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90_HB0665
New Act
725 ILCS 5/106-2.5 from Ch. 38, par. 106-2.5
725 ILCS 5/108B-3 from Ch. 38, par. 108B-3
30 ILCS 105/5.449 new
Creates the Streetgang Racketeer Influenced and Corrupt
Organizations Act. Creates the offense of streetgang
racketeering. Penalty is a Class 1 felony. Provides for the
forfeiture of property from streetgang racketeering. Permits
the court to levy a fine equal to the street value of any
contraband seized. Provides for distribution of the proceeds
of forfeited property to various governmental units. Amends
the Code of Criminal Procedure of 1963 to permit the granting
of use immunity in a criminal proceeding to a street gang
member who testifies against the gang. Permits the court to
enter an order for the interception of a private oral
communication to provide evidence of gang-related activity.
Amends the State Finance Act to create the Streetgang Profit
Forfeiture Fund in the State treasury.
LRB9003549RCks
LRB9003549RCks
1 AN ACT in relation to organized gang activities, and to
2 amend named Acts.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 1. Short title. This Act may be cited as the
6 Streetgang Racketeer Influenced and Corrupt Organizations
7 Act.
8 Section 5. Definitions. As used in this Act:
9 "Course or pattern of gang-related activity" means 2 or
10 more gang-related criminal offenses committed in whole or in
11 part within this State when:
12 (1) at least one of the offenses was committed on
13 or after the effective date of this Act;
14 (2) both offenses were committed within 5 years of
15 each other; and
16 (3) at least one offense involved the solicitation
17 to commit, conspiracy to commit, attempt to commit, or
18 commission of any offense defined as a felony or forcible
19 felony under the Criminal Code of 1961.
20 "Streetgang" has the meaning ascribed to it in Section 10
21 of the Illinois Streetgang Terrorism Omnibus Prevention Act.
22 "Streetgang member" has the meaning ascribed to it in
23 Section 10 of the Illinois Streetgang Terrorism Omnibus
24 Prevention Act.
25 "Gang-related" has the meaning ascribed to it in Section
26 10 of the Illinois Streetgang Terrorism Omnibus Prevention
27 Act.
28 Section 10. Streetgang racketeering. A person commits
29 streetgang racketeering when he or she:
30 (a) receives income knowing that income to be derived,
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1 directly or indirectly, from a course or pattern of
2 gang-related activity in which he or she participated, or for
3 which he or she is accountable under Section 5-2 of the
4 Criminal Code of 1961;
5 (b) receives income, knowing that income to be derived,
6 directly or indirectly, from a course or pattern of
7 gang-related activity in which he or she participated, or for
8 which he or she is accountable under Section 5-2 of the
9 Criminal Code of 1961, and he or she uses or invests,
10 directly or indirectly, any part of that income, or the
11 proceeds of that income, in acquisition of any interest in,
12 or the establishment or operation of, any enterprise doing
13 business in the State of Illinois;
14 (c) knowingly, through a course or pattern of
15 gang-related activity in which he or she participated, or for
16 which he or she is accountable under Section 5-2 of the
17 Criminal Code of 1961, acquires or maintains, directly or
18 indirectly, any interest in or contract of any enterprise
19 that is engaged in, or the activities of which affect,
20 business in the State of Illinois; or
21 (d) being a person employed by or associated with an
22 enterprise doing business in the State of Illinois, he or she
23 knowingly conducts or participates, directly or indirectly,
24 in the conduct of the enterprise's affairs through a pattern
25 of gang-related activity in which he or she participated, or
26 for which he or she is accountable under Section 5-2 of the
27 Criminal Code of 1961.
28 Section 15. Fines and penalties; forfeiture.
29 (a) A person who commits the offense of streetgang
30 racketeering is:
31 (1) guilty of a Class 1 felony; and
32 (2) subject to a fine of up to $250,000.
33 (b) A person who commits the offense of streetgang
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1 racketeering shall forfeit to the State of Illinois: (A) any
2 profits or proceeds and any property or property interest he
3 or she has acquired or maintained in violation of this Act or
4 has used to facilitate a violation of this Act that the court
5 determines, after a forfeiture hearing under Section 20, to
6 have been acquired or maintained as a result of streetgang
7 racketeering, or used to facilitate streetgang racketeering;
8 and (B) any interest in, security of, claim against, or
9 property or contractual right of any kind affording a source
10 of influence over any enterprise that he or she has
11 established, operated, controlled, conducted, or participated
12 in the conduct of in violation of this Act, that the court
13 determines, after a forfeiture hearing under Section 20, to
14 have been acquired or maintained as a result of streetgang
15 racketeering or used to facilitate streetgang racketeering.
16 Section 20. Hearings.
17 (a) The court shall, upon petition by the Attorney
18 General or State's Attorney, at any time after the filing of
19 an information or return of an indictment, conduct a hearing
20 to determine whether any property or property interest is
21 subject to forfeiture under this Act. At the forfeiture
22 hearing, the People shall have the burden of establishing, by
23 a preponderance of the evidence, that property or property
24 interests are subject to forfeiture under this Act. There is
25 a rebuttable presumption at that hearing that any property or
26 property interest of a person charged by information or
27 indictment with streetgang racketeering is subject to
28 forfeiture under this Section if the State establishes by a
29 preponderance of the evidence that:
30 (1) the property or property interest was acquired
31 by the person during the period of the violation of this
32 Act or within a reasonable time after that period; and
33 (2) there was no likely source for the property or
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1 property interest other than the violation of this Act.
2 (b) In an action brought by the People of the State of
3 Illinois under this Act, if any restraining order,
4 injunction, or prohibition or any other action in connection
5 with property or a property interest subject to forfeiture
6 under this Act is sought, the circuit court that will preside
7 over the trial of the person or persons charged with
8 streetgang racketeering as defined in Section 10 of this Act
9 shall first determine whether there is probable cause to
10 believe that the person or persons so charged have committed
11 the offense of streetgang racketeering as defined in Section
12 10 of this Act and whether the property or property interest
13 is subject to forfeiture under this Act.
14 (c) In order to make that determination, before entering
15 any such order, the court shall conduct a hearing without a
16 jury, in which the People shall establish that there is: (i)
17 probable cause that the person or persons so charged have
18 committed the offense of streetgang racketeering and (ii)
19 probable cause that any property or property interest may be
20 subject to forfeiture under this Act. The hearing may be
21 conducted simultaneously with a preliminary hearing, if the
22 prosecution is commenced by information or complaint, or by
23 motion of the People at any stage in the proceedings. The
24 court may accept a finding of probable cause at a preliminary
25 hearing following the filing of an information charging the
26 offense of streetgang racketeering as defined in Section 10
27 of this Act or the return of an indictment by a grand jury
28 charging the offense of streetgang racketeering as defined in
29 Section 10 of this Act as sufficient evidence of probable
30 cause as provided in item (i).
31 (d) Upon such a finding, the circuit court shall enter a
32 restraining order, injunction, or prohibition or shall take
33 any other action in connection with the property or property
34 interest subject to forfeiture under this Act that is
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1 necessary to insure that the property is not removed from the
2 jurisdiction of the court, concealed, destroyed, or otherwise
3 disposed of by the owner of that property or property
4 interest before a forfeiture hearing under this Section. The
5 Attorney General or State's Attorney shall file a certified
6 copy of the restraining order, injunction, or other
7 prohibition with the recorder or registrar of titles of each
8 county where the property of the defendant may be located.
9 No injunction, restraining order, or other prohibition shall
10 affect the rights of any bona fide purchaser, mortgagee,
11 judgment creditor, or other lien holder arising before the
12 date of the filing.
13 Section 25. Release of property to the defendant. The
14 court may, at any time, upon verified petition by the
15 defendant, conduct a hearing to release all or portions of
16 any property or interest the court previously determined to
17 be subject to forfeiture or subject to a restraining order,
18 injunction, prohibition, or other action. The court may
19 release the property to the defendant for good cause shown
20 and within the sound discretion of the court.
21 Section 30. Prosecution by Attorney General or State's
22 Attorney. Prosecution under this Act may be commenced by the
23 Attorney General or a State's Attorney.
24 Section 35. Seizure of property. Upon an order of
25 forfeiture being entered under Section 20, the court shall
26 authorize the Attorney General to seize any property or
27 property interest declared forfeited under this Act under the
28 terms and conditions the court deems proper. Property or
29 property interest that has been the subject of an entered
30 restraining order, injunction, or prohibition or any other
31 action filed under subsection (b) of Section 20 shall be
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1 forfeited unless the claimant can show by a preponderance of
2 the evidence that the property or property interest has not
3 been acquired or maintained as a result of streetgang
4 racketeering or has not been used to facilitate streetgang
5 racketeering.
6 Section 40. Sale of forfeited property.
7 (a) The Attorney General or his or her designee is
8 authorized to sell all property forfeited and seized under
9 this Act, unless the property is required by law to be
10 destroyed or is harmful to the public, and, after the
11 deduction of all requisite expenses of administration and
12 sale, shall distribute the proceeds of the sale, along with
13 any moneys forfeited or seized, in accordance with subsection
14 (b) or (c), whichever is applicable.
15 (b) All moneys and the sale proceeds of all other
16 property forfeited and seized under this Act shall be
17 distributed as follows:
18 (1) 50% shall be distributed to the unit of local
19 government whose officers or employees conducted the
20 investigation into streetgang racketeering and caused the
21 arrest and prosecution leading to the forfeiture.
22 Amounts distributed to units of local government shall be
23 used for enforcement of laws governing gang-related
24 activity. If, however, the investigation, arrest, and
25 prosecution leading to the forfeiture were undertaken
26 solely by a State agency, the portion provided under this
27 paragraph (1) shall be paid into the Gang Violence
28 Victims and Witnesses Fund in the State treasury to be
29 used for enforcement of laws governing gang-related
30 activity.
31 (2) 12.5% shall be distributed to the county in
32 which the prosecution resulting in the forfeiture was
33 instituted, deposited into a special fund in the county
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1 treasury, and appropriated to the State's Attorney for
2 use in the enforcement of laws governing gang-related
3 activity.
4 (3) 12.5% shall be distributed to the Office of the
5 State's Attorneys Appellate Prosecutor and deposited into
6 the Streetgang Profit Forfeiture Fund, a special fund
7 created in the State treasury, to be used by the Office
8 of the State's Attorneys Appellate Prosecutor for
9 additional expenses incurred in prosecuting appeals
10 arising under this Act. Any amounts remaining in the
11 Fund after all additional expenses have been paid shall
12 be used by the Office to reduce the participating county
13 contributions to the Office on a pro-rated basis as
14 determined by the board of governors of the Office of
15 the State's Attorneys Appellate Prosecutor based on the
16 populations of the participating counties.
17 (4) 25% shall be paid into the Gang Violence
18 Victims and Witnesses Fund in the State treasury to be
19 used by the Department of State Police for funding the
20 Statewide Organized Gang Database created under the
21 Statewide Organized Gang Database Act. Any amounts
22 remaining in the Fund shall be used for enforcement, by
23 the State or any unit of local government, of laws
24 governing gang-related activity.
25 (c) When the investigation or indictment for the offense
26 of streetgang racketeering has occurred under the provisions
27 of the Statewide Grand Jury Act, all moneys and the sale
28 proceeds of all other property shall be distributed as
29 follows:
30 (1) 60% shall be distributed to the local,
31 municipal, county, or State law enforcement agencies that
32 conducted or participated in the investigation resulting
33 in the forfeiture. The distribution shall bear a
34 reasonable relationship to the degree of direct
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1 participation of the law enforcement agency in the effort
2 resulting in the forfeiture, taking into account the
3 total value of the property forfeited and the total law
4 enforcement effort with respect to the violation of the
5 law on which the forfeiture is based. Amounts
6 distributed to the agencies shall be used for the
7 enforcement of laws governing gang-related activities.
8 (2) 40% shall be distributed to the Attorney
9 General and the State's Attorney, if any, participating
10 in the prosecution resulting in the forfeiture. The
11 distribution shall bear a reasonable relationship to the
12 degree of direct participation in the prosecution of the
13 offense, taking into account the total value of the
14 property forfeited and the total amount of time spent in
15 preparing and presenting the case, the complexity of the
16 case, and other similar factors. Amounts distributed to
17 the Attorney General under this paragraph shall be
18 retained in the Statewide Grand Jury Prosecution Fund and
19 paid out upon the direction of the Attorney General for
20 expenses incurred in criminal prosecutions arising under
21 the Statewide Grand Jury Act. Amounts distributed to a
22 State's Attorney shall be deposited in a special fund in
23 the county treasury and appropriated to the State's
24 Attorney for use in the enforcement of laws governing
25 gang-related activity.
26 Section 45. Fines; determinative factors; extension of
27 time for payment.
28 (a) When a person pleads guilty to or is found guilty of
29 an offense under this Act, a fine may be levied in addition
30 to any other penalty imposed by the court.
31 (b) In determining whether to impose a fine under this
32 Section and the amount, time for payment, and method of
33 payment of any fine so imposed, the court shall:
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1 (1) consider the defendant's income, regardless of
2 source, the defendant's earning capacity, and the
3 defendant's financial resources, as well as the nature of
4 the burden the fine will impose on the defendant and any
5 person legally or financially dependent upon the
6 defendant;
7 (2) consider the proof received at trial, or as a
8 result of a plea of guilty, concerning the full street
9 value of contraband property seized and any profits or
10 other proceeds derived by the defendant from the
11 violation of this Act;
12 (3) take into account any other pertinent equitable
13 considerations; and
14 (4) give primary consideration to the need to
15 deprive the defendant of illegally obtained profits or
16 other proceeds from the offense.
17 For the purpose of paragraph (2) of this subsection,
18 "street value" shall be determined by the court on the basis
19 of testimony of law enforcement personnel and the defendant
20 as to the amount seized and the testimony that may be
21 required by the court as to the current street value of the
22 contraband seized.
23 Section 50. Condition of fine.
24 (a) As a condition of a fine, the court may require that
25 payment be made in specified installments or within a
26 specified period of time, but that period shall not be
27 greater than the maximum applicable term of probation or
28 imprisonment, whichever is greater. Unless otherwise
29 specified, payment of a fine shall be due immediately.
30 (b) If a fine for a violation of this Act is imposed on
31 an organization, it is the duty of each individual authorized
32 to make disbursements of the assets of the organization to
33 pay the fine from assets of the organization.
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1 (c) (1) A defendant who has been sentenced to pay a
2 fine, and who has paid part but not all of the fine, may
3 petition the court for an extension of the time for payment
4 or modification of the method of payment.
5 (2) The court may grant a petition made under this
6 subsection if it finds that:
7 (i) the circumstances that warranted payment by the
8 time or method specified no longer exist; or
9 (ii) it is otherwise unjust to require payment of
10 the fine by the time or method specified.
11 Section 55. Proceeds of fines for gang-related offenses.
12 (a) 12.5% of amounts collected as fines under this Act
13 shall be paid into the Streetgang Profit Forfeiture Fund.
14 (b) 87.5% of the proceeds of fines received under this
15 Act shall be transmitted to and deposited in the treasurer's
16 office at the level of government as follows:
17 (1) If the seizure was made by a combination of law
18 enforcement personnel representing differing units of
19 local government, the court levying the fine shall
20 equitably allocate 50% of the fine among these units of
21 local government and shall allocate 37.5% to the county
22 general corporate fund. If the seizure was made by law
23 enforcement personnel representing a unit of local
24 government from a municipality with a population of more
25 than 2,000,000, the court levying the fine shall allocate
26 87.5% of the fine to that unit of local government. If
27 the seizure was made by a combination of law enforcement
28 personnel representing differing units of local
29 government, and at least one of those units represents a
30 municipality with a population of more than 2,000,000,
31 the court shall equitably allocate 87.5% of the proceeds
32 of the fines received among the differing units of local
33 government.
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1 (2) If the seizure was made by State law
2 enforcement personnel, then the court shall allocate
3 37.5% to the State treasury and 50% to the county general
4 corporate fund.
5 (3) If a State law enforcement agency in
6 combination with law enforcement agencies of one or more
7 units of local government conducted the seizure, the
8 court shall equitably allocate 37.5% of the fines to or
9 among the law enforcement agencies of the units of local
10 government that conducted the seizure and shall allocate
11 50% to the county general corporate fund.
12 (c) The proceeds of fines allocated to law enforcement
13 agencies of units of local government under subsection (b)
14 shall be made available to that law enforcement agency as
15 expendable receipts for use in the enforcement of laws
16 regulating gang-related activities. The proceeds of fines
17 awarded to the State treasury shall be deposited into a
18 special fund known as the Gang Violence Victims and Witnesses
19 Fund. Moneys from this fund may be used by the Department of
20 State Police for use in the enforcement of laws regulating
21 gang-related activities; and all other moneys shall be paid
22 into the general revenue fund in the State treasury.
23 Section 60. Actions.
24 (a) The circuit courts of the State have jurisdiction to
25 prevent and restrain violations of this Act by issuing
26 appropriate orders, including, but not limited to: ordering a
27 person to divest himself or herself of any interest, direct
28 or indirect, in an enterprise; imposing reasonable
29 restrictions on the future activities or investment of a
30 person, including, but not limited to, prohibiting a person
31 from engaging in the same type of endeavor as the enterprise
32 engaged in, the activities of which affect business in the
33 State of Illinois; or ordering dissolution or reorganization
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1 of an enterprise, making due provisions for the rights of
2 innocent persons.
3 (b) The Attorney General or the State's Attorney may
4 institute proceedings under this Section. In an action
5 brought by the State of Illinois under this Section, the
6 court shall proceed within a reasonable time to the hearing
7 and determination of the issues. Pending that determination,
8 the court may at any time enter temporary restraining orders,
9 preliminary or permanent injunctions, or prohibitions or take
10 other actions including the acceptance of satisfactory
11 performance bonds by a defendant, as it deems proper.
12 (c) A person injured in his or her business, person, or
13 property by reason of a violation of this Act may sue the
14 violator in any appropriate circuit court and shall recover
15 threefold the damages he or she sustains and the cost of the
16 action, including a reasonable attorney's fee.
17 (d) A final judgment entered in favor of the People of
18 the State of Illinois in any criminal proceeding brought
19 under this Act shall estop the defendant in the criminal case
20 from denying the essential allegations of the criminal
21 offense in any subsequent civil proceeding brought under this
22 Act.
23 Section 65. Civil actions; venue. A civil action or
24 proceeding under this Act against a person may be instituted
25 in the circuit court for any county in which the person
26 resides, is found, has an agent, transacts his or her
27 affairs, or in which property that is the subject of these
28 proceedings is located.
29 Section 70. Libral construction. It is the intent of the
30 General Assembly that this Act be liberally construed so as
31 to effect the purposes of this Act and be construed in
32 accordance with similar provisions contained in Title IX of
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1 the Organized Crime Control Act of 1970, as amended (18
2 U.S.C. 1961 through 1968).
3 Section 105. The Code of Criminal Procedure of 1963 is
4 amended by changing Sections 106-2.5 and 108B-3 as follows:
5 (725 ILCS 5/106-2.5) (from Ch. 38, par. 106-2.5)
6 Sec. 106-2.5. Use immunity.
7 (a) In lieu of the immunity provided in Section 106-2 of
8 this Code, the State's Attorney may make application to the
9 court that a street gang member, who testifies on behalf of a
10 public authority in a civil proceeding brought against a
11 streetgang under the Illinois Streetgang Terrorism Omnibus
12 Prevention Act, or in a criminal proceeding before a Grand
13 Jury or trial in court, be granted immunity from prosecution
14 in a criminal case as to any information directly or
15 indirectly derived from the production of evidence by the
16 streetgang member. The court shall grant the order of
17 immunity if:
18 (1) the production of the evidence is necessary to
19 a fair determination of a cause of action under the
20 Illinois Streetgang Terrorism Omnibus Prevention Act or
21 in a criminal proceeding; and
22 (2) the streetgang member has refused or is likely
23 to refuse to produce the evidence on the basis of his or
24 her privilege against self-incrimination.
25 (b) In lieu of the immunity provided in Section 106-2 of
26 this Code, in any investigation before a Grand Jury, or trial
27 in any court, the court on motion of the State shall order
28 that a witness be granted immunity from prosecution in a
29 criminal case as to any information directly or indirectly
30 derived from the production of evidence from the witness
31 if the witness has refused or is likely to refuse to produce
32 the evidence on the basis of his or her privilege against
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1 self-incrimination.
2 (c) The production of evidence so compelled under the
3 order, and any information directly or indirectly derived
4 from it, may not be used against the witness in a criminal
5 case, except in a prosecution for perjury, false swearing, or
6 an offense otherwise involving a failure to comply with the
7 order. An order of immunity granted under this Section does
8 not bar prosecution of the witness, except as specifically
9 provided in this Section.
10 (d) Upon request of the witness so compelled, a copy of
11 the evidence produced under the order shall be furnished to
12 him or her.
13 (Source: P.A. 87-932; 88-241; 88-677, eff. 12-15-94.)
14 (725 ILCS 5/108B-3) (from Ch. 38, par. 108B-3)
15 Sec. 108B-3. Authorization for the interception of
16 private oral communication. The State's Attorney, or a person
17 designated in writing or by law to act for him and to perform
18 his duties during his absence or disability, may authorize,
19 in writing, an ex parte application to the chief judge of a
20 court of competent jurisdiction for an order authorizing the
21 interception of a private oral communication when no party
22 has consented to the interception and (i) the interception
23 may provide evidence of, or may assist in the apprehension of
24 a person who has committed, is committing or is about to
25 commit, a gang-related activity as defined in the Illinois
26 Streetgang Terrorism Omnibus Prevention Act, a violation of
27 Section 8-1.1 (solicitation of murder), 8-1.2 (solicitation
28 of murder for hire), 9-1 (first degree murder), or 29B-1
29 (money laundering) of the Criminal Code of 1961, Section 401,
30 401.1 (controlled substance trafficking), 405, 405.1
31 (criminal drug conspiracy) or 407 of the Illinois Controlled
32 Substances Act, a violation of Section 24-2.1, 24-2.2, 24-3,
33 24-3.1, 24-3.3, 24-3.4, 24-4, or 24-5 or subsection
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1 24-1(a)(4), 24-1(a)(6), 24-1(a)(7), 24-1(a)(9), 24-1(a)(10),
2 or 24-1(c) of the Criminal Code of 1961 or conspiracy to
3 commit money laundering or conspiracy to commit first degree
4 murder; (ii) in response to a clear and present danger of
5 imminent death or great bodily harm to persons resulting
6 from: (1) a kidnapping or the holding of a hostage by force
7 or the threat of the imminent use of force; or (2) the
8 occupation by force or the threat of the imminent use of
9 force of any premises, place, vehicle, vessel or aircraft;
10 (iii) to aid an investigation or prosecution of a civil
11 action brought under the Illinois Streetgang Terrorism
12 Omnibus Prevention Act when there is probable cause to
13 believe the interception of the private oral communication
14 will provide evidence that a streetgang is committing, has
15 committed, or will commit a second or subsequent gang-related
16 offense or that the interception of the private oral
17 communication will aid in the collection of a judgment
18 entered under that Act; or (iv) upon information and belief
19 that a streetgang has committed, is committing, or is about
20 to commit a felony.
21 As used in this Section, "streetgang" and "gang-related"
22 have the meanings ascribed to them in Section 10 of the
23 Illinois Streetgang Terrorism Omnibus Prevention Act.
24 (Source: P.A. 88-249; 88-677, eff. 12-15-94.)
25 Section 110. The State Finance Act is amended by adding
26 Section 5.449 as follows:
27 (30 ILCS 105/5.449 new)
28 Sec. 5.449. The Streetgang Profit Forfeiture Fund.