons the expenses incurred by their confinement. For purposes of this subsection (d), "gang-related" activity has the meaning ascribed to it in Section 10 of the Illinois Streetgang Terrorism Omnibus Prevention Act.

(e) Scope and limitations.

(1) No action under this Section shall be initiated more than 2 years after the release or death of the committed person in question.

(2) The death of a convicted person, by execution or otherwise, while committed to a Department correctional institution or facility shall not act as a bar to any action or proceeding under this Section.

(3) The assets of a committed person, for the purposes of this Section, shall include any property, tangible or intangible, real or personal, belonging to or due to a committed or formerly committed person including income or payments to the person from social security, worker's compensation, veteran's compensation, pension benefits, or from any other source whatsoever and any and all assets and property of whatever character held in the name of the person, held for the benefit of the person, or payable or otherwise deliverable to the person. Any trust, or portion of a trust, of which a convicted person is a beneficiary, shall be construed as an asset of the person, to the extent that benefits thereunder are required to be paid to the person, or shall in fact be paid to the person. At the time of a legal proceeding by the Attorney General under this Section, if it appears that the committed person has any assets which ought to be subjected to the claim of the Department under this Section, the court may issue an order requiring any person, corporation, or other legal entity possessed or having custody of those assets to appropriate any of the assets or a portion thereof toward reimbursing the Department as provided for under this Section. No provision of this Section shall be construed in violation of any State or federal limitation on the collection of money judgments.

(4) Nothing in this Section shall preclude the Department from applying federal benefits that are specifically provided for the care and treatment of a committed person toward the cost of care provided by a State facility or private agency.

(Source: P.A. 92-564, eff. 1-1-03.)

(730 ILCS 5/3-12-2) (from Ch. 38, par. 1003-12-2)

Sec. 3-12-2. Types of employment.

(a) The Department may establish, maintain, train and employ committed persons in industries for the production of articles, materials or supplies for resale to authorized purchasers. It may also employ committed persons on public works, buildings and property, the conservation of natural resources of the State, anti-pollution or environmental control projects, or for other public purposes, for the maintenance of the Department's buildings and properties and for the production of food or other necessities for its programs. The Department may establish, maintain and employ committed persons in the production of vehicle registration plates. A committed person's labor shall not be sold, contracted or hired out by the Department except under this Article and under Section 3-9-2.

(b) Works of art, literature, handicraft or other items produced by committed persons as an avocation and not as a product of a work program of the Department may be sold to the public under rules and regulations established by the Department. The cost of selling such products may be deducted from the proceeds, and the balance shall be credited to the person's account under Section 3-4-3. The Department shall notify the Attorney General of the existence of any proceeds which it believes should be applied towards a satisfaction, in whole or in part, of the person's incarceration costs.

(Source: P.A. 88-669, eff. 11-29-94; 88-679, eff. 7-1-95.)

(730 ILCS 5/3-12-5) (from Ch. 38, par. 1003-12-5)

Sec. 3-12-5. Compensation. Persons performing a work assignment under subsection (a) of Section 3-12-2 may receive wages under rules and regulations of the Department. In determining rates of compensation, the Department shall consider the effort, skill and economic value of the work performed. Compensation may be given to persons who participate in other programs of the Department. Of the compensation earned pursuant to this Section, a portion, as determined by the Department, shall be used to offset the cost of the committed person's incarceration. If the committed person files a lawsuit determined frivolous under Article XXII of the Code of Civil Procedure, 50% of the compensation shall be used to offset the filing fees and costs of the lawsuit as provided in that Article until all fees and costs are paid in full. All other wages shall be deposited in the individual's account under rules and regulations of the Department. The Department shall notify the Attorney General of any compensation applied towards a satisfaction, in whole or in part, of the person's incarceration costs.

(Source: P.A. 90-505, eff. 8-19-97.)

Section 99. Effective date. This Act takes effect upon becoming law.