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Public Act 096-1019
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| SB2551 Enrolled | LRB096 17492 RLC 32848 b |
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AN ACT concerning criminal law.
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Be it enacted by the People of the State of Illinois, |
represented in the General Assembly:
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Section 1. Short title. This Act may be cited as the Public |
Corruption Profit Forfeiture Act.
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Section 5. Legislative declaration. Public corruption is a |
far-reaching, continuing and extremely profitable criminal |
enterprise, which diverts significant amounts of public money |
for illicit purposes. Public corruption-related schemes |
persist despite the threat of prosecution and the actual |
prosecution and imprisonment of individual participants |
because existing sanctions do not effectively reach the money |
and other assets generated by such schemes. It is therefore |
necessary to supplement existing sanctions by mandating |
forfeiture of money and other assets generated by public |
corruption-related activities. Forfeiture diminishes the |
financial incentives which encourage and sustain public |
corruption, restores public moneys which have been diverted by |
public corruption, and secures for the People of the State of |
Illinois assets to be used for enforcement of laws governing |
public corruption.
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Section 10. Penalties. |
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(a) A person who is convicted of a violation of any of the |
following Sections, subsections, and clauses of the Criminal |
Code of 1961: |
(1) clause (a)(6) of Section 12-6 (intimidation by a |
public official), |
(2) Section 33-1 (bribery), or |
(3) subsection (a) of Section 33E-7 (kickbacks), |
shall forfeit to the State of Illinois: |
(A) any profits or proceeds and any property or |
property interest he or she has acquired or maintained in |
violation of any of the offenses listed in clauses (1) |
through (3) of this subsection (a) that the court |
determines, after a forfeiture hearing under subsection |
(b) of this Section, to have been acquired or maintained as |
a result of violating any of the offenses listed in clauses |
(1) through (3) of this subsection (a); and |
(B) any interest in, security of, claim against, or |
property or contractual right of any kind affording a |
source of influence over, any enterprise which he or she |
has established, operated, controlled, conducted, or |
participated in the conduct of, in violation of any of the |
offenses listed in clauses (1) through (3) of this |
subsection (a) that the court determines, after a |
forfeiture hearing under subsection (b) of this Section, to |
have been acquired or maintained as a result of violating |
any of the offenses listed in clauses (1) through (3) of |
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this subsection (a) or used to facilitate a violation of |
one of the offenses listed in clauses (1) through (3) of |
this subsection (a).
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(b) The court shall, upon petition by the Attorney General |
or State's Attorney, at any time after the filing of an |
information or return of an indictment, conduct a hearing to |
determine whether any property or property interest is subject |
to forfeiture under this Act. At the forfeiture hearing the |
people shall have the burden of establishing, by a |
preponderance of the evidence, that property or property |
interests are subject to forfeiture under this Act. There is a |
rebuttable presumption at such hearing that any property or |
property interest of a person charged by information or |
indictment with a violation of any of the offenses listed in |
clauses (1) through (3) of subsection (a) of this Section or |
who is convicted of a violation of any of the offenses listed |
in clauses (1) through (3) of subsection (a) of this Section is |
subject to forfeiture under this Section if the State |
establishes by a preponderance of the evidence that: |
(1) such property or property interest was acquired by |
such person during the period of the violation of any of |
the offenses listed in clauses (1) through (3) of |
subsection (a) of this Section or within a reasonable time |
after such period; and
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(2) there was no likely source for such property or |
property interest other than the violation of any of the |
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offenses listed in clauses (1) through (3) of subsection |
(a) of this Section.
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(c) In an action brought by the People of the State of |
Illinois under this Act, wherein any restraining order, |
injunction or prohibition or any other action in connection |
with any property or property interest subject to forfeiture |
under this Act is sought, the circuit court which shall preside |
over the trial of the person or persons charged with any of the |
offenses listed in clauses (1) through (3) of subsection (a) of |
this Section shall first determine whether there is probable |
cause to believe that the person or persons so charged have |
committed a violation of any of the offenses listed in clauses |
(1) through (3) of subsection (a) of this Section and whether |
the property or property interest is subject to forfeiture |
pursuant to this Act.
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In order to make such a determination, prior to entering |
any such order, the court shall conduct a hearing without a |
jury, wherein the People shall establish that there is: (i) |
probable cause that the person or persons so charged have |
committed one of the offenses listed in clauses (1) through (3) |
of subsection (a) of this Section and (ii) probable cause that |
any property or property interest may be subject to forfeiture |
pursuant to this Act. Such hearing may be conducted |
simultaneously with a preliminary hearing, if the prosecution |
is commenced by information or complaint, or by motion of the |
People, at any stage in the proceedings. The court may accept a |
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finding of probable cause at a preliminary hearing following |
the filing of a charge for violating one of the offenses listed |
in clauses (1) through (3) of subsection (a) of this Section or |
the return of an indictment by a grand jury charging one of the |
offenses listed in clauses (1) through (3) of subsection (a) of |
this Section as sufficient evidence of probable cause as |
provided in item (i) above.
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Upon such a finding, the circuit court shall enter such |
restraining order, injunction or prohibition, or shall take |
such other action in connection with any such property or |
property interest subject to forfeiture under this Act, as is |
necessary to insure that such property is not removed from the |
jurisdiction of the court, concealed, destroyed or otherwise |
disposed of by the owner of that property or property interest |
prior to a forfeiture hearing under subsection (b) of this |
Section. The Attorney General or State's Attorney shall file a |
certified copy of such restraining order, injunction or other |
prohibition with the recorder of deeds or registrar of titles |
of each county where any such property of the defendant may be |
located. No such injunction, restraining order or other |
prohibition shall affect the rights of any bona fide purchaser, |
mortgagee, judgment creditor or other lien holder arising prior |
to the date of such filing.
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The court may, at any time, upon verified petition by the |
defendant, conduct a hearing to release all or portions of any |
such property or interest which the court previously determined |
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to be subject to forfeiture or subject to any restraining |
order, injunction, or prohibition or other action. The court |
may release such property to the defendant for good cause shown |
and within the sound discretion of the court.
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(d) Prosecution under this Act may be commenced by the |
Attorney General or a State's Attorney.
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(e) Upon an order of forfeiture being entered pursuant to |
subsection (b) of this Section, the court shall authorize the |
Attorney General to seize any property or property interest |
declared forfeited under this Act and under such terms and |
conditions as the court shall deem proper. Any property or |
property interest that has been the subject of an entered |
restraining order, injunction or prohibition or any other |
action filed under subsection (c) shall be forfeited unless the |
claimant can show by a preponderance of the evidence that the |
property or property interest has not been acquired or |
maintained as a result of a violation of any of the offenses |
listed in clauses (1) through (3) of subsection (a) of this |
Section or has not been used to facilitate a violation of any |
of the offenses listed in clauses (1) through (3) of subsection |
(a) of this Section.
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(f) The Attorney General or his or her designee is |
authorized to sell all property forfeited and seized pursuant |
to this Act, unless such property is required by law to be |
destroyed or is harmful to the public, and, after the deduction |
of all requisite expenses of administration and sale, shall |
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distribute the proceeds of such sale, along with any moneys |
forfeited or seized, in accordance with subsection (g).
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(g) All monies and the sale proceeds of all other property |
forfeited and seized pursuant to this Act shall be distributed |
as follows:
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(1) An amount equal to 50% shall be distributed to the |
unit of local government or other law enforcement agency |
whose officers or employees conducted the investigation |
into a violation of any of the offenses listed in clauses |
(1) through (3) of subsection (a) of this Section and |
caused the arrest or arrests and prosecution leading to the |
forfeiture. Amounts distributed to units of local |
government and law enforcement agencies shall be used for |
enforcement of laws governing public corruption, or for |
other law enforcement purposes. In the event, however, that |
the investigation, arrest or arrests and prosecution |
leading to the forfeiture were undertaken solely by a State |
agency, the portion provided hereunder shall be paid into |
the State Asset Forfeiture Fund in the State treasury to be |
used by that State agency in accordance with law.
If the |
investigation, arrest or arrests and prosecution leading |
to the forfeiture were undertaken by the Attorney General, |
the portion provided hereunder shall be paid into the |
Attorney General's Whistleblower Reward and Protection |
Fund in the State treasury to be used by the Attorney |
General in accordance with law. |
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(2) An amount equal to 12.5% shall be distributed to |
the county in which the prosecution resulting in the |
forfeiture was instituted, deposited in a special fund in |
the county treasury and appropriated to the State's |
Attorney for use in accordance with law.
If the prosecution |
was conducted by the Attorney General, then the amount |
provided under this subsection shall be paid into the |
Attorney General's Whistleblower Reward and Protection |
Fund in the State treasury to be used by the Attorney |
General in accordance with law. |
(3) An amount equal to 12.5% shall be distributed to |
the Office of the State's Attorneys Appellate Prosecutor |
and deposited in the State's Attorneys Appellate |
Prosecutor Anti-Corruption Fund, to be used by the Office |
of the State's Attorneys Appellate Prosecutor for |
additional expenses incurred in prosecuting appeals |
arising under this Act. Any amounts remaining in the Fund |
after all additional expenses have been paid shall be used |
by the Office to reduce the participating county |
contributions to the Office on a prorated basis as |
determined by the board of governors of the Office of the |
State's Attorneys Appellate Prosecutor based on the |
populations of the participating counties.
If the appeal is |
to be conducted by the Attorney General, then the amount |
provided under this subsection shall be paid into the |
Attorney General's Whistleblower Reward and Protection |
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Fund in the State treasury to be used by the Attorney |
General in accordance with law. |
(4) An amount equal to 25% shall be paid into the State |
Asset Forfeiture Fund in the State treasury to be used by |
the Department of State Police for the funding of the |
investigation of public corruption activities. Any amounts |
remaining in the Fund after full funding of such |
investigations shall be used by the Department in |
accordance with law to fund its other enforcement |
activities.
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(h) All moneys deposited pursuant to this Act in the State |
Asset Forfeiture Fund shall, subject to appropriation, be used |
by the Department of State Police in the manner set forth in |
this Section. All moneys deposited pursuant to this Act in the |
Attorney General's Whistleblower Reward and Protection Fund |
shall, subject to appropriation, be used by the Attorney |
General for State law enforcement purposes and for the |
performance of the duties of that office. All moneys deposited |
pursuant to this Act in the State's Attorneys Appellate |
Prosecutor Anti-Corruption Fund shall, subject to |
appropriation, be used by the Office of the State's Attorneys |
Appellate Prosecutor in the manner set forth in this Section.
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Section 15. Forfeiture of political contribution. Whenever |
any person pleads guilty to, or is found guilty of, any offense |
under subsection (a) of Section 10 of this Act, or is convicted |
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of a violation of any of the following Sections of Title 18 of |
the United States Code: (i) Section 872 (extortion); (ii) |
Section 880 (receiving the proceeds of extortion); (iii) |
Section 201 (bribery); or (iv) Section 874 (kickbacks), in |
addition to any other penalty imposed by the court, all |
contributions (as defined by Section 9-1.4 of the Election |
Code) or other receipts held at the time of forfeiture by a |
political committee (as defined by Section 9-1.8 of the |
Election Code), which is controlled by that person, shall be |
paid to the State within 30 days from the date of the entry of |
the guilty plea or conviction. Payments received by the State |
pursuant to this Section shall be deposited into the General |
Revenue Fund.
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Section 20. Fines. |
(a) Whenever any person pleads guilty to or is found guilty |
of an offense under this Act, a fine may be levied in addition |
to any other penalty imposed by the court.
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(b) In determining whether to impose a fine under this |
Section and the amount, time for payment, and method of payment |
of any fine so imposed, the court shall:
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(1) consider the defendant's income, regardless of |
source, the defendant's earning capacity, and the |
defendant's financial resources, as well as the nature of |
the burden the fine will impose on the defendant and any |
person legally or financially dependent upon the |
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defendant;
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(2) consider the proof received at trial, or as a |
result of a plea of guilty, concerning any profits or other |
proceeds derived by the defendant from the violation of |
this Act;
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(3) take into account any other pertinent equitable |
considerations; and
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(4) give primary consideration to the need to deprive |
the defendant of illegally obtained profits or other |
proceeds from the offense.
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(c) As a condition of a fine, the court may require that |
payment be made in specified installments or within a specified |
period of time, but such period shall not be greater than the |
maximum applicable term of probation or imprisonment, |
whichever is greater. Unless otherwise specified, payment of a |
fine shall be due immediately.
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(d) If a fine for a violation of this Act is imposed on an |
organization, it is the duty of each individual authorized to |
make disbursements of the assets of the organization to pay the |
fine from assets of the organization.
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(e) (1) A defendant who has been sentenced to pay a fine, |
and who has paid part but not all of such fine, may petition |
the court for an extension of the time for payment or |
modification of the method of payment.
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(2) The court may grant a petition made pursuant to |
this subsection if it finds that:
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(i) the circumstances that warranted payment by |
the time or method specified no longer exist; or
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(ii) it is otherwise unjust to require payment of |
the fine by the time or method specified.
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Section 25. Distribution of proceeds of fines. |
(a) The proceeds of all fines received under the provisions |
of this Act shall be transmitted to and deposited in the |
treasurer's office at the level of government as follows:
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(1) If the seizure was made by a combination of law
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enforcement personnel representing differing units of |
local government, the court levying the fine shall |
equitably allocate 50% of the fine among these units of |
local government and shall allocate 50% to the county |
general corporate fund. In the event that the seizure was |
made by law enforcement personnel representing a unit of |
local government from a municipality where the number of |
inhabitants exceeds 2 million, the court levying the fine |
shall allocate 100% of the fine to that unit of local |
government. If the seizure was made by a combination of law |
enforcement personnel representing differing units of |
local government, and at least one of those units |
represents a municipality where the number of inhabitants |
exceeds 2 million, the court shall equitably allocate 100% |
of the proceeds of the fines received among the differing |
units of local government.
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(2) If such seizure was made by State law enforcement |
personnel, then the court shall allocate 50% to the State |
treasury and 50% to the county general corporate fund.
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(3) If a State law enforcement agency in combination |
with a law enforcement agency or agencies of a unit or |
units of local government conducted the seizure, the court |
shall equitably allocate 50% of the fines to or among the |
law enforcement agency or agencies of the unit or units of |
local government which conducted the seizure and shall |
allocate 50% to the county general corporate fund.
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(b) The proceeds of all fines allocated to the law |
enforcement agency or agencies of the unit or units of local |
government pursuant to subsection (a) shall be made available |
to that law enforcement agency as expendable receipts for use |
in the enforcement of laws regulating public corruption and |
other laws. The proceeds of fines awarded to the State treasury |
shall be deposited in the State Asset Forfeiture Fund. Monies |
from this Fund may be used by the Department of State Police in |
the enforcement of laws regulating public corruption and other |
laws; and all other monies shall be paid into the General |
Revenue Fund in the State treasury.
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Section 30. Preventing and restraining violations. |
(a) The circuit courts of the State shall have jurisdiction |
to prevent and restrain violations of this Act by issuing |
appropriate orders, including, but not limited to: ordering any |
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person to divest himself of any interest, direct or indirect, |
in any enterprise; imposing reasonable restrictions on the |
future activities or investment of any person, including, but |
not limited to, prohibiting any person from engaging in the |
same type of endeavor as the enterprise engaged in, the |
activities of which affect business in the State of Illinois; |
or ordering dissolution or reorganization of any enterprise, |
making due provision for the rights of innocent persons.
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(b) The Attorney General or the State's Attorney may |
institute proceedings under this Section. In any action brought |
by the State of Illinois under this Section, the court shall |
proceed as soon as practicable to the hearing and determination |
thereof. Pending that determination, the court may at any time |
enter such temporary restraining orders, preliminary or |
permanent injunctions, or prohibitions, or take such other |
actions including the acceptance of satisfactory performance |
bonds by a defendant, as it shall deem proper.
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(c) Any person directly injured in his business, person or |
property by reason of a violation of this Act may sue the |
violator therefor in any appropriate circuit court and shall |
recover threefold the damages he or she sustains and the cost |
of the action, including a reasonable attorney's fee.
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(d) A final judgment entered in favor of the People of the |
State of Illinois in any criminal proceeding brought under this |
Act shall estop the defendant in the criminal case from denying |
the essential allegations of the criminal offense in any |
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subsequent civil proceeding brought under this Act.
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Section 35. Venue. Any civil action or proceeding under |
this Act against any person may be instituted in the circuit |
court for any county in which such person resides, is found, |
has an agent, transacts his or her affairs, or in which |
property that is the subject of these proceedings is located.
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Section 40. Intent. It is the intent of the General |
Assembly that this Act be liberally construed so as to effect |
the purposes of this Act and be construed in accordance with |
similar provisions contained in the Narcotics Profit |
Forfeiture Act.
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Section 45. Severability. If any provision of this Act or |
the application thereof to any person or circumstance is |
invalid, such invalidation shall not affect other provisions or |
applications of the Act which can be given effect without the |
invalid provision or application, and to this end the |
provisions of this Act are declared to be severable.
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Section 50. The Election Code is amended by changing |
Section 9-8.10 as follows:
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(10 ILCS 5/9-8.10)
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Sec. 9-8.10. Use of political committee and other reporting |
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organization
funds.
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(a) A political committee, or
organization subject to |
Section 9-7.5, shall
not
make
expenditures:
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(1) In violation of any law of the United States or of |
this State.
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(2) Clearly in excess of the fair market value of the |
services,
materials, facilities,
or other things of value |
received in exchange.
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(3) For satisfaction or repayment of any debts other |
than loans made to
the
committee or to the public official |
or candidate on behalf of the committee or
repayment of |
goods
and services purchased by the committee under a |
credit
agreement. Nothing in this Section authorizes the |
use of campaign funds to
repay personal loans. The |
repayments shall be made by check written to the
person who |
made the loan or credit agreement. The terms and conditions |
of any
loan or credit agreement to a
committee shall be set |
forth in a written agreement, including but not limited
to |
the
method and
amount of repayment, that shall be executed |
by the chairman or treasurer of the
committee at the time |
of the loan or credit agreement. The loan or agreement
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shall also
set forth the rate of interest for the loan, if |
any, which may not
substantially exceed the
prevailing |
market interest rate at the time the agreement is executed.
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(4) For the satisfaction or repayment of any debts or |
for the payment of
any expenses relating to a personal |
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residence.
Campaign funds may not be used as collateral for |
home mortgages.
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(5) For clothing or personal laundry expenses, except |
clothing items
rented by
the public official or candidate
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for his or her own use exclusively for a specific |
campaign-related event,
provided that
committees may |
purchase costumes, novelty items, or other accessories |
worn
primarily to
advertise the candidacy.
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(6) For the travel expenses of
any person unless the |
travel is necessary for fulfillment of political,
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governmental, or public policy duties, activities, or |
purposes.
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(7) For membership or club dues charged by |
organizations, clubs, or
facilities that
are primarily |
engaged in providing health, exercise, or recreational |
services;
provided,
however, that funds received under |
this Article may be used to rent the clubs
or facilities
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for a specific campaign-related event.
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(8) In payment for anything of value or for |
reimbursement of any
expenditure for
which any person has |
been reimbursed by the State or any person.
For purposes of |
this item (8), a per diem allowance is not a reimbursement.
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(9) For the purchase of or installment payment for a |
motor vehicle unless
the political committee can |
demonstrate that purchase of a motor vehicle is
more |
cost-effective than leasing a motor vehicle as permitted |
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under this item
(9). A political committee may lease or |
purchase and insure, maintain, and
repair a motor vehicle |
if the vehicle will be used primarily for campaign
purposes |
or
for the performance of governmental duties. A committee
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shall not make expenditures for use of the vehicle for |
non-campaign or
non-governmental purposes. Persons using |
vehicles not purchased or leased by a
political committee |
may be reimbursed for actual mileage for the use of the
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vehicle for campaign purposes or for the performance of |
governmental duties.
The mileage reimbursements shall be |
made at a rate not to exceed the standard
mileage rate |
method for computation of business expenses under the |
Internal
Revenue Code.
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(10) Directly for an individual's tuition or other |
educational expenses,
except for governmental or political |
purposes directly related to a candidate's
or public |
official's duties and responsibilities.
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(11) For payments to a public official or candidate or |
his or her
family member unless
for compensation for |
services actually rendered by that person.
The provisions |
of this item (11) do not apply to expenditures by a
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political committee in an aggregate
amount not exceeding |
the amount of funds reported to and certified by the State
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Board or county clerk as available as of June 30, 1998, in |
the semi-annual
report of
contributions and expenditures |
filed by the
political committee for the period concluding |
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June 30, 1998.
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(b) The Board shall have the authority to investigate, upon
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receipt of a verified complaint, violations of the provisions |
of this Section.
The Board may levy a fine
on any person who |
knowingly makes expenditures in violation of this Section and
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on any person who knowingly makes a malicious and false |
accusation of a
violation of this Section.
The Board may act |
under this subsection only upon the affirmative vote of at
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least 5 of its members. The fine shall not
exceed $500 for each |
expenditure of $500 or less and shall not exceed the
amount of |
the
expenditure plus $500 for each expenditure greater than |
$500. The Board shall
also
have the authority
to render rulings |
and issue opinions relating to compliance with this
Section.
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(c) Nothing in this Section prohibits the expenditure of |
funds of (i) a
political
committee controlled by an |
officeholder or by a candidate or (ii) an
organization subject
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to Section 9-7.5 to defray the customary and reasonable |
expenses of an
officeholder in
connection with the performance |
of governmental and public service functions.
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(d) Nothing in this Section prohibits the funds of a |
political committee which is controlled by a person convicted |
of a violation of any of the offenses listed in subsection (a) |
of Section 10 of the Public Corruption Profit Forfeiture Act |
from being forfeited to the State under Section 15 of the |
Public Corruption Profit Forfeiture Act. |
(Source: P.A. 93-615, eff. 11-19-03; 93-685, eff. 7-8-04.)
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