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90_SB1756ham001
LRB9011691RCksam
1 AMENDMENT TO SENATE BILL 1756
2 AMENDMENT NO. . Amend Senate Bill 1756 on page 1 by
3 replacing lines 1 and 2 with the following:
4 "AN ACT in relation to criminal law, amending named
5 Acts."; and
6 on page 1, by replacing lines 5 and 6 with the following:
7 "Section 5. Section 3-6021 of the Counties Code is
8 amended as follows:
9 (55 ILCS 5/3-6021) (from Ch. 34, par. 3-6021)
10 Sec. 3-6021. Conservator of the peace. Each sheriff
11 shall be conservator of the peace in his or her county, and
12 shall prevent crime and maintain the safety and order of the
13 citizens of that county; and may arrest offenders on view,
14 and cause them to be brought before the proper court for
15 trial or examination. Conservator of the peace. Each sheriff
16 shall be conservator of the peace in his or her county, and
17 shall prevent crime and maintain the safety and order of the
18 citizens of that county; and may arrest offenders on view,
19 and cause them to be brought before the proper court for
20 trial or examination.
21 (Source: P.A. 89-404, eff. 8-20-95.)
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1 Section 10. Section 7-4-8 of the Illinois Municipal Code
2 is amended as follows:
3 (65 ILCS 5/7-4-8) (from Ch. 24, par. 7-4-8)
4 Sec. 7-4-8. The police of any municipality in such a
5 police district have full authority and power as peace
6 officers and may go into any part of the district to exercise
7 that authority and power. For these purposes the mayor of any
8 municipality in the district, and the chiefs of police
9 therein, shall use the police forces under their control
10 anywhere in the district. The police of any municipality
11 in such a police district have full authority and power as
12 peace officers and may go into any part of the district to
13 exercise that authority and power. For these purposes the
14 mayor of any municipality in the district, and the chiefs of
15 police therein, shall use the police forces under their
16 control anywhere in the district.
17 (Source: P.A. 89-404, eff. 8-20-95.)
18 Section 15. Sections 3-2, 6-2, and 18-5 of the Criminal
19 Code of 1961 are amended as follows:
20 (720 ILCS 5/3-2) (from Ch. 38, par. 3-2)
21 Sec. 3-2. Affirmative defense.
22 (a) "Affirmative defense" means that unless the State's
23 evidence raises the issue involving the alleged defense, the
24 defendant, to raise the issue, must present some evidence
25 thereon.
26 (b) If the issue involved in an affirmative defense,
27 other than insanity, is raised then the State must sustain
28 the burden of proving the defendant guilty beyond a
29 reasonable doubt as to that issue together with all the other
30 elements of the offense. If the affirmative defense of
31 insanity is raised, the defendant bears the burden of proving
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1 by clear and convincing evidence his insanity at the time of
2 the offense. Affirmative defense.
3 (a) "Affirmative defense" means that unless the State's
4 evidence raises the issue involving the alleged defense, the
5 defendant, to raise the issue, must present some evidence
6 thereon.
7 (b) If the issue involved in an affirmative defense,
8 other than insanity, is raised then the State must sustain
9 the burden of proving the defendant guilty beyond a
10 reasonable doubt as to that issue together with all the other
11 elements of the offense. If the affirmative defense of
12 insanity is raised, the defendant bears the burden of proving
13 by clear and convincing evidence his insanity at the time of
14 the offense.
15 (Source: P.A. 89-404, eff. 8-20-95.)
16 (720 ILCS 5/6-2) (from Ch. 38, par. 6-2)
17 Sec. 6-2. Insanity.
18 (a) A person is not criminally responsible for conduct
19 if at the time of such conduct, as a result of mental disease
20 or mental defect, he lacks substantial capacity to appreciate
21 the criminality of his conduct.
22 (b) The terms "mental disease or mental defect" do not
23 include an abnormality manifested only by repeated criminal
24 or otherwise antisocial conduct.
25 (c) A person who, at the time of the commission of a
26 criminal offense, was not insane but was suffering from a
27 mental illness, is not relieved of criminal responsibility
28 for his conduct and may be found guilty but mentally ill.
29 (d) For purposes of this Section, "mental illness" or
30 "mentally ill" means a substantial disorder of thought, mood,
31 or behavior which afflicted a person at the time of the
32 commission of the offense and which impaired that person's
33 judgment, but not to the extent that he is unable to
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1 appreciate the wrongfulness of his behavior.
2 (e) When the defense of insanity has been presented
3 during the trial, the burden of proof is on the defendant to
4 prove by clear and convincing evidence that the defendant is
5 not guilty by reason of insanity. However, the burden of
6 proof remains on the State to prove beyond a reasonable doubt
7 each of the elements of each of the offenses charged, and, in
8 a jury trial where the insanity defense has been presented,
9 the jury must be instructed that it may not consider whether
10 the defendant has met his burden of proving that he is not
11 guilty by reason of insanity until and unless it has first
12 determined that the State has proven the defendant guilty
13 beyond a reasonable doubt of the offense with which he is
14 charged.
15 Insanity.
16 (a) A person is not criminally responsible for conduct
17 if at the time of such conduct, as a result of mental disease
18 or mental defect, he lacks substantial capacity to appreciate
19 the criminality of his conduct.
20 (b) The terms "mental disease or mental defect" do not
21 include an abnormality manifested only by repeated criminal
22 or otherwise antisocial conduct.
23 (c) A person who, at the time of the commission of a
24 criminal offense, was not insane but was suffering from a
25 mental illness, is not relieved of criminal responsibility
26 for his conduct and may be found guilty but mentally ill.
27 (d) For purposes of this Section, "mental illness" or
28 "mentally ill" means a substantial disorder of thought, mood,
29 or behavior which afflicted a person at the time of the
30 commission of the offense and which impaired that person's
31 judgment, but not to the extent that he is unable to
32 appreciate the wrongfulness of his behavior.
33 (e) When the defense of insanity has been presented
34 during the trial, the burden of proof is on the defendant to
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1 prove by clear and convincing evidence that the defendant is
2 not guilty by reason of insanity. However, the burden of
3 proof remains on the State to prove beyond a reasonable doubt
4 each of the elements of each of the offenses charged, and, in
5 a jury trial where the insanity defense has been presented,
6 the jury must be instructed that it may not consider whether
7 the defendant has met his burden of proving that he is not
8 guilty by reason of insanity until and unless it has first
9 determined that the State has proven the defendant guilty
10 beyond a reasonable doubt of the offense with which he is
11 charged.
12 (Source: P.A. 89-404, eff. 8-20-95.)"; and
13 on page 1, by inserting below line 20 the following:
14 "Section 20. Section 12 of the Cannabis Control Act is
15 amended as follows:
16 (720 ILCS 550/12) (from Ch. 56 1/2, par. 712)
17 Sec. 12. (a) The following are subject to forfeiture:
18 (1) all substances containing cannabis which have
19 been produced, manufactured, delivered, or possessed in
20 violation of this Act;
21 (2) all raw materials, products and equipment of
22 any kind which are produced, delivered, or possessed in
23 connection with any substance containing cannabis in
24 violation of this Act;
25 (3) all conveyances, including aircraft, vehicles
26 or vessels, which are used, or intended for use, to
27 transport, or in any manner to facilitate the
28 transportation, sale, receipt, possession, or concealment
29 of property described in paragraph (1) or (2) that
30 constitutes a felony violation of the Act, but:
31 (i) no conveyance used by any person as a
32 common carrier in the transaction of business as a
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1 common carrier is subject to forfeiture under this
2 Section unless it appears that the owner or other
3 person in charge of the conveyance is a consenting
4 party or privy to a violation of this Act;
5 (ii) no conveyance is subject to forfeiture
6 under this Section by reason of any act or omission
7 which the owner proves to have been committed or
8 omitted without his knowledge or consent;
9 (iii) a forfeiture of a conveyance encumbered
10 by a bona fide security interest is subject to the
11 interest of the secured party if he neither had
12 knowledge of nor consented to the act or omission;
13 (4) all money, things of value, books, records, and
14 research products and materials including formulas,
15 microfilm, tapes, and data which are used, or intended
16 for use in a felony violation of this Act;
17 (5) everything of value furnished or intended to be
18 furnished by any person in exchange for a substance in
19 violation of this Act, all proceeds traceable to such an
20 exchange, and all moneys, negotiable instruments, and
21 securities used, or intended to be used, to commit or in
22 any manner to facilitate any felony violation of this
23 Act.
24 (b) Property subject to forfeiture under this Act may be
25 seized by the Director or any peace officer upon process or
26 seizure warrant issued by any court having jurisdiction over
27 the property. Seizure by the Director or any peace officer
28 without process may be made:
29 (1) if the property subject to seizure has been the
30 subject of a prior judgment in favor of the State in a
31 criminal proceeding or in an injunction or forfeiture
32 proceeding based upon this Act or the Drug Asset
33 Forfeiture Procedure Act;
34 (2) if there is probable cause to believe that the
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1 property is directly or indirectly dangerous to health or
2 safety;
3 (3) if there is probable cause to believe that the
4 property is subject to forfeiture under this Act and the
5 property is seized under circumstances in which a
6 warrantless seizure or arrest would be reasonable; or
7 (4) in accordance with the Code of Criminal
8 Procedure of 1963.
9 (c) In the event of seizure pursuant to subsection (b),
10 forfeiture proceedings shall be instituted in accordance with
11 the Drug Asset Forfeiture Procedure Act.
12 (d) Property taken or detained under this Section shall
13 not be subject to replevin, but is deemed to be in the
14 custody of the Director subject only to the order and
15 judgments of the circuit court having jurisdiction over the
16 forfeiture proceedings and the decisions of the State's
17 Attorney under the Drug Asset Forfeiture Procedure Act. When
18 property is seized under this Act, the seizing agency shall
19 promptly conduct an inventory of the seized property,
20 estimate the property's value, and shall forward a copy of
21 the inventory of seized property and the estimate of the
22 property's value to the Director. Upon receiving notice of
23 seizure, the Director may:
24 (1) place the property under seal;
25 (2) remove the property to a place designated by
26 him;
27 (3) keep the property in the possession of the
28 seizing agency;
29 (4) remove the property to a storage area for
30 safekeeping or, if the property is a negotiable
31 instrument or money and is not needed for evidentiary
32 purposes, deposit it in an interest bearing account;
33 (5) place the property under constructive seizure
34 by posting notice of pending forfeiture on it, by giving
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1 notice of pending forfeiture to its owners and interest
2 holders, or by filing notice of pending forfeiture in any
3 appropriate public record relating to the property; or
4 (6) provide for another agency or custodian,
5 including an owner, secured party, or lienholder, to take
6 custody of the property upon the terms and conditions set
7 by the Director.
8 (e) No disposition may be made of property under seal
9 until the time for taking an appeal has elapsed or until all
10 appeals have been concluded unless a court, upon application
11 therefor, orders the sale of perishable substances and the
12 deposit of the proceeds of the sale with the court.
13 (f) When property is forfeited under this Act the
14 Director shall sell all such property unless such property is
15 required by law to be destroyed or is harmful to the public,
16 and shall distribute the proceeds of the sale, together with
17 any moneys forfeited or seized, in accordance with subsection
18 (g). However, upon the application of the seizing agency or
19 prosecutor who was responsible for the investigation, arrest
20 or arrests and prosecution which lead to the forfeiture, the
21 Director may return any item of forfeited property to the
22 seizing agency or prosecutor for official use in the
23 enforcement of laws relating to cannabis or controlled
24 substances, if the agency or prosecutor can demonstrate that
25 the item requested would be useful to the agency or
26 prosecutor in their enforcement efforts. When any real
27 property returned to the seizing agency is sold by the agency
28 or its unit of government, the proceeds of the sale shall be
29 delivered to the Director and distributed in accordance with
30 subsection (g).
31 (g) All monies and the sale proceeds of all other
32 property forfeited and seized under this Act shall be
33 distributed as follows:
34 (1) 65% shall be distributed to the metropolitan
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1 enforcement group, local, municipal, county, or state law
2 enforcement agency or agencies which conducted or
3 participated in the investigation resulting in the
4 forfeiture. The distribution shall bear a reasonable
5 relationship to the degree of direct participation of the
6 law enforcement agency in the effort resulting in the
7 forfeiture, taking into account the total value of the
8 property forfeited and the total law enforcement effort
9 with respect to the violation of the law upon which the
10 forfeiture is based. Amounts distributed to the agency
11 or agencies shall be used for the enforcement of laws
12 governing cannabis and controlled substances, except that
13 amounts distributed to the Secretary of State shall be
14 deposited into the Secretary of State Evidence Fund to be
15 used as provided in Section 2-115 of the Illinois Vehicle
16 Code.
17 (2)(i) 12.5% shall be distributed to the Office of
18 the State's Attorney of the county in which the
19 prosecution resulting in the forfeiture was
20 instituted, deposited in a special fund in the
21 county treasury and appropriated to the State's
22 Attorney for use in the enforcement of laws
23 governing cannabis and controlled substances. In
24 counties over 3,000,000 population, 25% will be
25 distributed to the Office of the State's Attorney
26 for use in the enforcement of laws governing
27 cannabis and controlled substances. If the
28 prosecution is undertaken solely by the Attorney
29 General, the portion provided hereunder shall be
30 distributed to the Attorney General for use in the
31 enforcement of laws governing cannabis and
32 controlled substances.
33 (ii) 12.5% shall be distributed to the Office
34 of the State's Attorneys Appellate Prosecutor and
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1 deposited in the Narcotics Profit Forfeiture Fund of
2 that Office to be used for additional expenses
3 incurred in the investigation, prosecution and
4 appeal of cases arising under laws governing
5 cannabis and controlled substances. The Office of
6 the State's Attorneys Appellate Prosecutor shall not
7 receive distribution from cases brought in counties
8 with over 3,000,000 population.
9 (3) 10% shall be retained by the Department of
10 State Police for expenses related to the administration
11 and sale of seized and forfeited property.
12 (a) The following are subject to forfeiture:
13 (1) all substances containing cannabis which have
14 been produced, manufactured, delivered, or possessed in
15 violation of this Act;
16 (2) all raw materials, products and equipment of
17 any kind which are produced, delivered, or possessed in
18 connection with any substance containing cannabis in
19 violation of this Act;
20 (3) all conveyances, including aircraft, vehicles
21 or vessels, which are used, or intended for use, to
22 transport, or in any manner to facilitate the
23 transportation, sale, receipt, possession, or concealment
24 of property described in paragraph (1) or (2) that
25 constitutes a felony violation of the Act, but:
26 (i) no conveyance used by any person as a
27 common carrier in the transaction of business as a
28 common carrier is subject to forfeiture under this
29 Section unless it appears that the owner or other
30 person in charge of the conveyance is a consenting
31 party or privy to a violation of this Act;
32 (ii) no conveyance is subject to forfeiture
33 under this Section by reason of any act or omission
34 which the owner proves to have been committed or
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1 omitted without his knowledge or consent;
2 (iii) a forfeiture of a conveyance encumbered
3 by a bona fide security interest is subject to the
4 interest of the secured party if he neither had
5 knowledge of nor consented to the act or omission;
6 (4) all money, things of value, books, records, and
7 research products and materials including formulas,
8 microfilm, tapes, and data which are used, or intended
9 for use in a felony violation of this Act;
10 (5) everything of value furnished or intended to be
11 furnished by any person in exchange for a substance in
12 violation of this Act, all proceeds traceable to such an
13 exchange, and all moneys, negotiable instruments, and
14 securities used, or intended to be used, to commit or in
15 any manner to facilitate any felony violation of this
16 Act.
17 (b) Property subject to forfeiture under this Act may be
18 seized by the Director or any peace officer upon process or
19 seizure warrant issued by any court having jurisdiction over
20 the property. Seizure by the Director or any peace officer
21 without process may be made:
22 (1) if the property subject to seizure has been the
23 subject of a prior judgment in favor of the State in a
24 criminal proceeding or in an injunction or forfeiture
25 proceeding based upon this Act or the Drug Asset
26 Forfeiture Procedure Act;
27 (2) if there is probable cause to believe that the
28 property is directly or indirectly dangerous to health or
29 safety;
30 (3) if there is probable cause to believe that the
31 property is subject to forfeiture under this Act and the
32 property is seized under circumstances in which a
33 warrantless seizure or arrest would be reasonable; or
34 (4) in accordance with the Code of Criminal
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1 Procedure of 1963.
2 (c) In the event of seizure pursuant to subsection (b),
3 forfeiture proceedings shall be instituted in accordance with
4 the Drug Asset Forfeiture Procedure Act.
5 (d) Property taken or detained under this Section shall
6 not be subject to replevin, but is deemed to be in the
7 custody of the Director subject only to the order and
8 judgments of the circuit court having jurisdiction over the
9 forfeiture proceedings and the decisions of the State's
10 Attorney under the Drug Asset Forfeiture Procedure Act. When
11 property is seized under this Act, the seizing agency shall
12 promptly conduct an inventory of the seized property,
13 estimate the property's value, and shall forward a copy of
14 the inventory of seized property and the estimate of the
15 property's value to the Director. Upon receiving notice of
16 seizure, the Director may:
17 (1) place the property under seal;
18 (2) remove the property to a place designated by
19 him;
20 (3) keep the property in the possession of the
21 seizing agency;
22 (4) remove the property to a storage area for
23 safekeeping or, if the property is a negotiable
24 instrument or money and is not needed for evidentiary
25 purposes, deposit it in an interest bearing account;
26 (5) place the property under constructive seizure
27 by posting notice of pending forfeiture on it, by giving
28 notice of pending forfeiture to its owners and interest
29 holders, or by filing notice of pending forfeiture in any
30 appropriate public record relating to the property; or
31 (6) provide for another agency or custodian,
32 including an owner, secured party, or lienholder, to take
33 custody of the property upon the terms and conditions set
34 by the Director.
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1 (e) No disposition may be made of property under seal
2 until the time for taking an appeal has elapsed or until all
3 appeals have been concluded unless a court, upon application
4 therefor, orders the sale of perishable substances and the
5 deposit of the proceeds of the sale with the court.
6 (f) When property is forfeited under this Act the
7 Director shall sell all such property unless such property is
8 required by law to be destroyed or is harmful to the public,
9 and shall distribute the proceeds of the sale, together with
10 any moneys forfeited or seized, in accordance with subsection
11 (g). However, upon the application of the seizing agency or
12 prosecutor who was responsible for the investigation, arrest
13 or arrests and prosecution which lead to the forfeiture, the
14 Director may return any item of forfeited property to the
15 seizing agency or prosecutor for official use in the
16 enforcement of laws relating to cannabis or controlled
17 substances, if the agency or prosecutor can demonstrate that
18 the item requested would be useful to the agency or
19 prosecutor in their enforcement efforts. When any real
20 property returned to the seizing agency is sold by the agency
21 or its unit of government, the proceeds of the sale shall be
22 delivered to the Director and distributed in accordance with
23 subsection (g).
24 (g) All monies and the sale proceeds of all other
25 property forfeited and seized under this Act shall be
26 distributed as follows:
27 (1) 65% shall be distributed to the metropolitan
28 enforcement group, local, municipal, county, or state law
29 enforcement agency or agencies which conducted or
30 participated in the investigation resulting in the
31 forfeiture. The distribution shall bear a reasonable
32 relationship to the degree of direct participation of the
33 law enforcement agency in the effort resulting in the
34 forfeiture, taking into account the total value of the
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1 property forfeited and the total law enforcement effort
2 with respect to the violation of the law upon which the
3 forfeiture is based. Amounts distributed to the agency
4 or agencies shall be used for the enforcement of laws
5 governing cannabis and controlled substances, except that
6 amounts distributed to the Secretary of State shall be
7 deposited into the Secretary of State Evidence Fund to be
8 used as provided in Section 2-115 of the Illinois Vehicle
9 Code.
10 (2)(i) 12.5% shall be distributed to the Office of
11 the State's Attorney of the county in which the
12 prosecution resulting in the forfeiture was
13 instituted, deposited in a special fund in the
14 county treasury and appropriated to the State's
15 Attorney for use in the enforcement of laws
16 governing cannabis and controlled substances. In
17 counties over 3,000,000 population, 25% will be
18 distributed to the Office of the State's Attorney
19 for use in the enforcement of laws governing
20 cannabis and controlled substances. If the
21 prosecution is undertaken solely by the Attorney
22 General, the portion provided hereunder shall be
23 distributed to the Attorney General for use in the
24 enforcement of laws governing cannabis and
25 controlled substances.
26 (ii) 12.5% shall be distributed to the Office
27 of the State's Attorneys Appellate Prosecutor and
28 deposited in the Narcotics Profit Forfeiture Fund of
29 that Office to be used for additional expenses
30 incurred in the investigation, prosecution and
31 appeal of cases arising under laws governing
32 cannabis and controlled substances. The Office of
33 the State's Attorneys Appellate Prosecutor shall not
34 receive distribution from cases brought in counties
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1 with over 3,000,000 population.
2 (3) 10% shall be retained by the Department of
3 State Police for expenses related to the administration
4 and sale of seized and forfeited property.
5 (Source: P.A. 89-404, eff. 8-20-95.)
6 Section 25. Sections 100, 401, 402, 405.1, and 505 of
7 the Illinois Controlled Substances Act are amended as
8 follows:
9 (720 ILCS 570/100) (from Ch. 56 1/2, par. 1100)
10 Sec. 100. Legislative intent. It is the intent of the
11 General Assembly, recognizing the rising incidence in the
12 abuse of drugs and other dangerous substances and its
13 resultant damage to the peace, health, and welfare of the
14 citizens of Illinois, to provide a system of control over the
15 distribution and use of controlled substances which will more
16 effectively: (1) limit access of such substances only to
17 those persons who have demonstrated an appropriate sense of
18 responsibility and have a lawful and legitimate reason to
19 possess them; (2) deter the unlawful and destructive abuse of
20 controlled substances; (3) penalize most heavily the illicit
21 traffickers or profiteers of controlled substances, who
22 propagate and perpetuate the abuse of such substances with
23 reckless disregard for its consumptive consequences upon
24 every element of society; (4) acknowledge the functional and
25 consequential differences between the various types of
26 controlled substances and provide for correspondingly
27 different degrees of control over each of the various types;
28 (5) unify where feasible and codify the efforts of this State
29 to conform with the regulatory systems of the Federal
30 government and other states to establish national
31 coordination of efforts to control the abuse of controlled
32 substances; and (6) provide law enforcement authorities with
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1 the necessary resources to make this system efficacious.
2 It is not the intent of the General Assembly to treat the
3 unlawful user or occasional petty distributor of controlled
4 substances with the same severity as the large-scale,
5 unlawful purveyors and traffickers of controlled substances.
6 However, it is recognized that persons who violate this Act
7 with respect to the manufacture, delivery, possession with
8 intent to deliver, or possession of more than one type of
9 controlled substance listed herein may accordingly receive
10 multiple convictions and sentences under each Section of this
11 Act. To this end, guidelines have been provided, along with a
12 wide latitude in sentencing discretion, to enable the
13 sentencing court to order penalties in each case which are
14 appropriate for the purposes of this Act.
15 Legislative intent. It is the intent of the General
16 Assembly, recognizing the rising incidence in the abuse of
17 drugs and other dangerous substances and its resultant damage
18 to the peace, health, and welfare of the citizens of
19 Illinois, to provide a system of control over the
20 distribution and use of controlled substances which will more
21 effectively: (1) limit access of such substances only to
22 those persons who have demonstrated an appropriate sense of
23 responsibility and have a lawful and legitimate reason to
24 possess them; (2) deter the unlawful and destructive abuse of
25 controlled substances; (3) penalize most heavily the illicit
26 traffickers or profiteers of controlled substances, who
27 propagate and perpetuate the abuse of such substances with
28 reckless disregard for its consumptive consequences upon
29 every element of society; (4) acknowledge the functional and
30 consequential differences between the various types of
31 controlled substances and provide for correspondingly
32 different degrees of control over each of the various types;
33 (5) unify where feasible and codify the efforts of this state
34 to conform with the regulatory systems of the Federal
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1 government and other states to establish national
2 coordination of efforts to control the abuse of controlled
3 substances; and (6) provide law enforcement authorities with
4 the necessary resources to make this system efficacious.
5 It is not the intent of the General Assembly to treat the
6 unlawful user or occasional petty distributor of controlled
7 substances with the same severity as the large-scale,
8 unlawful purveyors and traffickers of controlled substances.
9 However, it is recognized that persons who violate this Act
10 with respect to the manufacture, delivery, possession with
11 intent to deliver, or possession of more than one type of
12 controlled substance listed herein may accordingly receive
13 multiple convictions and sentences under each Section of this
14 Act. To this end, guidelines have been provided, along with a
15 wide latitude in sentencing discretion, to enable the
16 sentencing court to order penalties in each case which are
17 appropriate for the purposes of this Act.
18 (Source: P.A. 89-404, eff. 8-20-95.)
19 (720 ILCS 570/401) (from Ch. 56 1/2, par. 1401)
20 Sec. 401. Except as authorized by this Act, it is
21 unlawful for any person knowingly to manufacture or deliver,
22 or possess with intent to manufacture or deliver, a
23 controlled or counterfeit substance or controlled substance
24 analog. A violation of this Act with respect to each of the
25 controlled substances listed herein constitutes a single and
26 separate violation of this Act. For purposes of this
27 Section, "controlled substance analog" or "analog" means a
28 substance which is intended for human consumption, other than
29 a controlled substance, that has a chemical structure
30 substantially similar to that of a controlled substance in
31 Schedule I or II, or that was specifically designed to
32 produce an effect substantially similar to that of a
33 controlled substance in Schedule I or II. Examples of
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1 chemical classes in which controlled substance analogs are
2 found include, but are not limited to, the following:
3 phenethylamines, N-substituted piperidines, morphinans,
4 ecgonines, quinazolinones, substituted indoles, and
5 arylcycloalkylamines. For purposes of this Act, a controlled
6 substance analog shall be treated in the same manner as the
7 controlled substance to which it is substantially similar.
8 (a) Any person who violates this Section with respect to
9 the following amounts of controlled or counterfeit substances
10 or controlled substance analogs, notwithstanding any of the
11 provisions of subsections (c), (d), (e), (f), (g) or (h) to
12 the contrary, is guilty of a Class X felony and shall be
13 sentenced to a term of imprisonment as provided in this
14 subsection (a) and fined as provided in subsection (b):
15 (1) (A) not less than 6 years and not more than 30
16 years with respect to 15 grams or more but less than
17 100 grams of a substance containing heroin, or an
18 analog thereof;
19 (B) not less than 9 years and not more than 40
20 years with respect to 100 grams or more but less
21 than 400 grams of a substance containing heroin, or
22 an analog thereof;
23 (C) not less than 12 years and not more than
24 50 years with respect to 400 grams or more but less
25 than 900 grams of a substance containing heroin, or
26 an analog thereof;
27 (D) not less than 15 years and not more than
28 60 years with respect to 900 grams or more of any
29 substance containing heroin, or an analog thereof;
30 (2) (A) not less than 6 years and not more than 30
31 years with respect to 15 grams or more but less than
32 100 grams of a substance containing cocaine, or an
33 analog thereof;
34 (B) not less than 9 years and not more than 40
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1 years with respect to 100 grams or more but less
2 than 400 grams of a substance containing cocaine, or
3 an analog thereof;
4 (C) not less than 12 years and not more than
5 50 years with respect to 400 grams or more but less
6 than 900 grams of a substance containing cocaine, or
7 an analog thereof;
8 (D) not less than 15 years and not more than
9 60 years with respect to 900 grams or more of any
10 substance containing cocaine, or an analog thereof;
11 (3) (A) not less than 6 years and not more than 30
12 years with respect to 15 grams or more but less than
13 100 grams of a substance containing morphine, or an
14 analog thereof;
15 (B) not less than 9 years and not more than 40
16 years with respect to 100 grams or more but less
17 than 400 grams of a substance containing morphine,
18 or an analog thereof;
19 (C) not less than 12 years and not more than
20 50 years with respect to 400 grams or more but less
21 than 900 grams of a substance containing morphine,
22 or an analog thereof;
23 (D) not less than 15 years and not more than
24 60 years with respect to 900 grams or more of a
25 substance containing morphine, or an analog thereof;
26 (4) 200 grams or more of any substance containing
27 peyote, or an analog thereof;
28 (5) 200 grams or more of any substance containing a
29 derivative of barbituric acid or any of the salts of a
30 derivative of barbituric acid, or an analog thereof;
31 (6) 200 grams or more of any substance containing
32 amphetamine or methamphetamine or any salt of an optical
33 isomer of amphetamine or methamphetamine, or an analog
34 thereof;
-20- LRB9011691RCksam
1 (7) (A) not less than 6 years and not more than 30
2 years with respect to: (i) 15 grams or more but less
3 than 100 grams of a substance containing lysergic
4 acid diethylamide (LSD), or an analog thereof, or
5 (ii) 15 or more objects or 15 or more segregated
6 parts of an object or objects but less than 200
7 objects or 200 segregated parts of an object or
8 objects containing in them or having upon them any
9 amounts of any substance containing lysergic acid
10 diethylamide (LSD), or an analog thereof;
11 (B) not less than 9 years and not more than 40
12 years with respect to: (i) 100 grams or more but
13 less than 400 grams of a substance containing
14 lysergic acid diethylamide (LSD), or an analog
15 thereof, or (ii) 200 or more objects or 200 or more
16 segregated parts of an object or objects but less
17 than 600 objects or less than 600 segregated parts
18 of an object or objects containing in them or having
19 upon them any amount of any substance containing
20 lysergic acid diethylamide (LSD), or an analog
21 thereof;
22 (C) not less than 12 years and not more than
23 50 years with respect to: (i) 400 grams or more but
24 less than 900 grams of a substance containing
25 lysergic acid diethylamide (LSD), or an analog
26 thereof, or (ii) 600 or more objects or 600 or more
27 segregated parts of an object or objects but less
28 than 1500 objects or 1500 segregated parts of an
29 object or objects containing in them or having upon
30 them any amount of any substance containing lysergic
31 acid diethylamide (LSD), or an analog thereof;
32 (D) not less than 15 years and not more than
33 60 years with respect to: (i) 900 grams or more of
34 any substance containing lysergic acid diethylamide
-21- LRB9011691RCksam
1 (LSD), or an analog thereof, or (ii) 1500 or more
2 objects or 1500 or more segregated parts of an
3 object or objects containing in them or having upon
4 them any amount of a substance containing lysergic
5 acid diethylamide (LSD), or an analog thereof;
6 (8) 30 grams or more of any substance containing
7 pentazocine or any of the salts, isomers and salts of
8 isomers of pentazocine, or an analog thereof;
9 (9) 30 grams or more of any substance containing
10 methaqualone or any of the salts, isomers and salts of
11 isomers of methaqualone, or an analog thereof;
12 (10) 30 grams or more of any substance
13 containing phencyclidine or any of the salts, isomers
14 and salts of isomers of phencyclidine (PCP), or an
15 analog thereof;
16 (10.5) 30 grams or more of any substance containing
17 ketamine or any of the salts, isomers and salts of
18 isomers of ketamine, or an analog thereof;
19 (11) 200 grams or more of any substance containing
20 any other controlled substance classified in Schedules I
21 or II, or an analog thereof, which is not otherwise
22 included in this subsection.
23 (b) Any person sentenced with respect to violations of
24 paragraph (1), (2), (3) or (7) of subsection (a) involving
25 100 grams or more of the controlled substance named therein,
26 may in addition to the penalties provided therein, be fined
27 an amount not more than $500,000 or the full street value of
28 the controlled or counterfeit substance or controlled
29 substance analog, whichever is greater. The term "street
30 value" shall have the meaning ascribed in Section 110-5 of
31 the Code of Criminal Procedure of 1963. Any person sentenced
32 with respect to any other provision of subsection (a), may in
33 addition to the penalties provided therein, be fined an
34 amount not to exceed $500,000.
-22- LRB9011691RCksam
1 (c) Any person who violates this Section with regard to
2 the following amounts of controlled or counterfeit substances
3 or controlled substance analogs, notwithstanding any of the
4 provisions of subsections (a), (b), (d), (e), (f), (g) or (h)
5 to the contrary, is guilty of a Class 1 felony. The fine for
6 violation of this subsection (c) shall not be more than
7 $250,000:
8 (1) 10 or more grams but less than 15 grams of any
9 substance containing heroin, or an analog thereof;
10 (2) 1 gram or more but less than 15 grams of any
11 substance containing cocaine, or an analog thereof;
12 (3) 10 grams or more but less than 15 grams of any
13 substance containing morphine, or an analog thereof;
14 (4) 50 grams or more but less than 200 grams of any
15 substance containing peyote, or an analog thereof;
16 (5) 50 grams or more but less than 200 grams of any
17 substance containing a derivative of barbituric acid or
18 any of the salts of a derivative of barbituric acid, or
19 an analog thereof;
20 (6) 50 grams or more but less than 200 grams of any
21 substance containing amphetamine or methamphetamine or
22 any salt of an optical isomer of amphetamine or
23 methamphetamine, or an analog thereof;
24 (7) (i) 5 grams or more but less than 15 grams of
25 any substance containing lysergic acid diethylamide
26 (LSD), or an analog thereof, or (ii) more than 10 objects
27 or more than 10 segregated parts of an object or objects
28 but less than 15 objects or less than 15 segregated parts
29 of an object containing in them or having upon them any
30 amount of any substance containing lysergic acid
31 diethylamide (LSD), or an analog thereof;
32 (8) 10 grams or more but less than 30 grams of any
33 substance containing pentazocine or any of the salts,
34 isomers and salts of isomers of pentazocine, or an analog
-23- LRB9011691RCksam
1 thereof;
2 (9) 10 grams or more but less than 30 grams of any
3 substance containing methaqualone or any of the salts,
4 isomers and salts of isomers of methaqualone, or an
5 analog thereof;
6 (10) 10 grams or more but less than 30 grams of any
7 substance containing phencyclidine or any of the salts,
8 isomers and salts of isomers of phencyclidine (PCP), or
9 an analog thereof;
10 (10.5) 10 grams or more but less than 30 grams of
11 any substance containing ketamine or any of the salts,
12 isomers and salts of isomers of ketamine, or an analog
13 thereof;
14 (11) 50 grams or more but less than 200 grams of
15 any substance containing a substance classified in
16 Schedules I or II, or an analog thereof, which is not
17 otherwise included in this subsection.
18 (d) Any person who violates this Section with regard to
19 any other amount of a controlled or counterfeit substance
20 classified in Schedules I or II, or an analog thereof, which
21 is (i) a narcotic drug, or (ii) lysergic acid diethylamide
22 (LSD) or an analog thereof, is guilty of a Class 2 felony.
23 The fine for violation of this subsection (d) shall not be
24 more than $200,000.
25 (e) Any person who violates this Section with regard to
26 any other amount of a controlled or counterfeit substance
27 classified in Schedule I or II, or an analog thereof, which
28 substance is not included under subsection (d) of this
29 Section, is guilty of a Class 3 felony. The fine for
30 violation of this subsection (e) shall not be more than
31 $150,000.
32 (f) Any person who violates this Section with regard to
33 any other amount of a controlled or counterfeit substance
34 classified in Schedule III is guilty of a Class 3 felony. The
-24- LRB9011691RCksam
1 fine for violation of this subsection (f) shall not be more
2 than $125,000.
3 (g) Any person who violates this Section with regard to
4 any other amount of a controlled or counterfeit substance
5 classified in Schedule IV is guilty of a Class 3 felony. The
6 fine for violation of this subsection (g) shall not be more
7 than $100,000.
8 (h) Any person who violates this Section with regard to
9 any other amount of a controlled or counterfeit substance
10 classified in Schedule V is guilty of a Class 3 felony. The
11 fine for violation of this subsection (h) shall not be more
12 than $75,000.
13 (i) This Section does not apply to the manufacture,
14 possession or distribution of a substance in conformance with
15 the provisions of an approved new drug application or an
16 exemption for investigational use within the meaning of
17 Section 505 of the Federal Food, Drug and Cosmetic Act.
18 Except as authorized by this Act, it is unlawful for any
19 person knowingly to manufacture or deliver, or possess with
20 intent to manufacture or deliver, a controlled or counterfeit
21 substance or controlled substance analog. A violation of
22 this Act with respect to each of the controlled substances
23 listed herein constitutes a single and separate violation of
24 this Act. For purposes of this Section, "controlled
25 substance analog" or "analog" means a substance which is
26 intended for human consumption, other than a controlled
27 substance, that has a chemical structure substantially
28 similar to that of a controlled substance in Schedule I or
29 II, or that was specifically designed to produce an effect
30 substantially similar to that of a controlled substance in
31 Schedule I or II. Examples of chemical classes in which
32 controlled substance analogs are found include, but are not
33 limited to, the following: phenethylamines, N-substituted
34 piperidines, morphinans, ecgonines, quinazolinones,
-25- LRB9011691RCksam
1 substituted indoles, and arylcycloalkylamines. For purposes
2 of this Act, a controlled substance analog shall be treated
3 in the same manner as the controlled substance to which it is
4 substantially similar.
5 (a) Any person who violates this Section with respect to
6 the following amounts of controlled or counterfeit substances
7 or controlled substance analogs, notwithstanding any of the
8 provisions of subsections (c), (d), (e), (f), (g) or (h) to
9 the contrary, is guilty of a Class X felony and shall be
10 sentenced to a term of imprisonment as provided in this
11 subsection (a) and fined as provided in subsection (b):
12 (1) (A) not less than 6 years and not more than 30
13 years with respect to 15 grams or more but less than
14 100 grams of a substance containing heroin, or an
15 analog thereof;
16 (B) not less than 9 years and not more than 40
17 years with respect to 100 grams or more but less
18 than 400 grams of a substance containing heroin, or
19 an analog thereof;
20 (C) not less than 12 years and not more than
21 50 years with respect to 400 grams or more but less
22 than 900 grams of a substance containing heroin, or
23 an analog thereof;
24 (D) not less than 15 years and not more than
25 60 years with respect to 900 grams or more of any
26 substance containing heroin, or an analog thereof;
27 (2) (A) not less than 6 years and not more than 30
28 years with respect to 15 grams or more but less than
29 100 grams of a substance containing cocaine, or an
30 analog thereof;
31 (B) not less than 9 years and not more than 40
32 years with respect to 100 grams or more but less
33 than 400 grams of a substance containing cocaine, or
34 an analog thereof;
-26- LRB9011691RCksam
1 (C) not less than 12 years and not more than
2 50 years with respect to 400 grams or more but less
3 than 900 grams of a substance containing cocaine, or
4 an analog thereof;
5 (D) not less than 15 years and not more than
6 60 years with respect to 900 grams or more of any
7 substance containing cocaine, or an analog thereof;
8 (3) (A) not less than 6 years and not more than 30
9 years with respect to 15 grams or more but less than
10 100 grams of a substance containing morphine, or an
11 analog thereof;
12 (B) not less than 9 years and not more than 40
13 years with respect to 100 grams or more but less
14 than 400 grams of a substance containing morphine,
15 or an analog thereof;
16 (C) not less than 12 years and not more than
17 50 years with respect to 400 grams or more but less
18 than 900 grams of a substance containing morphine,
19 or an analog thereof;
20 (D) not less than 15 years and not more than
21 60 years with respect to 900 grams or more of a
22 substance containing morphine, or an analog thereof;
23 (4) 200 grams or more of any substance containing
24 peyote, or an analog thereof;
25 (5) 200 grams or more of any substance containing a
26 derivative of barbituric acid or any of the salts of a
27 derivative of barbituric acid, or an analog thereof;
28 (6) 200 grams or more of any substance containing
29 amphetamine or methamphetamine or any salt of an optical
30 isomer of amphetamine or methamphetamine, or an analog
31 thereof;
32 (7) (A) not less than 6 years and not more than 30
33 years with respect to: (i) 15 grams or more but less
34 than 100 grams of a substance containing lysergic
-27- LRB9011691RCksam
1 acid diethylamide (LSD), or an analog thereof, or
2 (ii) 15 or more objects or 15 or more segregated
3 parts of an object or objects but less than 200
4 objects or 200 segregated parts of an object or
5 objects containing in them or having upon them any
6 amounts of any substance containing lysergic acid
7 diethylamide (LSD), or an analog thereof;
8 (B) not less than 9 years and not more than 40
9 years with respect to: (i) 100 grams or more but
10 less than 400 grams of a substance containing
11 lysergic acid diethylamide (LSD), or an analog
12 thereof, or (ii) 200 or more objects or 200 or more
13 segregated parts of an object or objects but less
14 than 600 objects or less than 600 segregated parts
15 of an object or objects containing in them or having
16 upon them any amount of any substance containing
17 lysergic acid diethylamide (LSD), or an analog
18 thereof;
19 (C) not less than 12 years and not more than
20 50 years with respect to: (i) 400 grams or more but
21 less than 900 grams of a substance containing
22 lysergic acid diethylamide (LSD), or an analog
23 thereof, or (ii) 600 or more objects or 600 or more
24 segregated parts of an object or objects but less
25 than 1500 objects or 1500 segregated parts of an
26 object or objects containing in them or having upon
27 them any amount of any substance containing lysergic
28 acid diethylamide (LSD), or an analog thereof;
29 (D) not less than 15 years and not more than
30 60 years with respect to: (i) 900 grams or more of
31 any substance containing lysergic acid diethylamide
32 (LSD), or an analog thereof, or (ii) 1500 or more
33 objects or 1500 or more segregated parts of an
34 object or objects containing in them or having upon
-28- LRB9011691RCksam
1 them any amount of a substance containing lysergic
2 acid diethylamide (LSD), or an analog thereof;
3 (8) 30 grams or more of any substance containing
4 pentazocine or any of the salts, isomers and salts of
5 isomers of pentazocine, or an analog thereof;
6 (9) 30 grams or more of any substance containing
7 methaqualone or any of the salts, isomers and salts of
8 isomers of methaqualone, or an analog thereof;
9 (10) 30 grams or more of any substance
10 containing phencyclidine or any of the salts, isomers
11 and salts of isomers of phencyclidine (PCP), or an
12 analog thereof;
13 (10.5) 30 grams or more of any substance containing
14 ketamine or any of the salts, isomers and salts of
15 isomers of ketamine, or an analog thereof;
16 (11) 200 grams or more of any substance containing
17 any other controlled substance classified in Schedules I
18 or II, or an analog thereof, which is not otherwise
19 included in this subsection.
20 (b) Any person sentenced with respect to violations of
21 paragraph (1), (2), (3) or (7) of subsection (a) involving
22 100 grams or more of the controlled substance named therein,
23 may in addition to the penalties provided therein, be fined
24 an amount not more than $500,000 or the full street value of
25 the controlled or counterfeit substance or controlled
26 substance analog, whichever is greater. The term "street
27 value" shall have the meaning ascribed in Section 110-5 of
28 the Code of Criminal Procedure of 1963. Any person sentenced
29 with respect to any other provision of subsection (a), may in
30 addition to the penalties provided therein, be fined an
31 amount not to exceed $500,000.
32 (c) Any person who violates this Section with regard to
33 the following amounts of controlled or counterfeit substances
34 or controlled substance analogs, notwithstanding any of the
-29- LRB9011691RCksam
1 provisions of subsections (a), (b), (d), (e), (f), (g) or (h)
2 to the contrary, is guilty of a Class 1 felony. The fine for
3 violation of this subsection (c) shall not be more than
4 $250,000:
5 (1) 10 or more grams but less than 15 grams of any
6 substance containing heroin, or an analog thereof;
7 (2) 1 gram or more but less than 15 grams of any
8 substance containing cocaine, or an analog thereof;
9 (3) 10 grams or more but less than 15 grams of any
10 substance containing morphine, or an analog thereof;
11 (4) 50 grams or more but less than 200 grams of any
12 substance containing peyote, or an analog thereof;
13 (5) 50 grams or more but less than 200 grams of any
14 substance containing a derivative of barbituric acid or
15 any of the salts of a derivative of barbituric acid, or
16 an analog thereof;
17 (6) 50 grams or more but less than 200 grams of any
18 substance containing amphetamine or methamphetamine or
19 any salt of an optical isomer of amphetamine or
20 methamphetamine, or an analog thereof;
21 (7) (i) 5 grams or more but less than 15 grams of
22 any substance containing lysergic acid diethylamide
23 (LSD), or an analog thereof, or (ii) more than 10 objects
24 or more than 10 segregated parts of an object or objects
25 but less than 15 objects or less than 15 segregated parts
26 of an object containing in them or having upon them any
27 amount of any substance containing lysergic acid
28 diethylamide (LSD), or an analog thereof;
29 (8) 10 grams or more but less than 30 grams of any
30 substance containing pentazocine or any of the salts,
31 isomers and salts of isomers of pentazocine, or an analog
32 thereof;
33 (9) 10 grams or more but less than 30 grams of any
34 substance containing methaqualone or any of the salts,
-30- LRB9011691RCksam
1 isomers and salts of isomers of methaqualone, or an
2 analog thereof;
3 (10) 10 grams or more but less than 30 grams of any
4 substance containing phencyclidine or any of the salts,
5 isomers and salts of isomers of phencyclidine (PCP), or
6 an analog thereof;
7 (10.5) 10 grams or more but less than 30 grams of
8 any substance containing ketamine or any of the salts,
9 isomers and salts of isomers of ketamine, or an analog
10 thereof;
11 (11) 50 grams or more but less than 200 grams of
12 any substance containing a substance classified in
13 Schedules I or II, or an analog thereof, which is not
14 otherwise included in this subsection.
15 (d) Any person who violates this Section with regard to
16 any other amount of a controlled or counterfeit substance
17 classified in Schedules I or II, or an analog thereof, which
18 is (i) a narcotic drug, or (ii) lysergic acid diethylamide
19 (LSD) or an analog thereof, is guilty of a Class 2 felony.
20 The fine for violation of this subsection (d) shall not be
21 more than $200,000.
22 (e) Any person who violates this Section with regard to
23 any other amount of a controlled or counterfeit substance
24 classified in Schedule I or II, or an analog thereof, which
25 substance is not included under subsection (d) of this
26 Section, is guilty of a Class 3 felony. The fine for
27 violation of this subsection (e) shall not be more than
28 $150,000.
29 (f) Any person who violates this Section with regard to
30 any other amount of a controlled or counterfeit substance
31 classified in Schedule III is guilty of a Class 3 felony. The
32 fine for violation of this subsection (f) shall not be more
33 than $125,000.
34 (g) Any person who violates this Section with regard to
-31- LRB9011691RCksam
1 any other amount of a controlled or counterfeit substance
2 classified in Schedule IV is guilty of a Class 3 felony. The
3 fine for violation of this subsection (g) shall not be more
4 than $100,000.
5 (h) Any person who violates this Section with regard to
6 any other amount of a controlled or counterfeit substance
7 classified in Schedule V is guilty of a Class 3 felony. The
8 fine for violation of this subsection (h) shall not be more
9 than $75,000.
10 (i) This Section does not apply to the manufacture,
11 possession or distribution of a substance in conformance with
12 the provisions of an approved new drug application or an
13 exemption for investigational use within the meaning of
14 Section 505 of the Federal Food, Drug and Cosmetic Act.
15 (Source: P.A. 89-404, eff. 8-20-95; 90-382, eff. 8-15-97.)
16 (720 ILCS 570/402) (from Ch. 56 1/2, par. 1402)
17 Sec. 402. Except as otherwise authorized by this Act, it
18 is unlawful for any person knowingly to possess a controlled
19 or counterfeit substance. A violation of this Act with
20 respect to each of the controlled substances listed herein
21 constitutes a single and separate violation of this Act.
22 (a) Any person who violates this Section with respect to
23 the following controlled or counterfeit substances and
24 amounts, notwithstanding any of the provisions of subsection
25 (c) and (d) to the contrary, is guilty of a Class 1 felony
26 and shall, if sentenced to a term of imprisonment, be
27 sentenced as provided in this subsection (a) and fined as
28 provided in subsection (b):
29 (1) (A) not less than 4 years and not more than 15
30 years with respect to 15 grams or more but less than
31 100 grams of a substance containing heroin;
32 (B) not less than 6 years and not more than 30
33 years with respect to 100 grams or more but less
-32- LRB9011691RCksam
1 than 400 grams of a substance containing heroin;
2 (C) not less than 8 years and not more than 40
3 years with respect to 400 grams or more but less
4 than 900 grams of any substance containing heroin;
5 (D) not less than 10 years and not more than
6 50 years with respect to 900 grams or more of any
7 substance containing heroin;
8 (2) (A) not less than 4 years and not more than 15
9 years with respect to 15 grams or more but less than
10 100 grams of any substance containing cocaine;
11 (B) not less than 6 years and not more than 30
12 years with respect to 100 grams or more but less
13 than 400 grams of any substance containing cocaine;
14 (C) not less than 8 years and not more than 40
15 years with respect to 400 grams or more but less
16 than 900 grams of any substance containing cocaine;
17 (D) not less than 10 years and not more than
18 50 years with respect to 900 grams or more of any
19 substance containing cocaine;
20 (3) (A) not less than 4 years and not more than 15
21 years with respect to 15 grams or more but less than
22 100 grams of any substance containing morphine;
23 (B) not less than 6 years and not more than 30
24 years with respect to 100 grams or more but less
25 than 400 grams of any substance containing morphine;
26 (C) not less than 8 years and not more than 40
27 years with respect to 400 grams or more but less
28 than 900 grams of any substance containing morphine;
29 (D) not less than 10 years and not more than
30 50 years with respect to 900 grams or more of any
31 substance containing morphine;
32 (4) 200 grams or more of any substance containing
33 peyote;
-33- LRB9011691RCksam
1 (5) 200 grams or more of any substance containing a
2 derivative of barbituric acid or any of the salts of a
3 derivative of barbituric acid;
4 (6) 200 grams or more of any substance containing
5 amphetamine or methamphetamine or any salt of an optical
6 isomer of amphetamine or methamphetamine;
7 (7) (A) not less than 4 years and not more than 15
8 years with respect to: (i) 15 grams or more but less
9 than 100 grams of any substance containing lysergic
10 acid diethylamide (LSD), or an analog thereof, or
11 (ii) 15 or more objects or 15 or more segregated
12 parts of an object or objects but less than 200
13 objects or 200 segregated parts of an object or
14 objects containing in them or having upon them any
15 amount of any substance containing lysergic acid
16 diethylamide (LSD), or an analog thereof;
17 (B) not less than 6 years and not more than 30
18 years with respect to: (i) 100 grams or more but
19 less than 400 grams of any substance containing
20 lysergic acid diethylamide (LSD), or an analog
21 thereof, or (ii) 200 or more objects or 200 or more
22 segregated parts of an object or objects but less
23 than 600 objects or less than 600 segregated parts
24 of an object or objects containing in them or having
25 upon them any amount of any substance containing
26 lysergic acid diethylamide (LSD), or an analog
27 thereof;
28 (C) not less than 8 years and not more than 40
29 years with respect to: (i) 400 grams or more but
30 less than 900 grams of any substance containing
31 lysergic acid diethylamide (LSD), or an analog
32 thereof, or (ii) 600 or more objects or 600 or more
33 segregated parts of an object or objects but less
34 than 1500 objects or 1500 segregated parts of an
-34- LRB9011691RCksam
1 object or objects containing in them or having upon
2 them any amount of any substance containing lysergic
3 acid diethylamide (LSD), or an analog thereof;
4 (D) not less than 10 years and not more than
5 50 years with respect to: (i) 900 grams or more of
6 any substance containing lysergic acid diethylamide
7 (LSD), or an analog thereof, or (ii) 1500 or more
8 objects or 1500 or more segregated parts of an
9 object or objects containing in them or having upon
10 them any amount of a substance containing lysergic
11 acid diethylamide (LSD), or an analog thereof;
12 (8) 30 grams or more of any substance containing
13 pentazocine or any of the salts, isomers and salts of
14 isomers of pentazocine, or an analog thereof;
15 (9) 30 grams or more of any substance containing
16 methaqualone or any of the salts, isomers and salts of
17 isomers of methaqualone;
18 (10) 30 grams or more of any substance containing
19 phencyclidine or any of the salts, isomers and salts of
20 isomers of phencyclidine (PCP);
21 (10.5) 30 grams or more of any substance containing
22 ketamine or any of the salts, isomers and salts of
23 isomers of ketamine;
24 (11) 200 grams or more of any substance containing
25 any substance classified as a narcotic drug in Schedules
26 I or II which is not otherwise included in this
27 subsection.
28 (b) Any person sentenced with respect to violations of
29 paragraph (1), (2), (3) or (7) of subsection (a) involving
30 100 grams or more of the controlled substance named therein,
31 may in addition to the penalties provided therein, be fined
32 an amount not to exceed $200,000 or the full street value of
33 the controlled or counterfeit substances, whichever is
34 greater. The term "street value" shall have the meaning
-35- LRB9011691RCksam
1 ascribed in Section 110-5 of the Code of Criminal Procedure
2 of 1963. Any person sentenced with respect to any other
3 provision of subsection (a), may in addition to the penalties
4 provided therein, be fined an amount not to exceed $200,000.
5 (c) Any person who violates this Section with regard to
6 an amount of a controlled or counterfeit substance not set
7 forth in subsection (a) or (d) is guilty of a Class 4 felony.
8 The fine for a violation punishable under this subsection (c)
9 shall not be more than $25,000.
10 (d) Any person who violates this Section with regard to
11 any amount of anabolic steroid is guilty of a Class C
12 misdemeanor for the first offense and a Class B misdemeanor
13 for a subsequent offense committed within 2 years of a prior
14 conviction.
15 Except as otherwise authorized by this Act, it is
16 unlawful for any person knowingly to possess a controlled or
17 counterfeit substance. A violation of this Act with respect
18 to each of the controlled substances listed herein
19 constitutes a single and separate violation of this Act.
20 (a) Any person who violates this Section with respect to
21 the following controlled or counterfeit substances and
22 amounts, notwithstanding any of the provisions of subsection
23 (c) and (d) to the contrary, is guilty of a Class 1 felony
24 and shall, if sentenced to a term of imprisonment, be
25 sentenced as provided in this subsection (a) and fined as
26 provided in subsection (b):
27 (1) (A) not less than 4 years and not more than 15
28 years with respect to 15 grams or more but less than
29 100 grams of a substance containing heroin;
30 (B) not less than 6 years and not more than 30
31 years with respect to 100 grams or more but less
32 than 400 grams of a substance containing heroin;
33 (C) not less than 8 years and not more than 40
34 years with respect to 400 grams or more but less
-36- LRB9011691RCksam
1 than 900 grams of any substance containing heroin;
2 (D) not less than 10 years and not more than
3 50 years with respect to 900 grams or more of any
4 substance containing heroin;
5 (2) (A) not less than 4 years and not more than 15
6 years with respect to 15 grams or more but less than
7 100 grams of any substance containing cocaine;
8 (B) not less than 6 years and not more than 30
9 years with respect to 100 grams or more but less
10 than 400 grams of any substance containing cocaine;
11 (C) not less than 8 years and not more than 40
12 years with respect to 400 grams or more but less
13 than 900 grams of any substance containing cocaine;
14 (D) not less than 10 years and not more than
15 50 years with respect to 900 grams or more of any
16 substance containing cocaine;
17 (3) (A) not less than 4 years and not more than 15
18 years with respect to 15 grams or more but less than
19 100 grams of any substance containing morphine;
20 (B) not less than 6 years and not more than 30
21 years with respect to 100 grams or more but less
22 than 400 grams of any substance containing morphine;
23 (C) not less than 8 years and not more than 40
24 years with respect to 400 grams or more but less
25 than 900 grams of any substance containing morphine;
26 (D) not less than 10 years and not more than
27 50 years with respect to 900 grams or more of any
28 substance containing morphine;
29 (4) 200 grams or more of any substance containing
30 peyote;
31 (5) 200 grams or more of any substance containing a
32 derivative of barbituric acid or any of the salts of a
33 derivative of barbituric acid;
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1 (6) 200 grams or more of any substance containing
2 amphetamine or methamphetamine or any salt of an optical
3 isomer of amphetamine or methamphetamine;
4 (7) (A) not less than 4 years and not more than 15
5 years with respect to: (i) 15 grams or more but less
6 than 100 grams of any substance containing lysergic
7 acid diethylamide (LSD), or an analog thereof, or
8 (ii) 15 or more objects or 15 or more segregated
9 parts of an object or objects but less than 200
10 objects or 200 segregated parts of an object or
11 objects containing in them or having upon them any
12 amount of any substance containing lysergic acid
13 diethylamide (LSD), or an analog thereof;
14 (B) not less than 6 years and not more than 30
15 years with respect to: (i) 100 grams or more but
16 less than 400 grams of any substance containing
17 lysergic acid diethylamide (LSD), or an analog
18 thereof, or (ii) 200 or more objects or 200 or more
19 segregated parts of an object or objects but less
20 than 600 objects or less than 600 segregated parts
21 of an object or objects containing in them or having
22 upon them any amount of any substance containing
23 lysergic acid diethylamide (LSD), or an analog
24 thereof;
25 (C) not less than 8 years and not more than 40
26 years with respect to: (i) 400 grams or more but
27 less than 900 grams of any substance containing
28 lysergic acid diethylamide (LSD), or an analog
29 thereof, or (ii) 600 or more objects or 600 or more
30 segregated parts of an object or objects but less
31 than 1500 objects or 1500 segregated parts of an
32 object or objects containing in them or having upon
33 them any amount of any substance containing lysergic
34 acid diethylamide (LSD), or an analog thereof;
-38- LRB9011691RCksam
1 (D) not less than 10 years and not more than
2 50 years with respect to: (i) 900 grams or more of
3 any substance containing lysergic acid diethylamide
4 (LSD), or an analog thereof, or (ii) 1500 or more
5 objects or 1500 or more segregated parts of an
6 object or objects containing in them or having upon
7 them any amount of a substance containing lysergic
8 acid diethylamide (LSD), or an analog thereof;
9 (8) 30 grams or more of any substance containing
10 pentazocine or any of the salts, isomers and salts of
11 isomers of pentazocine, or an analog thereof;
12 (9) 30 grams or more of any substance containing
13 methaqualone or any of the salts, isomers and salts of
14 isomers of methaqualone;
15 (10) 30 grams or more of any substance containing
16 phencyclidine or any of the salts, isomers and salts of
17 isomers of phencyclidine (PCP);
18 (10.5) 30 grams or more of any substance containing
19 ketamine or any of the salts, isomers and salts of
20 isomers of ketamine;
21 (11) 200 grams or more of any substance containing
22 any substance classified as a narcotic drug in Schedules
23 I or II which is not otherwise included in this
24 subsection.
25 (b) Any person sentenced with respect to violations of
26 paragraph (1), (2), (3) or (7) of subsection (a) involving
27 100 grams or more of the controlled substance named therein,
28 may in addition to the penalties provided therein, be fined
29 an amount not to exceed $200,000 or the full street value of
30 the controlled or counterfeit substances, whichever is
31 greater. The term "street value" shall have the meaning
32 ascribed in Section 110-5 of the Code of Criminal Procedure
33 of 1963. Any person sentenced with respect to any other
34 provision of subsection (a), may in addition to the penalties
-39- LRB9011691RCksam
1 provided therein, be fined an amount not to exceed $200,000.
2 (c) Any person who violates this Section with regard to
3 an amount of a controlled or counterfeit substance not set
4 forth in subsection (a) or (d) is guilty of a Class 4 felony.
5 The fine for a violation punishable under this subsection (c)
6 shall not be more than $25,000.
7 (d) Any person who violates this Section with regard to
8 any amount of anabolic steroid is guilty of a Class C
9 misdemeanor for the first offense and a Class B misdemeanor
10 for a subsequent offense committed within 2 years of a prior
11 conviction.
12 (Source: P.A. 89-404, eff. 8-20-95; 90-382, eff. 8-15-97;
13 90-384, eff. 1-1-98; revised 11-13-97.)
14 (720 ILCS 570/405.1) (from Ch. 56 1/2, par. 1405.1)
15 Sec. 405.1. (a) Elements of the offense. A person
16 commits criminal drug conspiracy when, with the intent that
17 an offense set forth in Section 401, Section 402, or Section
18 407 of this Act be committed, he agrees with another to the
19 commission of that offense. No person may be convicted of
20 conspiracy to commit such an offense unless an act in
21 furtherance of such agreement is alleged and proved to have
22 been committed by him or by a co-conspirator.
23 (b) Co-conspirators. It shall not be a defense to
24 conspiracy that the person or persons with whom the accused
25 is alleged to have conspired:
26 (1) Has not been prosecuted or convicted, or
27 (2) Has been convicted of a different offense, or
28 (3) Is not amenable to justice, or
29 (4) Has been acquitted, or
30 (5) Lacked the capacity to commit an offense.
31 (c) Sentence. A person convicted of criminal drug
32 conspiracy may be fined or imprisoned or both, but any term
33 of imprisonment imposed shall be not less than the minimum
-40- LRB9011691RCksam
1 nor more than the maximum provided for the offense which is
2 the object of the conspiracy.
3 (a) Elements of the offense. A person commits criminal
4 drug conspiracy when, with the intent that an offense set
5 forth in Section 401, Section 402, or Section 407 of this Act
6 be committed, he agrees with another to the commission of
7 that offense. No person may be convicted of conspiracy to
8 commit such an offense unless an act in furtherance of such
9 agreement is alleged and proved to have been committed by him
10 or by a co-conspirator.
11 (b) Co-conspirators. It shall not be a defense to
12 conspiracy that the person or persons with whom the accused
13 is alleged to have conspired:
14 (1) Has not been prosecuted or convicted, or
15 (2) Has been convicted of a different offense, or
16 (3) Is not amenable to justice, or
17 (4) Has been acquitted, or
18 (5) Lacked the capacity to commit an offense.
19 (c) Sentence. A person convicted of criminal drug
20 conspiracy may be fined or imprisoned or both, but any term
21 of imprisonment imposed shall be not less than the minimum
22 nor more than the maximum provided for the offense which is
23 the object of the conspiracy.
24 (Source: P.A. 89-404, eff. 8-20-95.)
25 (720 ILCS 570/505) (from Ch. 56 1/2, par. 1505)
26 Sec. 505. (a) The following are subject to forfeiture:
27 (1) all substances which have been manufactured,
28 distributed, dispensed, or possessed in violation of this
29 Act;
30 (2) all raw materials, products and equipment of
31 any kind which are used, or intended for use in
32 manufacturing, distributing, dispensing, administering or
33 possessing any substance in violation of this Act;
-41- LRB9011691RCksam
1 (3) all conveyances, including aircraft, vehicles
2 or vessels, which are used, or intended for use, to
3 transport, or in any manner to facilitate the
4 transportation, sale, receipt, possession, or concealment
5 of property described in paragraphs (1) and (2), but:
6 (i) no conveyance used by any person as a
7 common carrier in the transaction of business as a
8 common carrier is subject to forfeiture under this
9 Section unless it appears that the owner or other
10 person in charge of the conveyance is a consenting
11 party or privy to a violation of this Act;
12 (ii) no conveyance is subject to forfeiture
13 under this Section by reason of any act or omission
14 which the owner proves to have been committed or
15 omitted without his knowledge or consent;
16 (iii) a forfeiture of a conveyance encumbered
17 by a bona fide security interest is subject to the
18 interest of the secured party if he neither had
19 knowledge of nor consented to the act or omission;
20 (4) all money, things of value, books, records, and
21 research products and materials including formulas,
22 microfilm, tapes, and data which are used, or intended to
23 be used in violation of this Act;
24 (5) everything of value furnished, or intended to
25 be furnished, in exchange for a substance in violation of
26 this Act, all proceeds traceable to such an exchange, and
27 all moneys, negotiable instruments, and securities used,
28 or intended to be used, to commit or in any manner to
29 facilitate any violation of this Act;
30 (6) all real property, including any right, title,
31 and interest (including, but not limited to, any
32 leasehold interest or the beneficial interest in a land
33 trust) in the whole of any lot or tract of land and any
34 appurtenances or improvements, which is used or intended
-42- LRB9011691RCksam
1 to be used, in any manner or part, to commit, or in any
2 manner to facilitate the commission of, any violation or
3 act that constitutes a violation of Section 401 or 405 of
4 this Act or that is the proceeds of any violation or act
5 that constitutes a violation of Section 401 or 405 of
6 this Act.
7 (b) Property subject to forfeiture under this Act may be
8 seized by the Director or any peace officer upon process or
9 seizure warrant issued by any court having jurisdiction over
10 the property. Seizure by the Director or any peace officer
11 without process may be made:
12 (1) if the seizure is incident to inspection under
13 an administrative inspection warrant;
14 (2) if the property subject to seizure has been the
15 subject of a prior judgment in favor of the State in a
16 criminal proceeding, or in an injunction or forfeiture
17 proceeding based upon this Act or the Drug Asset
18 Forfeiture Procedure Act;
19 (3) if there is probable cause to believe that the
20 property is directly or indirectly dangerous to health or
21 safety;
22 (4) if there is probable cause to believe that the
23 property is subject to forfeiture under this Act and the
24 property is seized under circumstances in which a
25 warrantless seizure or arrest would be reasonable; or
26 (5) in accordance with the Code of Criminal
27 Procedure of 1963.
28 (c) In the event of seizure pursuant to subsection (b),
29 forfeiture proceedings shall be instituted in accordance with
30 the Drug Asset Forfeiture Procedure Act.
31 (d) Property taken or detained under this Section shall
32 not be subject to replevin, but is deemed to be in the
33 custody of the Director subject only to the order and
34 judgments of the circuit court having jurisdiction over the
-43- LRB9011691RCksam
1 forfeiture proceedings and the decisions of the State's
2 Attorney under the Drug Asset Forfeiture Procedure Act. When
3 property is seized under this Act, the seizing agency shall
4 promptly conduct an inventory of the seized property and
5 estimate the property's value, and shall forward a copy of
6 the inventory of seized property and the estimate of the
7 property's value to the Director. Upon receiving notice of
8 seizure, the Director may:
9 (1) place the property under seal;
10 (2) remove the property to a place designated by
11 the Director;
12 (3) keep the property in the possession of the
13 seizing agency;
14 (4) remove the property to a storage area for
15 safekeeping or, if the property is a negotiable
16 instrument or money and is not needed for evidentiary
17 purposes, deposit it in an interest bearing account;
18 (5) place the property under constructive seizure
19 by posting notice of pending forfeiture on it, by giving
20 notice of pending forfeiture to its owners and interest
21 holders, or by filing notice of pending forfeiture in any
22 appropriate public record relating to the property; or
23 (6) provide for another agency or custodian,
24 including an owner, secured party, or lienholder, to take
25 custody of the property upon the terms and conditions set
26 by the Director.
27 (e) If the Department of Professional Regulation
28 suspends or revokes a registration, all controlled substances
29 owned or possessed by the registrant at the time of
30 suspension or the effective date of the revocation order may
31 be placed under seal. No disposition may be made of
32 substances under seal until the time for taking an appeal has
33 elapsed or until all appeals have been concluded unless a
34 court, upon application therefor, orders the sale of
-44- LRB9011691RCksam
1 perishable substances and the deposit of the proceeds of the
2 sale with the court. Upon a revocation rule becoming final,
3 all substances may be forfeited to the Department of
4 Professional Regulation.
5 (f) When property is forfeited under this Act the
6 Director shall sell all such property unless such property is
7 required by law to be destroyed or is harmful to the public,
8 and shall distribute the proceeds of the sale, together with
9 any moneys forfeited or seized, in accordance with subsection
10 (g). However, upon the application of the seizing agency or
11 prosecutor who was responsible for the investigation, arrest
12 or arrests and prosecution which lead to the forfeiture, the
13 Director may return any item of forfeited property to the
14 seizing agency or prosecutor for official use in the
15 enforcement of laws relating to cannabis or controlled
16 substances, if the agency or prosecutor can demonstrate that
17 the item requested would be useful to the agency or
18 prosecutor in their enforcement efforts. When any real
19 property returned to the seizing agency is sold by the agency
20 or its unit of government, the proceeds of the sale shall be
21 delivered to the Director and distributed in accordance with
22 subsection (g).
23 (g) All monies and the sale proceeds of all other
24 property forfeited and seized under this Act shall be
25 distributed as follows:
26 (1) 65% shall be distributed to the metropolitan
27 enforcement group, local, municipal, county, or state law
28 enforcement agency or agencies which conducted or
29 participated in the investigation resulting in the
30 forfeiture. The distribution shall bear a reasonable
31 relationship to the degree of direct participation of the
32 law enforcement agency in the effort resulting in the
33 forfeiture, taking into account the total value of the
34 property forfeited and the total law enforcement effort
-45- LRB9011691RCksam
1 with respect to the violation of the law upon which the
2 forfeiture is based. Amounts distributed to the agency or
3 agencies shall be used for the enforcement of laws
4 governing cannabis and controlled substances, except that
5 amounts distributed to the Secretary of State shall be
6 deposited into the Secretary of State Evidence Fund to be
7 used as provided in Section 2-115 of the Illinois Vehicle
8 Code.
9 (2)(i) 12.5% shall be distributed to the Office of
10 the State's Attorney of the county in which the
11 prosecution resulting in the forfeiture was instituted,
12 deposited in a special fund in the county treasury and
13 appropriated to the State's Attorney for use in the
14 enforcement of laws governing cannabis and controlled
15 substances. In counties over 3,000,000 population, 25%
16 will be distributed to the Office of the State's Attorney
17 for use in the enforcement of laws governing cannabis and
18 controlled substances. If the prosecution is undertaken
19 solely by the Attorney General, the portion provided
20 hereunder shall be distributed to the Attorney General
21 for use in the enforcement of laws governing cannabis and
22 controlled substances.
23 (ii) 12.5% shall be distributed to the Office of
24 the State's Attorneys Appellate Prosecutor and deposited
25 in the Narcotics Profit Forfeiture Fund of that office to
26 be used for additional expenses incurred in the
27 investigation, prosecution and appeal of cases arising
28 under laws governing cannabis and controlled substances.
29 The Office of the State's Attorneys Appellate Prosecutor
30 shall not receive distribution from cases brought in
31 counties with over 3,000,000 population.
32 (3) 10% shall be retained by the Department of
33 State Police for expenses related to the administration
34 and sale of seized and forfeited property.
-46- LRB9011691RCksam
1 (h) Species of plants from which controlled substances
2 in Schedules I and II may be derived which have been planted
3 or cultivated in violation of this Act, or of which the
4 owners or cultivators are unknown, or which are wild growths,
5 may be seized and summarily forfeited to the State. The
6 failure, upon demand by the Director or any peace officer, of
7 the person in occupancy or in control of land or premises
8 upon which the species of plants are growing or being stored,
9 to produce registration, or proof that he is the holder
10 thereof, constitutes authority for the seizure and forfeiture
11 of the plants.
12 (a) The following are subject to forfeiture:
13 (1) all substances which have been manufactured,
14 distributed, dispensed, or possessed in violation of this
15 Act;
16 (2) all raw materials, products and equipment of
17 any kind which are used, or intended for use in
18 manufacturing, distributing, dispensing, administering or
19 possessing any substance in violation of this Act;
20 (3) all conveyances, including aircraft, vehicles
21 or vessels, which are used, or intended for use, to
22 transport, or in any manner to facilitate the
23 transportation, sale, receipt, possession, or concealment
24 of property described in paragraphs (1) and (2), but:
25 (i) no conveyance used by any person as a
26 common carrier in the transaction of business as a
27 common carrier is subject to forfeiture under this
28 Section unless it appears that the owner or other
29 person in charge of the conveyance is a consenting
30 party or privy to a violation of this Act;
31 (ii) no conveyance is subject to forfeiture
32 under this Section by reason of any act or omission
33 which the owner proves to have been committed or
34 omitted without his knowledge or consent;
-47- LRB9011691RCksam
1 (iii) a forfeiture of a conveyance encumbered
2 by a bona fide security interest is subject to the
3 interest of the secured party if he neither had
4 knowledge of nor consented to the act or omission;
5 (4) all money, things of value, books, records, and
6 research products and materials including formulas,
7 microfilm, tapes, and data which are used, or intended to
8 be used in violation of this Act;
9 (5) everything of value furnished, or intended to
10 be furnished, in exchange for a substance in violation of
11 this Act, all proceeds traceable to such an exchange, and
12 all moneys, negotiable instruments, and securities used,
13 or intended to be used, to commit or in any manner to
14 facilitate any violation of this Act;
15 (6) all real property, including any right, title,
16 and interest (including, but not limited to, any
17 leasehold interest or the beneficial interest in a land
18 trust) in the whole of any lot or tract of land and any
19 appurtenances or improvements, which is used or intended
20 to be used, in any manner or part, to commit, or in any
21 manner to facilitate the commission of, any violation or
22 act that constitutes a violation of Section 401 or 405 of
23 this Act or that is the proceeds of any violation or act
24 that constitutes a violation of Section 401 or 405 of
25 this Act.
26 (b) Property subject to forfeiture under this Act may be
27 seized by the Director or any peace officer upon process or
28 seizure warrant issued by any court having jurisdiction over
29 the property. Seizure by the Director or any peace officer
30 without process may be made:
31 (1) if the seizure is incident to inspection under
32 an administrative inspection warrant;
33 (2) if the property subject to seizure has been the
34 subject of a prior judgment in favor of the State in a
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1 criminal proceeding, or in an injunction or forfeiture
2 proceeding based upon this Act or the Drug Asset
3 Forfeiture Procedure Act;
4 (3) if there is probable cause to believe that the
5 property is directly or indirectly dangerous to health or
6 safety;
7 (4) if there is probable cause to believe that the
8 property is subject to forfeiture under this Act and the
9 property is seized under circumstances in which a
10 warrantless seizure or arrest would be reasonable; or
11 (5) in accordance with the Code of Criminal
12 Procedure of 1963.
13 (c) In the event of seizure pursuant to subsection (b),
14 forfeiture proceedings shall be instituted in accordance with
15 the Drug Asset Forfeiture Procedure Act.
16 (d) Property taken or detained under this Section shall
17 not be subject to replevin, but is deemed to be in the
18 custody of the Director subject only to the order and
19 judgments of the circuit court having jurisdiction over the
20 forfeiture proceedings and the decisions of the State's
21 Attorney under the Drug Asset Forfeiture Procedure Act. When
22 property is seized under this Act, the seizing agency shall
23 promptly conduct an inventory of the seized property and
24 estimate the property's value, and shall forward a copy of
25 the inventory of seized property and the estimate of the
26 property's value to the Director. Upon receiving notice of
27 seizure, the Director may:
28 (1) place the property under seal;
29 (2) remove the property to a place designated by
30 the Director;
31 (3) keep the property in the possession of the
32 seizing agency;
33 (4) remove the property to a storage area for
34 safekeeping or, if the property is a negotiable
-49- LRB9011691RCksam
1 instrument or money and is not needed for evidentiary
2 purposes, deposit it in an interest bearing account;
3 (5) place the property under constructive seizure
4 by posting notice of pending forfeiture on it, by giving
5 notice of pending forfeiture to its owners and interest
6 holders, or by filing notice of pending forfeiture in any
7 appropriate public record relating to the property; or
8 (6) provide for another agency or custodian,
9 including an owner, secured party, or lienholder, to take
10 custody of the property upon the terms and conditions set
11 by the Director.
12 (e) If the Department of Professional Regulation
13 suspends or revokes a registration, all controlled substances
14 owned or possessed by the registrant at the time of
15 suspension or the effective date of the revocation order may
16 be placed under seal. No disposition may be made of
17 substances under seal until the time for taking an appeal has
18 elapsed or until all appeals have been concluded unless a
19 court, upon application therefor, orders the sale of
20 perishable substances and the deposit of the proceeds of the
21 sale with the court. Upon a revocation rule becoming final,
22 all substances may be forfeited to the Department of
23 Professional Regulation.
24 (f) When property is forfeited under this Act the
25 Director shall sell all such property unless such property is
26 required by law to be destroyed or is harmful to the public,
27 and shall distribute the proceeds of the sale, together with
28 any moneys forfeited or seized, in accordance with subsection
29 (g). However, upon the application of the seizing agency or
30 prosecutor who was responsible for the investigation, arrest
31 or arrests and prosecution which lead to the forfeiture, the
32 Director may return any item of forfeited property to the
33 seizing agency or prosecutor for official use in the
34 enforcement of laws relating to cannabis or controlled
-50- LRB9011691RCksam
1 substances, if the agency or prosecutor can demonstrate that
2 the item requested would be useful to the agency or
3 prosecutor in their enforcement efforts. When any real
4 property returned to the seizing agency is sold by the agency
5 or its unit of government, the proceeds of the sale shall be
6 delivered to the Director and distributed in accordance with
7 subsection (g).
8 (g) All monies and the sale proceeds of all other
9 property forfeited and seized under this Act shall be
10 distributed as follows:
11 (1) 65% shall be distributed to the metropolitan
12 enforcement group, local, municipal, county, or state law
13 enforcement agency or agencies which conducted or
14 participated in the investigation resulting in the
15 forfeiture. The distribution shall bear a reasonable
16 relationship to the degree of direct participation of the
17 law enforcement agency in the effort resulting in the
18 forfeiture, taking into account the total value of the
19 property forfeited and the total law enforcement effort
20 with respect to the violation of the law upon which the
21 forfeiture is based. Amounts distributed to the agency or
22 agencies shall be used for the enforcement of laws
23 governing cannabis and controlled substances, except that
24 amounts distributed to the Secretary of State shall be
25 deposited into the Secretary of State Evidence Fund to be
26 used as provided in Section 2-115 of the Illinois Vehicle
27 Code.
28 (2)(i) 12.5% shall be distributed to the Office of
29 the State's Attorney of the county in which the
30 prosecution resulting in the forfeiture was instituted,
31 deposited in a special fund in the county treasury and
32 appropriated to the State's Attorney for use in the
33 enforcement of laws governing cannabis and controlled
34 substances. In counties over 3,000,000 population, 25%
-51- LRB9011691RCksam
1 will be distributed to the Office of the State's Attorney
2 for use in the enforcement of laws governing cannabis and
3 controlled substances. If the prosecution is undertaken
4 solely by the Attorney General, the portion provided
5 hereunder shall be distributed to the Attorney General
6 for use in the enforcement of laws governing cannabis and
7 controlled substances.
8 (ii) 12.5% shall be distributed to the Office of
9 the State's Attorneys Appellate Prosecutor and deposited
10 in the Narcotics Profit Forfeiture Fund of that office to
11 be used for additional expenses incurred in the
12 investigation, prosecution and appeal of cases arising
13 under laws governing cannabis and controlled substances.
14 The Office of the State's Attorneys Appellate Prosecutor
15 shall not receive distribution from cases brought in
16 counties with over 3,000,000 population.
17 (3) 10% shall be retained by the Department of
18 State Police for expenses related to the administration
19 and sale of seized and forfeited property.
20 (h) Species of plants from which controlled substances
21 in Schedules I and II may be derived which have been planted
22 or cultivated in violation of this Act, or of which the
23 owners or cultivators are unknown, or which are wild growths,
24 may be seized and summarily forfeited to the State. The
25 failure, upon demand by the Director or any peace officer, of
26 the person in occupancy or in control of land or premises
27 upon which the species of plants are growing or being stored,
28 to produce registration, or proof that he is the holder
29 thereof, constitutes authority for the seizure and forfeiture
30 of the plants.
31 (Source: P.A. 88-517; 89-404, eff. 8-20-95.)
32 Section 30. Section 107-4 of the Code of Criminal
33 Procedure of 1963 is amended as follows:
-52- LRB9011691RCksam
1 (725 ILCS 5/107-4) (from Ch. 38, par. 107-4)
2 Sec. 107-4. Arrest by peace officer from other
3 jurisdiction.
4 (a) As used in this Section:
5 (1) "State" means any state of the United States
6 and the District of Columbia.
7 (2) "Peace Officer" means any peace officer or
8 member of any duly organized State, County, or Municipal
9 peace unit or police force of another state.
10 (3) "Fresh pursuit" means the immediate pursuit of
11 a person who is endeavoring to avoid arrest.
12 (4) "Law enforcement agency" means a municipal
13 police department or county sheriff's office of this
14 State.
15 (a-3) Any peace officer employed by a law enforcement
16 agency of this State may conduct temporary questioning
17 pursuant to Section 107-14 of this Code and may make arrests
18 in any jurisdiction within this State if: (1) the officer is
19 engaged in the investigation of an offense that occurred in
20 the officer's primary jurisdiction and the temporary
21 questioning is conducted or the arrest is made pursuant to
22 that investigation; or (2) the officer, while on duty as a
23 peace officer, becomes personally aware of the immediate
24 commission of a felony or misdemeanor violation of the laws
25 of this State. While acting pursuant to this subsection, an
26 officer has the same authority as within his or her own
27 jurisdiction.
28 (a-7) The law enforcement agency of the county or
29 municipality in which any arrest is made under this Section
30 shall be immediately notified of the arrest.
31 (b) Any peace officer of another state who enters this
32 State in fresh pursuit and continues within this State in
33 fresh pursuit of a person in order to arrest him on the
34 ground that he has committed an offense in the other state
-53- LRB9011691RCksam
1 has the same authority to arrest and hold the person in
2 custody as peace officers of this State have to arrest and
3 hold a person in custody on the ground that he has committed
4 an offense in this State.
5 (c) If an arrest is made in this State by a peace
6 officer of another state in accordance with the provisions of
7 this Section he shall without unnecessary delay take the
8 person arrested before the circuit court of the county in
9 which the arrest was made. Such court shall conduct a hearing
10 for the purpose of determining the lawfulness of the arrest.
11 If the court determines that the arrest was lawful it shall
12 commit the person arrested, to await for a reasonable time
13 the issuance of an extradition warrant by the Governor of
14 this State, or admit him to bail for such purpose. If the
15 court determines that the arrest was unlawful it shall
16 discharge the person arrested.
17 Arrest by peace officer from other jurisdiction.
18 (a) As used in this Section:
19 (1) "State" means any State of the United States
20 and the District of Columbia.
21 (2) "Peace Officer" means any peace officer or
22 member of any duly organized State, County, or Municipal
23 peace unit or police force of another State.
24 (3) "Fresh pursuit" means the immediate pursuit of
25 a person who is endeavoring to avoid arrest.
26 (4) "Law enforcement agency" means a municipal
27 police department or county sheriff's office of this
28 State.
29 (a-3) Any peace officer employed by a law enforcement
30 agency of this State may conduct temporary questioning
31 pursuant to Section 107-14 of this Code and may make arrests
32 in any jurisdiction within this State if: (1) the officer is
33 engaged in the investigation of an offense that occurred in
34 the officer's primary jurisdiction and the temporary
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1 questioning is conducted or the arrest is made pursuant to
2 that investigation; or (2) the officer, while on duty as a
3 peace officer, becomes personally aware of the immediate
4 commission of a felony or misdemeanor violation of the laws
5 of this State. While acting pursuant to this subsection, an
6 officer has the same authority as within his or her own
7 jurisdiction.
8 (a-7) The law enforcement agency of the county or
9 municipality in which any arrest is made under this Section
10 shall be immediately notified of the arrest.
11 (b) Any peace officer of another State who enters this
12 State in fresh pursuit and continues within this State in
13 fresh pursuit of a person in order to arrest him on the
14 ground that he has committed an offense in the other State
15 has the same authority to arrest and hold the person in
16 custody as peace officers of this State have to arrest and
17 hold a person in custody on the ground that he has committed
18 an offense in this State.
19 (c) If an arrest is made in this State by a peace
20 officer of another State in accordance with the provisions of
21 this Section he shall without unnecessary delay take the
22 person arrested before the circuit court of the county in
23 which the arrest was made. Such court shall conduct a hearing
24 for the purpose of determining the lawfulness of the arrest.
25 If the court determines that the arrest was lawful it shall
26 commit the person arrested, to await for a reasonable time
27 the issuance of an extradition warrant by the Governor of
28 this State, or admit him to bail for such purpose. If the
29 court determines that the arrest was unlawful it shall
30 discharge the person arrested.
31 (Source: P.A. 89-404, eff. 8-20-95.)
32 Section 35. Section 9 of the Drug Asset Forfeiture
33 Procedure Act is amended as follows:
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1 (725 ILCS 150/9) (from Ch. 56 1/2, par. 1679)
2 Sec. 9. Judicial in rem procedures. If property seized
3 under the provisions of the Illinois Controlled Substances
4 Act or the Cannabis Control Act is non-real property that
5 exceeds $20,000 in value excluding the value of any
6 conveyance, or is real property, or a claimant has filed a
7 claim and a cost bond under subsection (C) of Section 6 of
8 this Act, the following judicial in rem procedures shall
9 apply:
10 (A) If, after a review of the facts surrounding the
11 seizure, the State's Attorney is of the opinion that the
12 seized property is subject to forfeiture, then within 45 days
13 of the receipt of notice of seizure by the seizing agency or
14 the filing of the claim and cost bond, whichever is later,
15 the State's Attorney shall institute judicial forfeiture
16 proceedings by filing a verified complaint for forfeiture
17 and, if the claimant has filed a claim and cost bond, by
18 depositing the cost bond with the clerk of the court. When
19 authorized by law, a forfeiture must be ordered by a court on
20 an action in rem brought by a State's Attorney under a
21 verified complaint for forfeiture.
22 (B) During the probable cause portion of the judicial in
23 rem proceeding wherein the State presents its case-in-chief,
24 the court must receive and consider, among other things, all
25 relevant hearsay evidence and information. The laws of
26 evidence relating to civil actions shall apply to all other
27 portions of the judicial in rem proceeding.
28 (C) Only an owner of or interest holder in the property
29 may file an answer asserting a claim against the property in
30 the action in rem. For purposes of this Section, the owner
31 or interest holder shall be referred to as claimant.
32 (D) The answer must be signed by the owner or interest
33 holder under penalty of perjury and must set forth:
34 (i) the caption of the proceedings as set forth on
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1 the notice of pending forfeiture and the name of the
2 claimant;
3 (ii) the address at which the claimant will accept
4 mail;
5 (iii) the nature and extent of the claimant's
6 interest in the property;
7 (iv) the date, identity of transferor, and
8 circumstances of the claimant's acquisition of the
9 interest in the property;
10 (v) the name and address of all other persons known
11 to have an interest in the property;
12 (vi) the specific provisions of Section 8 of this
13 Act relied on in asserting it is not subject to
14 forfeiture;
15 (vii) all essential facts supporting each
16 assertion; and
17 (viii) the precise relief sought.
18 (E) The answer must be filed with the court within 45
19 days after service of the civil in rem complaint.
20 (F) The hearing must be held within 60 days after filing
21 of the answer unless continued for good cause.
22 (G) The state shall show the existence of probable cause
23 for forfeiture of the property. If the State shows probable
24 cause, the claimant has the burden of showing by a
25 preponderance of the evidence that the claimant's interest in
26 the property is not subject to forfeiture.
27 (H) If the State does not show existence of probable
28 cause or a claimant has established by a preponderance of
29 evidence that the claimant has an interest that is exempt
30 under Section 8 of this Act, the court shall order the
31 interest in the property returned or conveyed to the claimant
32 and shall order all other property forfeited to the State. If
33 the State does show existence of probable cause and the
34 claimant does not establish by a preponderance of evidence
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1 that the claimant has an interest that is exempt under
2 Section 8 of this Act, the court shall order all property
3 forfeited to the State.
4 (I) A defendant convicted in any criminal proceeding is
5 precluded from later denying the essential allegations of the
6 criminal offense of which the defendant was convicted in any
7 proceeding under this Act regardless of the pendency of an
8 appeal from that conviction. However, evidence of the
9 pendency of an appeal is admissible.
10 (J) An acquittal or dismissal in a criminal proceeding
11 shall not preclude civil proceedings under this Act; however,
12 for good cause shown, on a motion by the State's Attorney,
13 the court may stay civil forfeiture proceedings during the
14 criminal trial for a related criminal indictment or
15 information alleging a violation of the Illinois Controlled
16 Substances Act or the Cannabis Control Act. Such a stay
17 shall not be available pending an appeal. Property subject
18 to forfeiture under the Illinois Controlled Substances Act or
19 the Cannabis Control Act shall not be subject to return or
20 release by a court exercising jurisdiction over a criminal
21 case involving the seizure of such property unless such
22 return or release is consented to by the State's Attorney.
23 (K) All property declared forfeited under this Act vests
24 in this State on the commission of the conduct giving rise to
25 forfeiture together with the proceeds of the property after
26 that time. Any such property or proceeds subsequently
27 transferred to any person remain subject to forfeiture and
28 thereafter shall be ordered forfeited unless the transferee
29 claims and establishes in a hearing under the provisions of
30 this Act that the transferee's interest is exempt under
31 Section 8 of this Act.
32 (L) A civil action under this Act must be commenced
33 within 5 years after the last conduct giving rise to
34 forfeiture became known or should have become known or 5
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1 years after the forfeitable property is discovered, whichever
2 is later, excluding any time during which either the property
3 or claimant is out of the State or in confinement or during
4 which criminal proceedings relating to the same conduct are
5 in progress.
6 Judicial in rem procedures. If property seized under the
7 provisions of the Illinois Controlled Substances Act or the
8 Cannabis Control Act is non-real property that exceeds
9 $20,000 in value excluding the value of any conveyance, or is
10 real property, or a claimant has filed a claim and a cost
11 bond under subsection (C) of Section 6 of this Act, the
12 following judicial in rem procedures shall apply:
13 (A) If, after a review of the facts surrounding the
14 seizure, the State's Attorney is of the opinion that the
15 seized property is subject to forfeiture, then within 45 days
16 of the receipt of notice of seizure by the seizing agency or
17 the filing of the claim and cost bond, whichever is later,
18 the State's Attorney shall institute judicial forfeiture
19 proceedings by filing a verified complaint for forfeiture
20 and, if the claimant has filed a claim and cost bond, by
21 depositing the cost bond with the clerk of the court. When
22 authorized by law, a forfeiture must be ordered by a court on
23 an action in rem brought by a State's Attorney under a
24 verified complaint for forfeiture.
25 (B) During the probable cause portion of the judicial in
26 rem proceeding wherein the State presents its case-in-chief,
27 the court must receive and consider, among other things, all
28 relevant hearsay evidence and information. The laws of
29 evidence relating to civil actions shall apply to all other
30 portions of the judicial in rem proceeding.
31 (C) Only an owner of or interest holder in the property
32 may file an answer asserting a claim against the property in
33 the action in rem. For purposes of this Section, the owner
34 or interest holder shall be referred to as claimant.
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1 (D) The answer must be signed by the owner or interest
2 holder under penalty of perjury and must set forth:
3 (i) the caption of the proceedings as set forth on
4 the notice of pending forfeiture and the name of the
5 claimant;
6 (ii) the address at which the claimant will accept
7 mail;
8 (iii) the nature and extent of the claimant's
9 interest in the property;
10 (iv) the date, identity of transferor, and
11 circumstances of the claimant's acquisition of the
12 interest in the property;
13 (v) the name and address of all other persons known
14 to have an interest in the property;
15 (vi) the specific provisions of Section 8 of this
16 Act relied on in asserting it is not subject to
17 forfeiture;
18 (vii) all essential facts supporting each
19 assertion; and
20 (viii) the precise relief sought.
21 (E) The answer must be filed with the court within 45
22 days after service of the civil in rem complaint.
23 (F) The hearing must be held within 60 days after filing
24 of the answer unless continued for good cause.
25 (G) The state shall show the existence of probable cause
26 for forfeiture of the property. If the State shows probable
27 cause, the claimant has the burden of showing by a
28 preponderance of the evidence that the claimant's interest in
29 the property is not subject to forfeiture.
30 (H) If the State does not show existence of probable
31 cause or a claimant has established by a preponderance of
32 evidence that the claimant has an interest that is exempt
33 under Section 8 of this Act, the court shall order the
34 interest in the property returned or conveyed to the claimant
-60- LRB9011691RCksam
1 and shall order all other property forfeited to the State. If
2 the State does show existence of probable cause and the
3 claimant does not establish by a preponderance of evidence
4 that the claimant has an interest that is exempt under
5 Section 8 of this Act, the court shall order all property
6 forfeited to the State.
7 (I) A defendant convicted in any criminal proceeding is
8 precluded from later denying the essential allegations of the
9 criminal offense of which the defendant was convicted in any
10 proceeding under this Act regardless of the pendency of an
11 appeal from that conviction. However, evidence of the
12 pendency of an appeal is admissible.
13 (J) An acquittal or dismissal in a criminal proceeding
14 shall not preclude civil proceedings under this Act; however,
15 for good cause shown, on a motion by the State's Attorney,
16 the court may stay civil forfeiture proceedings during the
17 criminal trial for a related criminal indictment or
18 information alleging a violation of the Illinois Controlled
19 Substances Act or the Cannabis Control Act. Such a stay
20 shall not be available pending an appeal. Property subject
21 to forfeiture under the Illinois Controlled Substances Act or
22 the Cannabis Control Act shall not be subject to return or
23 release by a court exercising jurisdiction over a criminal
24 case involving the seizure of such property unless such
25 return or release is consented to by the State's Attorney.
26 (K) All property declared forfeited under this Act vests
27 in this State on the commission of the conduct giving rise to
28 forfeiture together with the proceeds of the property after
29 that time. Any such property or proceeds subsequently
30 transferred to any person remain subject to forfeiture and
31 thereafter shall be ordered forfeited unless the transferee
32 claims and establishes in a hearing under the provisions of
33 this Act that the transferee's interest is exempt under
34 Section 8 of this Act.
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1 (L) A civil action under this Act must be commenced
2 within 5 years after the last conduct giving rise to
3 forfeiture became known or should have become known or 5
4 years after the forfeitable property is discovered, whichever
5 is later, excluding any time during which either the property
6 or claimant is out of the State or in confinement or during
7 which criminal proceedings relating to the same conduct are
8 in progress.
9 (Source: P.A. 89-404, eff. 8-20-95.)
10 Section 40. Sections 3-6-3, 3-6-3.1, 5-1-11, 5-2-4, and
11 5-4-1 of the Unified Code of Corrections are amended as
12 follows:
13 (730 ILCS 5/3-6-3) (from Ch. 38, par. 1003-6-3)
14 Sec. 3-6-3. Rules and Regulations for Early Release.
15 (a)(1) The Department of Corrections shall
16 prescribe rules and regulations for the early release on
17 account of good conduct of persons committed to the
18 Department which shall be subject to review by the
19 Prisoner Review Board.
20 (2) The rules and regulations on early release
21 shall provide, with respect to offenses committed on or
22 after the effective date of this amendatory Act of 1998,
23 the following:
24 (i) that a prisoner who is serving a term of
25 imprisonment for first degree murder shall receive
26 no good conduct credit and shall serve the entire
27 sentence imposed by the court;
28 (ii) that a prisoner serving a sentence for
29 attempt to commit first degree murder, solicitation
30 of murder, solicitation of murder for hire,
31 intentional homicide of an unborn child, predatory
32 criminal sexual assault of a child, aggravated
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1 criminal sexual assault, criminal sexual assault,
2 aggravated kidnapping, aggravated battery with a
3 firearm, heinous battery, aggravated battery of a
4 senior citizen, or aggravated battery of a child
5 shall receive no more than 4.5 days of good conduct
6 credit for each month of his or her sentence of
7 imprisonment; and
8 (iii) that a prisoner serving a sentence for
9 home invasion, armed robbery, aggravated vehicular
10 hijacking, aggravated discharge of a firearm, or
11 armed violence with a category I weapon or category
12 II weapon, when the court has made and entered a
13 finding, pursuant to subsection (c-1) of Section
14 5-4-1 of this Code, that the conduct leading to
15 conviction for the enumerated offense resulted in
16 great bodily harm to a victim, shall receive no more
17 than 4.5 days of good conduct credit for each month
18 of his or her sentence of imprisonment.
19 (2.1) For all offenses, other than those enumerated
20 in subdivision (a)(2) committed on or after the effective
21 date of this amendatory Act of 1998, the rules and
22 regulations shall provide that a prisoner who is serving
23 a term of imprisonment shall receive one day of good
24 conduct credit for each day of his or her sentence of
25 imprisonment or recommitment under Section 3-3-9. Each
26 day of good conduct credit shall reduce by one day the
27 prisoner's period of imprisonment or recommitment under
28 Section 3-3-9.
29 (2.2) A prisoner serving a term of natural life
30 imprisonment or a prisoner who has been sentenced to
31 death shall receive no good conduct credit.
32 (3) The rules and regulations shall also provide
33 that the Director may award up to 180 days additional
34 good conduct credit for meritorious service in specific
-63- LRB9011691RCksam
1 instances as the Director deems proper; except that no
2 more than 90 days of good conduct credit for meritorious
3 service shall be awarded to any prisoner who is serving a
4 sentence for conviction of first degree murder, reckless
5 homicide while under the influence of alcohol or any
6 other drug, aggravated kidnapping, kidnapping, predatory
7 criminal sexual assault of a child, aggravated criminal
8 sexual assault, criminal sexual assault, deviate sexual
9 assault, aggravated criminal sexual abuse, aggravated
10 indecent liberties with a child, indecent liberties with
11 a child, child pornography, heinous battery, aggravated
12 battery of a spouse, aggravated battery of a spouse with
13 a firearm, stalking, aggravated stalking, aggravated
14 battery of a child, endangering the life or health of a
15 child, cruelty to a child, or narcotic racketeering.
16 Notwithstanding the foregoing, good conduct credit for
17 meritorious service shall not be awarded on a sentence of
18 imprisonment imposed for conviction of one of the
19 offenses enumerated in subdivision (a)(2) when the
20 offense is committed on or after the effective date of
21 this amendatory Act of 1998.
22 (4) The rules and regulations shall also provide
23 that the good conduct credit accumulated and retained
24 under paragraph (2.1) of subsection (a) of this Section
25 by any inmate during specific periods of time in which
26 such inmate is engaged full-time in substance abuse
27 programs, correctional industry assignments, or
28 educational programs provided by the Department under
29 this paragraph (4) and satisfactorily completes the
30 assigned program as determined by the standards of the
31 Department, shall be multiplied by a factor of 1.25 for
32 program participation before August 11, 1993 and 1.50 for
33 program participation on or after that date. However, no
34 inmate shall be eligible for the additional good conduct
-64- LRB9011691RCksam
1 credit under this paragraph (4) while assigned to a boot
2 camp, mental health unit, or electronic detention, or if
3 convicted of an offense enumerated in paragraph (a)(2) of
4 this Section that is committed on or after the effective
5 date of this amendatory Act of 1998, or first degree
6 murder, a Class X felony, criminal sexual assault, felony
7 criminal sexual abuse, aggravated criminal sexual abuse,
8 aggravated battery with a firearm, or any predecessor or
9 successor offenses with the same or substantially the
10 same elements, or any inchoate offenses relating to the
11 foregoing offenses. No inmate shall be eligible for the
12 additional good conduct credit under this paragraph (4)
13 who (i) has previously received increased good conduct
14 credit under this paragraph (4) and has subsequently been
15 convicted of a felony, or (ii) has previously served more
16 than one prior sentence of imprisonment for a felony in
17 an adult correctional facility.
18 Educational, vocational, substance abuse and
19 correctional industry programs under which good conduct
20 credit may be increased under this paragraph (4) shall be
21 evaluated by the Department on the basis of documented
22 standards. The Department shall report the results of
23 these evaluations to the Governor and the General
24 Assembly by September 30th of each year. The reports
25 shall include data relating to the recidivism rate among
26 program participants.
27 Availability of these programs shall be subject to
28 the limits of fiscal resources appropriated by the
29 General Assembly for these purposes. Eligible inmates
30 who are denied immediate admission shall be placed on a
31 waiting list under criteria established by the
32 Department. The inability of any inmate to become engaged
33 in any such programs by reason of insufficient program
34 resources or for any other reason established under the
-65- LRB9011691RCksam
1 rules and regulations of the Department shall not be
2 deemed a cause of action under which the Department or
3 any employee or agent of the Department shall be liable
4 for damages to the inmate.
5 (5) Whenever the Department is to release any
6 inmate earlier than it otherwise would because of a grant
7 of good conduct credit for meritorious service given at
8 any time during the term, the Department shall give
9 reasonable advance notice of the impending release to the
10 State's Attorney of the county where the prosecution of
11 the inmate took place.
12 (b) Whenever a person is or has been committed under
13 several convictions, with separate sentences, the sentences
14 shall be construed under Section 5-8-4 in granting and
15 forfeiting of good time.
16 (c) The Department shall prescribe rules and regulations
17 for revoking good conduct credit, or suspending or reducing
18 the rate of accumulation of good conduct credit for specific
19 rule violations, during imprisonment. These rules and
20 regulations shall provide that no inmate may be penalized
21 more than one year of good conduct credit for any one
22 infraction.
23 When the Department seeks to revoke, suspend or reduce
24 the rate of accumulation of any good conduct credits for an
25 alleged infraction of its rules, it shall bring charges
26 therefor against the prisoner sought to be so deprived of
27 good conduct credits before the Prisoner Review Board as
28 provided in subparagraph (a)(4) of Section 3-3-2 of this
29 Code, if the amount of credit at issue exceeds 30 days or
30 when during any 12 month period, the cumulative amount of
31 credit revoked exceeds 30 days except where the infraction is
32 committed or discovered within 60 days of scheduled release.
33 In those cases, the Department of Corrections may revoke up
34 to 30 days of good conduct credit. The Board may subsequently
-66- LRB9011691RCksam
1 approve the revocation of additional good conduct credit, if
2 the Department seeks to revoke good conduct credit in excess
3 of 30 days. However, the Board shall not be empowered to
4 review the Department's decision with respect to the loss of
5 30 days of good conduct credit within any calendar year for
6 any prisoner or to increase any penalty beyond the length
7 requested by the Department.
8 The Director of the Department of Corrections, in
9 appropriate cases, may restore up to 30 days good conduct
10 credits which have been revoked, suspended or reduced. Any
11 restoration of good conduct credits in excess of 30 days
12 shall be subject to review by the Prisoner Review Board.
13 However, the Board may not restore good conduct credit in
14 excess of the amount requested by the Director.
15 Nothing contained in this Section shall prohibit the
16 Prisoner Review Board from ordering, pursuant to Section
17 3-3-9(a)(3)(i)(B), that a prisoner serve up to one year of
18 the sentence imposed by the court that was not served due to
19 the accumulation of good conduct credit.
20 (d) If a lawsuit is filed by a prisoner in an Illinois
21 or federal court against the State, the Department of
22 Corrections, or the Prisoner Review Board, or against any of
23 their officers or employees, and the court makes a specific
24 finding that a pleading, motion, or other paper filed by the
25 prisoner is frivolous, the Department of Corrections shall
26 conduct a hearing to revoke up to 180 days of good conduct
27 credit by bringing charges against the prisoner sought to be
28 deprived of the good conduct credits before the Prisoner
29 Review Board as provided in subparagraph (a)(8) of Section
30 3-3-2 of this Code. If the prisoner has not accumulated 180
31 days of good conduct credit at the time of the finding, then
32 the Prisoner Review Board may revoke all good conduct credit
33 accumulated by the prisoner.
34 For purposes of this subsection (d):
-67- LRB9011691RCksam
1 (1) "Frivolous" means that a pleading, motion, or
2 other filing which purports to be a legal document filed
3 by a prisoner in his or her lawsuit meets any or all of
4 the following criteria:
5 (A) it lacks an arguable basis either in law
6 or in fact;
7 (B) it is being presented for any improper
8 purpose, such as to harass or to cause unnecessary
9 delay or needless increase in the cost of
10 litigation;
11 (C) the claims, defenses, and other legal
12 contentions therein are not warranted by existing
13 law or by a nonfrivolous argument for the extension,
14 modification, or reversal of existing law or the
15 establishment of new law;
16 (D) the allegations and other factual
17 contentions do not have evidentiary support or, if
18 specifically so identified, are not likely to have
19 evidentiary support after a reasonable opportunity
20 for further investigation or discovery; or
21 (E) the denials of factual contentions are not
22 warranted on the evidence, or if specifically so
23 identified, are not reasonably based on a lack of
24 information or belief.
25 (2) "Lawsuit" means a petition for post conviction
26 relief under Article 122 of the Code of Criminal
27 Procedure of 1963, a motion pursuant to Section 116-3 of
28 the Code of Criminal Procedure of 1963, a habeas corpus
29 action under Article X of the Code of Civil Procedure or
30 under federal law (28 U.S.C. 2254), a petition for claim
31 under the Court of Claims Act or an action under the
32 federal Civil Rights Act (42 U.S.C. 1983).
33 (e) Nothing in this amendatory Act of 1998 affects the
34 validity of Public Act 89-404. Rules and Regulations for
-68- LRB9011691RCksam
1 Early Release.
2 (a)(1) The Department of Corrections shall
3 prescribe rules and regulations for the early release on
4 account of good conduct of persons committed to the
5 Department which shall be subject to review by the
6 Prisoner Review Board.
7 (2) The rules and regulations on early release
8 shall provide, with respect to offenses committed on or
9 after the effective date of this amendatory Act of 1995,
10 the following:
11 (i) that a prisoner who is serving a term of
12 imprisonment for first degree murder shall receive
13 no good conduct credit and shall serve the entire
14 sentence imposed by the court;
15 (ii) that a prisoner serving a sentence for
16 attempt to commit first degree murder, solicitation
17 of murder, solicitation of murder for hire,
18 intentional homicide of an unborn child, predatory
19 criminal sexual assault of a child, aggravated
20 criminal sexual assault, criminal sexual assault,
21 aggravated kidnapping, aggravated battery with a
22 firearm, heinous battery, aggravated battery of a
23 senior citizen, or aggravated battery of a child
24 shall receive no more than 4.5 days of good conduct
25 credit for each month of his or her sentence of
26 imprisonment; and
27 (iii) that a prisoner serving a sentence for
28 home invasion, armed robbery, aggravated vehicular
29 hijacking, aggravated discharge of a firearm, or
30 armed violence with a category I weapon or category
31 II weapon, when the court has made and entered a
32 finding, pursuant to subsection (c-1) of Section
33 5-4-1 of this Code, that the conduct leading to
34 conviction for the enumerated offense resulted in
-69- LRB9011691RCksam
1 great bodily harm to a victim, shall receive no more
2 than 4.5 days of good conduct credit for each month
3 of his or her sentence of imprisonment.
4 (2.1) For all offenses, other than those enumerated
5 in subdivision (a)(2) committed on or after the effective
6 date of this amendatory Act of 1995, the rules and
7 regulations shall provide that a prisoner who is serving
8 a term of imprisonment shall receive one day of good
9 conduct credit for each day of his or her sentence of
10 imprisonment or recommitment under Section 3-3-9. Each
11 day of good conduct credit shall reduce by one day the
12 prisoner's period of imprisonment or recommitment under
13 Section 3-3-9.
14 (2.2) A prisoner serving a term of natural life
15 imprisonment or a prisoner who has been sentenced to
16 death shall receive no good conduct credit.
17 (3) The rules and regulations shall also provide
18 that the Director may award up to 180 days additional
19 good conduct credit for meritorious service in specific
20 instances as the Director deems proper; except that no
21 more than 90 days of good conduct credit for meritorious
22 service shall be awarded to any prisoner who is serving a
23 sentence for conviction of first degree murder, reckless
24 homicide while under the influence of alcohol or any
25 other drug, aggravated kidnapping, kidnapping, predatory
26 criminal sexual assault of a child, aggravated criminal
27 sexual assault, criminal sexual assault, deviate sexual
28 assault, aggravated criminal sexual abuse, aggravated
29 indecent liberties with a child, indecent liberties with
30 a child, child pornography, heinous battery, aggravated
31 battery of a spouse, aggravated battery of a spouse with
32 a firearm, stalking, aggravated stalking, aggravated
33 battery of a child, endangering the life or health of a
34 child, cruelty to a child, or narcotic racketeering.
-70- LRB9011691RCksam
1 Notwithstanding the foregoing, good conduct credit for
2 meritorious service shall not be awarded on a sentence of
3 imprisonment imposed for conviction of one of the
4 offenses enumerated in subdivision (a)(2) when the
5 offense is committed on or after the effective date of
6 this amendatory Act of 1995.
7 (4) The rules and regulations shall also provide
8 that the good conduct credit accumulated and retained
9 under paragraph (2.1) of subsection (a) of this Section
10 by any inmate during specific periods of time in which
11 such inmate is engaged full-time in substance abuse
12 programs, correctional industry assignments, or
13 educational programs provided by the Department under
14 this paragraph (4) and satisfactorily completes the
15 assigned program as determined by the standards of the
16 Department, shall be multiplied by a factor of 1.25 for
17 program participation before the effective date of this
18 amendatory Act of 1993 and 1.50 for program participation
19 on or after that date. However, no inmate shall be
20 eligible for the additional good conduct credit under
21 this paragraph (4) while assigned to a boot camp, mental
22 health unit, or electronic detention, or if convicted of
23 an offense enumerated in paragraph (a)(2) of this Section
24 that is committed on or after the effective date of this
25 amendatory Act of 1995, or first degree murder, a Class X
26 felony, criminal sexual assault, felony criminal sexual
27 abuse, aggravated criminal sexual abuse, aggravated
28 battery with a firearm, or any predecessor or successor
29 offenses with the same or substantially the same
30 elements, or any inchoate offenses relating to the
31 foregoing offenses. No inmate shall be eligible for the
32 additional good conduct credit under this paragraph (4)
33 who (i) has previously received increased good conduct
34 credit under this paragraph (4) and has subsequently been
-71- LRB9011691RCksam
1 convicted of a felony, or (ii) has previously served more
2 than one prior sentence of imprisonment for a felony in
3 an adult correctional facility.
4 Educational, vocational, substance abuse and
5 correctional industry programs under which good conduct
6 credit may be increased under this paragraph (4) shall be
7 evaluated by the Department on the basis of documented
8 standards. The Department shall report the results of
9 these evaluations to the Governor and the General
10 Assembly by September 30th of each year. The reports
11 shall include data relating to the recidivism rate among
12 program participants.
13 Availability of these programs shall be subject to
14 the limits of fiscal resources appropriated by the
15 General Assembly for these purposes. Eligible inmates
16 who are denied immediate admission shall be placed on a
17 waiting list under criteria established by the
18 Department. The inability of any inmate to become engaged
19 in any such programs by reason of insufficient program
20 resources or for any other reason established under the
21 rules and regulations of the Department shall not be
22 deemed a cause of action under which the Department or
23 any employee or agent of the Department shall be liable
24 for damages to the inmate.
25 (5) Whenever the Department is to release any
26 inmate earlier than it otherwise would because of a grant
27 of good conduct credit for meritorious service given at
28 any time during the term, the Department shall give
29 reasonable advance notice of the impending release to the
30 State's Attorney of the county where the prosecution of
31 the inmate took place.
32 (b) Whenever a person is or has been committed under
33 several convictions, with separate sentences, the sentences
34 shall be construed under Section 5-8-4 in granting and
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1 forfeiting of good time.
2 (c) The Department shall prescribe rules and regulations
3 for revoking good conduct credit, or suspending or reducing
4 the rate of accumulation of good conduct credit for specific
5 rule violations, during imprisonment. These rules and
6 regulations shall provide that no inmate may be penalized
7 more than one year of good conduct credit for any one
8 infraction.
9 When the Department seeks to revoke, suspend or reduce
10 the rate of accumulation of any good conduct credits for an
11 alleged infraction of its rules, it shall bring charges
12 therefor against the prisoner sought to be so deprived of
13 good conduct credits before the Prisoner Review Board as
14 provided in subparagraph (a)(4) of Section 3-3-2 of this
15 Code, if the amount of credit at issue exceeds 30 days or
16 when during any 12 month period, the cumulative amount of
17 credit revoked exceeds 30 days except where the infraction is
18 committed or discovered within 60 days of scheduled release.
19 In those cases, the Department of Corrections may revoke up
20 to 30 days of good conduct credit. The Board may subsequently
21 approve the revocation of additional good conduct credit, if
22 the Department seeks to revoke good conduct credit in excess
23 of 30 days. However, the Board shall not be empowered to
24 review the Department's decision with respect to the loss of
25 30 days of good conduct credit within any calendar year for
26 any prisoner or to increase any penalty beyond the length
27 requested by the Department.
28 The Director of the Department of Corrections, in
29 appropriate cases, may restore up to 30 days good conduct
30 credits which have been revoked, suspended or reduced. Any
31 restoration of good conduct credits in excess of 30 days
32 shall be subject to review by the Prisoner Review Board.
33 However, the Board may not restore good conduct credit in
34 excess of the amount requested by the Director.
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1 Nothing contained in this Section shall prohibit the
2 Prisoner Review Board from ordering, pursuant to Section
3 3-3-9(a)(3)(i)(B), that a prisoner serve up to one year of
4 the sentence imposed by the court that was not served due to
5 the accumulation of good conduct credit.
6 (d) If a lawsuit is filed by a prisoner in an Illinois
7 or federal court against the State, the Department of
8 Corrections, or the Prisoner Review Board, or against any of
9 their officers or employees, and the court makes a specific
10 finding that a pleading, motion, or other paper filed by the
11 prisoner is frivolous, the Department of Corrections shall
12 conduct a hearing to revoke up to 180 days of good conduct
13 credit by bringing charges against the prisoner sought to be
14 deprived of the good conduct credits before the Prisoner
15 Review Board as provided in subparagraph (a)(8) of Section
16 3-3-2 of this Code. If the prisoner has not accumulated 180
17 days of good conduct credit at the time of the finding, then
18 the Prisoner Review Board may revoke all good conduct credit
19 accumulated by the prisoner.
20 For purposes of this subsection (d):
21 (1) "Frivolous" means that a pleading, motion, or
22 other filing which purports to be a legal document filed
23 by a prisoner in his or her lawsuit meets any or all of
24 the following criteria:
25 (A) it lacks an arguable basis either in law
26 or in fact;
27 (B) it is being presented for any improper
28 purpose, such as to harass or to cause unnecessary
29 delay or needless increase in the cost of
30 litigation;
31 (C) the claims, defenses, and other legal
32 contentions therein are not warranted by existing
33 law or by a nonfrivolous argument for the extension,
34 modification, or reversal of existing law or the
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1 establishment of new law;
2 (D) the allegations and other factual
3 contentions do not have evidentiary support or, if
4 specifically so identified, are not likely to have
5 evidentiary support after a reasonable opportunity
6 for further investigation or discovery; or
7 (E) the denials of factual contentions are not
8 warranted on the evidence, or if specifically so
9 identified, are not reasonably based on a lack of
10 information or belief.
11 (2) "Lawsuit" means a petition for post conviction
12 relief under Article 122 of the Code of Criminal
13 Procedure of 1963, a motion pursuant to Section 116-3 of
14 the Code of Criminal Procedure of 1963, a habeas corpus
15 action under Article X of the Code of Civil Procedure or
16 under federal law (28 U.S.C. 2254), a petition for claim
17 under the Court of Claims Act or an action under the
18 federal Civil Rights Act (42 U.S.C. 1983).
19 (Source: P.A. 89-404, eff. 8-20-95; 89-428, eff. 12-13-95;
20 89-462, eff. 5-29-96; 89-656, eff. 1-1-97; 90-141, eff.
21 1-1-98; 90-505, eff. 8-19-97; revised 10-7-97.)
22 (730 ILCS 5/3-6-3.1)
23 Sec. 3-6-3.1. Truth-in-Sentencing Commission.
24 (a) Legislative findings. The General Assembly finds
25 that violent crime continues to be a severe problem in
26 Illinois. Criminals sentenced to prison for violating the
27 laws of Illinois are often released after serving a fraction
28 of their sentence under Illinois' early release statute. The
29 early release of criminals from prison after they are
30 sentenced to longer terms in court misleads the public as
31 well as victims of crime. Many of these criminals return to
32 a life of crime immediately upon their early release from
33 prison, committing violent acts including murder and rape.
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1 Public safety, as well as the integrity of the justice
2 system, demands that criminals serve the sentences handed
3 down by the courts, and that a Truth-in-Sentencing Commission
4 be established to effectuate this goal.
5 (b) Truth-in-Sentencing Commission. There is created
6 the Illinois Truth-in-Sentencing Commission, to consist of 13
7 members as follows:
8 (1) Three members appointed by the Governor, one of
9 whom shall be a member of the faculty of an accredited
10 Illinois law school;
11 (2) The Attorney General or his or her designee;
12 (3) One member appointed by the President of the
13 Senate;
14 (4) One member appointed by the Minority Leader of
15 the Senate;
16 (5) One member appointed by the Speaker of the
17 House of Representatives;
18 (6) One member appointed by the Minority Leader of
19 the House of Representatives;
20 (7) The Director of the Illinois Department of
21 Corrections or his or her designee;
22 (8) The State's Attorney of Cook County or his or
23 her designee;
24 (9) The Executive Director of the Illinois Criminal
25 Justice Information Authority or his or her designee;
26 (10) The President of the Illinois State's
27 Attorneys Association; and
28 (11) The President of the Illinois Association of
29 Chiefs of Police.
30 All appointments shall be filed with the Secretary of
31 State by the appointing authority.
32 (c) Duties of the Commission. This Commission shall:
33 (1) develop and monitor legislation facilitating
34 the implementation of Truth-in-Sentencing laws which
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1 require criminals to serve at least 85% of their
2 court-imposed sentences, using any information and
3 recommendations available regarding those laws;
4 (2) review the funding provisions of the Violent
5 Crime Control Act of 1994, and any subsequent federal
6 legislation of a comparable nature, to comment in
7 appropriate federal rulemaking and legislative processes
8 on State law enforcement, correctional, and fiscal
9 concerns, and, upon the finalization of federal
10 requirements, to determine what is required to obtain
11 maximum federal funding to assist the State in
12 implementing Truth-in-Sentencing laws; and
13 (3) study the possibility of changing sentences in
14 order to more accurately reflect the actual time spent in
15 prison, while preserving the system's ability to punish
16 criminals justly and equitably.
17 (d) Organization. The Commission shall elect a Chair
18 and Vice-Chair from among its members at its first meeting.
19 The members of the Commission shall serve without
20 compensation but shall be reimbursed for reasonable expenses
21 incurred in the course of performing their duties.
22 (e) Intergovernmental cooperation. The Illinois
23 Criminal Justice Information Authority shall assist the
24 Commission with any and all research and drafting necessary
25 to fulfill its duties. The Illinois Department of
26 Corrections shall give any reasonable assistance to the
27 Commission, including making available all pertinent
28 statistical information at the Department's disposal.
29 (f) The Commission shall present a full report and a
30 draft of appropriate Truth-in-Sentencing legislation to the
31 Governor and the General Assembly no later than September 30,
32 1998. Truth-in-Sentencing Commission.
33 (a) Legislative findings. The General Assembly finds
34 that violent crime continues to be a severe problem in
-77- LRB9011691RCksam
1 Illinois. Criminals sentenced to prison for violating the
2 laws of Illinois are often released after serving a fraction
3 of their sentence under Illinois' early release statute. The
4 early release of criminals from prison after they are
5 sentenced to longer terms in court misleads the public as
6 well as victims of crime. Many of these criminals return to
7 a life of crime immediately upon their early release from
8 prison, committing violent acts including murder and rape.
9 Public safety, as well as the integrity of the justice
10 system, demands that criminals serve the sentences handed
11 down by the courts, and that a Truth-in-Sentencing Commission
12 be established to effectuate this goal.
13 (b) Truth-in-Sentencing Commission. There is created
14 the Illinois Truth-in-Sentencing Commission, to consist of 13
15 members as follows:
16 (1) Three members appointed by the Governor, one of
17 whom shall be a member of the faculty of an accredited
18 Illinois law school;
19 (2) The Attorney General or his or her designee;
20 (3) One member appointed by the President of the
21 Senate;
22 (4) One member appointed by the Minority Leader of
23 the Senate;
24 (5) One member appointed by the Speaker of the
25 House of Representatives;
26 (6) One member appointed by the Minority Leader of
27 the House of Representatives;
28 (7) The Director of the Illinois Department of
29 Corrections or his or her designee;
30 (8) The State's Attorney of Cook County or his or
31 her designee;
32 (9) The Executive Director of the Illinois Criminal
33 Justice Information Authority or his or her designee;
34 (10) The President of the Illinois State's
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1 Attorneys Association; and
2 (11) The President of the Illinois Association of
3 Chiefs of Police.
4 All appointments shall be filed with the Secretary of
5 State by the appointing authority.
6 (c) Duties of the Commission. This Commission shall:
7 (1) develop and monitor legislation facilitating
8 the implementation of Truth-in-Sentencing laws which
9 require criminals to serve at least 85% of their
10 court-imposed sentences, using any information and
11 recommendations available regarding those laws;
12 (2) review the funding provisions of the Violent
13 Crime Control Act of 1994, and any subsequent federal
14 legislation of a comparable nature, to comment in
15 appropriate federal rulemaking and legislative processes
16 on State law enforcement, correctional, and fiscal
17 concerns, and, upon the finalization of federal
18 requirements, to determine what is required to obtain
19 maximum federal funding to assist the State in
20 implementing Truth-in-Sentencing laws; and
21 (3) study the possibility of changing sentences in
22 order to more accurately reflect the actual time spent in
23 prison, while preserving the system's ability to punish
24 criminals justly and equitably.
25 (d) Organization. The Commission shall elect a Chair
26 and Vice-Chair from among its members at its first meeting.
27 The members of the Commission shall serve without
28 compensation but shall be reimbursed for reasonable expenses
29 incurred in the course of performing their duties.
30 (e) Intergovernmental cooperation. The Illinois
31 Criminal Justice Information Authority shall assist the
32 Commission with any and all research and drafting necessary
33 to fulfill its duties. The Illinois Department of
34 Corrections shall give any reasonable assistance to the
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1 Commission, including making available all pertinent
2 statistical information at the Department's disposal.
3 (f) The Commission shall present a full report and a
4 draft of appropriate Truth-in-Sentencing legislation to the
5 Governor and the General Assembly no later than March 1,
6 1997.
7 (Source: P.A. 89-404, eff. 8-20-95; 89-428, eff. 12-13-95;
8 89-689, eff. 12-31-96.)
9 (730 ILCS 5/5-1-11) (from Ch. 38, par. 1005-1-11)
10 Sec. 5-1-11. Insanity.
11 "Insanity" means the lack of a substantial capacity to
12 appreciate the criminality of one's conduct as a result of
13 mental disorder or mental defect.
14 Insanity.
15 "Insanity" means the lack of a substantial capacity to
16 appreciate the criminality of one's conduct as a result of
17 mental disorder or mental defect.
18 (Source: P.A. 89-404, eff. 8-20-95.)
19 (730 ILCS 5/5-2-4) (from Ch. 38, par. 1005-2-4)
20 Sec. 5-2-4. Proceedings after Acquittal by Reason of
21 Insanity.
22 (a) After a finding or verdict of not guilty by reason
23 of insanity under Sections 104-25, 115-3 or 115-4 of The Code
24 of Criminal Procedure of 1963, the defendant shall be ordered
25 to the Department of Human Services for an evaluation as to
26 whether he is subject to involuntary admission or in need of
27 mental health services. The order shall specify whether the
28 evaluation shall be conducted on an inpatient or outpatient
29 basis. If the evaluation is to be conducted on an inpatient
30 basis, the defendant shall be placed in a secure setting
31 unless the Court determines that there are compelling reasons
32 why such placement is not necessary. After the evaluation and
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1 during the period of time required to determine the
2 appropriate placement, the defendant shall remain in jail.
3 Upon completion of the placement process the sheriff shall
4 be notified and shall transport the defendant to the
5 designated facility.
6 The Department shall provide the Court with a report of
7 its evaluation within 30 days of the date of this order. The
8 Court shall hold a hearing as provided under the Mental
9 Health and Developmental Disabilities Code to determine if
10 the individual is: (a) subject to involuntary admission; (b)
11 in need of mental health services on an inpatient basis; (c)
12 in need of mental health services on an outpatient basis; (d)
13 a person not in need of mental health services. The Court
14 shall enter its findings.
15 If the defendant is found to be subject to involuntary
16 admission or in need of mental health services on an
17 inpatient care basis, the Court shall order the defendant to
18 the Department of Human Services. The defendant shall be
19 placed in a secure setting unless the Court determines that
20 there are compelling reasons why such placement is not
21 necessary. Such defendants placed in a secure setting shall
22 not be permitted outside the facility's housing unit unless
23 escorted or accompanied by personnel of the Department of
24 Human Services or with the prior approval of the Court for
25 unsupervised on-grounds privileges as provided herein. Any
26 defendant placed in a secure setting pursuant to this
27 Section, transported to court hearings or other necessary
28 appointments off facility grounds by personnel of the
29 Department of Human Services, may be placed in security
30 devices or otherwise secured during the period of
31 transportation to assure secure transport of the defendant
32 and the safety of Department of Human Services personnel and
33 others. These security measures shall not constitute
34 restraint as defined in the Mental Health and Developmental
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1 Disabilities Code. If the defendant is found to be in need
2 of mental health services, but not on an inpatient care
3 basis, the Court shall conditionally release the defendant,
4 under such conditions as set forth in this Section as will
5 reasonably assure the defendant's satisfactory progress in
6 treatment or rehabilitation and the safety of the defendant
7 or others. If the Court finds the person not in need of
8 mental health services, then the Court shall order the
9 defendant discharged from custody.
10 (1) Definitions: For the purposes of this Section:
11 (A) "Subject to involuntary admission" means: a
12 defendant has been found not guilty by reason of
13 insanity; and
14 (i) who is mentally ill and who because of his
15 mental illness is reasonably expected to inflict
16 serious physical harm upon himself or another in the
17 near future; or
18 (ii) who is mentally ill and who because of
19 his illness is unable to provide for his basic
20 physical needs so as to guard himself from serious
21 harm.
22 (B) "In need of mental health services on an
23 inpatient basis" means: a defendant who has been found
24 not guilty by reason of insanity who is not subject to
25 involuntary admission but who is reasonably expected to
26 inflict serious physical harm upon himself or another and
27 who would benefit from inpatient care or is in need of
28 inpatient care.
29 (C) "In need of mental health services on an
30 outpatient basis" means: a defendant who has been found
31 not guilty by reason of insanity who is not subject to
32 involuntary admission or in need of mental health
33 services on an inpatient basis, but is in need of
34 outpatient care, drug and/or alcohol rehabilitation
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1 programs, community adjustment programs, individual,
2 group, or family therapy, or chemotherapy.
3 (D) "Conditional Release" means: the release from
4 either the custody of the Department of Human Services or
5 the custody of the Court of a person who has been found
6 not guilty by reason of insanity under such conditions as
7 the court may impose which reasonably assure the
8 defendant's satisfactory progress in treatment or
9 habilitation and the safety of the defendant and others.
10 The Court shall consider such terms and conditions which
11 may include, but need not be limited to, outpatient care,
12 alcoholic and drug rehabilitation programs, community
13 adjustment programs, individual, group, family, and
14 chemotherapy, periodic checks with the legal authorities
15 and/or the Department of Human Services. The person or
16 facility rendering the outpatient care shall be required
17 to periodically report to the Court on the progress of
18 the defendant. Such conditional release shall be for a
19 period of five years, unless the defendant, the person or
20 facility rendering the treatment, therapy, program or
21 outpatient care, or the State's Attorney petitions the
22 Court for an extension of the conditional release period
23 for an additional three years. Upon receipt of such a
24 petition, the Court shall hold a hearing consistent with
25 the provisions of this paragraph (a) and paragraph (f) of
26 this Section, shall determine whether the defendant
27 should continue to be subject to the terms of conditional
28 release, and shall enter an order either extending the
29 defendant's period of conditional release for a single
30 additional three year period or discharging the
31 defendant. In no event shall the defendant's period of
32 conditional release exceed eight years. These provisions
33 for extension of conditional release shall only apply to
34 defendants conditionally released on or after July 1,
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1 1979. However the extension provisions of Public Act
2 83-1449 apply only to defendants charged with a forcible
3 felony.
4 (E) "Facility director" means the chief officer of
5 a mental health or developmental disabilities facility or
6 his or her designee or the supervisor of a program of
7 treatment or habilitation or his or her designee.
8 "Designee" may include a physician, clinical
9 psychologist, social worker, or nurse.
10 (b) If the Court finds the defendant subject to
11 involuntary admission or in need of mental health services on
12 an inpatient basis, the admission, detention, care, treatment
13 or habilitation, review proceedings, and discharge of the
14 defendant after such order shall be under the Mental Health
15 and Developmental Disabilities Code, except that the initial
16 order for admission of a defendant acquitted of a felony by
17 reason of insanity shall be for an indefinite period of time.
18 Such period of commitment shall not exceed the maximum length
19 of time that the defendant would have been required to serve,
20 less credit for good behavior, before becoming eligible for
21 release had he been convicted of and received the maximum
22 sentence for the most serious crime for which he has been
23 acquitted by reason of insanity. The Court shall determine
24 the maximum period of commitment by an appropriate order.
25 During this period of time, the defendant shall not be
26 permitted to be in the community in any manner, including but
27 not limited to off-grounds privileges, with or without escort
28 by personnel of the Department of Human Services,
29 unsupervised on-grounds privileges, discharge or conditional
30 or temporary release, except by a plan as provided in this
31 Section. In no event shall a defendant's continued
32 unauthorized absence be a basis for discharge. Not more than
33 30 days after admission and every 60 days thereafter so long
34 as the initial order remains in effect, the facility director
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1 shall file a treatment plan with the court. Such plan shall
2 include an evaluation of the defendant's progress and the
3 extent to which he is benefiting from treatment. Such plan
4 may also include unsupervised on-grounds privileges,
5 off-grounds privileges (with or without escort by personnel
6 of the Department of Human Services), home visits and
7 participation in work programs, but only where such
8 privileges have been approved by specific court order, which
9 order may include such conditions on the defendant as the
10 Court may deem appropriate and necessary to reasonably assure
11 the defendant's satisfactory progress in treatment and the
12 safety of the defendant and others.
13 (c) Every defendant acquitted of a felony by reason of
14 insanity and subsequently found to be subject to involuntary
15 admission or in need of mental health services shall be
16 represented by counsel in all proceedings under this Section
17 and under the Mental Health and Developmental Disabilities
18 Code.
19 (1) The court shall appoint as counsel the public
20 defender or an attorney licensed by this State.
21 (2) Upon filing with the court of a verified
22 statement of legal services rendered by the private
23 attorney appointed pursuant to paragraph (1) of this
24 subsection, the court shall determine a reasonable fee
25 for such services. If the defendant is unable to pay the
26 fee, the court shall enter an order upon the State to pay
27 the entire fee or such amount as the defendant is unable
28 to pay from funds appropriated by the General Assembly
29 for that purpose.
30 (d) When the facility director determines that:
31 (1) the defendant is no longer subject to
32 involuntary admission or in need of mental health
33 services on an inpatient basis; and
34 (2) the defendant may be conditionally released
-85- LRB9011691RCksam
1 because he or she is still in need of mental health
2 services or that the defendant may be discharged as not
3 in need of any mental health services; or
4 (3) the defendant no longer requires placement in a
5 secure setting;
6 the facility director shall give written notice to the Court,
7 State's Attorney and defense attorney. Such notice shall set
8 forth in detail the basis for the recommendation of the
9 facility director, and specify clearly the recommendations,
10 if any, of the facility director, concerning conditional
11 release. Within 30 days of the notification by the facility
12 director, the Court shall set a hearing and make a finding as
13 to whether the defendant is:
14 (i) subject to involuntary admission; or
15 (ii) in need of mental health services in the form
16 of inpatient care; or
17 (iii) in need of mental health services but not
18 subject to involuntary admission or inpatient care; or
19 (iv) no longer in need of mental health services;
20 or
21 (v) no longer requires placement in a secure
22 setting.
23 Upon finding by the Court, the Court shall enter its
24 findings and such appropriate order as provided in subsection
25 (a) of this Section.
26 (e) A defendant admitted pursuant to this Section, or
27 any person on his behalf, may file a petition for transfer
28 to a non-secure setting within the Department of Human
29 Services or discharge or conditional release under the
30 standards of this Section in the court which rendered the
31 verdict. Upon receipt of a petition for transfer to a
32 non-secure setting or discharge or conditional release, the
33 court shall set a hearing to be held within 120 days.
34 Thereafter, no new petition may be filed for 120 days without
-86- LRB9011691RCksam
1 leave of the court.
2 (f) The court shall direct that notice of the time and
3 place of the hearing be served upon the defendant, the
4 facility director, the State's Attorney, and the defendant's
5 attorney. If requested by either the State or the defense or
6 if the Court feels it is appropriate, an impartial
7 examination of the defendant by a psychiatrist or clinical
8 psychologist as defined in Section 1-103 of the Mental Health
9 and Developmental Disabilities Code who is not in the employ
10 of the Department of Human Services shall be ordered, and the
11 report considered at the time of the hearing.
12 (g) The findings of the court shall be established by
13 clear and convincing evidence. The burden of proof and the
14 burden of going forth with the evidence rest with the State
15 when a hearing is held to review the determination of the
16 facility director that the defendant should be transferred to
17 a non-secure setting, discharged or conditionally released.
18 The burden of proof and the burden of going forth with the
19 evidence rest on the defendant when a hearing is held to
20 review a petition filed by or on behalf of such defendant.
21 The evidence shall be presented in open court with the right
22 of confrontation and cross-examination.
23 (h) If the court finds that the defendant is no longer
24 in need of mental health services it shall order the facility
25 director to discharge the defendant. If the Court finds that
26 the defendant is in need of mental health services, and no
27 longer in need of inpatient care, it shall order the facility
28 director to release the defendant under such conditions as
29 the Court deems appropriate and as provided by this Section.
30 Such conditional release shall be imposed for a period of
31 five years and shall be subject to later modification by the
32 court as provided by this Section. If the court finds that
33 the defendant is subject to involuntary admission or in need
34 of mental health services on an inpatient basis, it shall
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1 order the facility director not to discharge or release the
2 defendant in accordance with paragraph (b) of this Section.
3 (i) If within the period of the defendant's conditional
4 release, the court determines, after hearing evidence, that
5 the defendant has not fulfilled the conditions of release,
6 the court shall order a hearing to be held consistent with
7 the provisions of paragraph (f) and (g) of this Section. At
8 such hearing, if the court finds that the defendant is
9 subject to involuntary admission or in need of mental health
10 services on an inpatient basis, it shall enter an order
11 remanding him or her to the Department of Human Services or
12 other facility. If the defendant is remanded to the
13 Department of Human Services, he or she shall be placed in a
14 secure setting unless the court determines that there are
15 compelling reasons that such placement is not necessary. If
16 the court finds that the defendant continues to be in need
17 of mental health services but not on an inpatient basis, it
18 may modify the conditions of the original release in order to
19 reasonably assure the defendant's satisfactory progress in
20 treatment and his or her safety and the safety of others. In
21 no event shall such conditional release be longer than eight
22 years. Nothing in this Section shall limit a court's contempt
23 powers or any other powers of a court.
24 (j) An order of admission under this Section does not
25 affect the remedy of habeas corpus.
26 (k) In the event of a conflict between this Section and
27 the Mental Health and Developmental Disabilities Code or the
28 Mental Health and Developmental Disabilities Confidentiality
29 Act, the provisions of this Section shall govern.
30 (l) This amendatory Act shall apply to all persons who
31 have been found not guilty by reason of insanity and who are
32 presently committed to the Department of Mental Health and
33 Developmental Disabilities (now the Department of Human
34 Services).
-88- LRB9011691RCksam
1 (m) The Clerk of the court shall, after the entry of an
2 order of transfer to a non-secure setting of the Department
3 of Human Services or discharge or conditional release,
4 transmit a certified copy of the order to the Department of
5 Human Services, and the sheriff of the county from which the
6 defendant was admitted. In cases where the arrest of the
7 defendant or the commission of the offense took place in any
8 municipality with a population of more than 25,000 persons,
9 the Clerk of the court shall also transmit a certified copy
10 of the order of discharge or conditional release to the
11 proper law enforcement agency for said municipality provided
12 the municipality has requested such notice in writing.
13 Proceedings after Acquittal by Reason of Insanity.
14 (a) After a finding or verdict of not guilty by reason
15 of insanity under Sections 104-25, 115-3 or 115-4 of The Code
16 of Criminal Procedure of 1963, the defendant shall be ordered
17 to the Department of Human Services for an evaluation as to
18 whether he is subject to involuntary admission or in need of
19 mental health services. The order shall specify whether the
20 evaluation shall be conducted on an inpatient or outpatient
21 basis. If the evaluation is to be conducted on an inpatient
22 basis, the defendant shall be placed in a secure setting
23 unless the Court determines that there are compelling reasons
24 why such placement is not necessary. After the evaluation and
25 during the period of time required to determine the
26 appropriate placement, the defendant shall remain in jail.
27 Upon completion of the placement process the sheriff shall
28 be notified and shall transport the defendant to the
29 designated facility.
30 The Department shall provide the Court with a report of
31 its evaluation within 30 days of the date of this order. The
32 Court shall hold a hearing as provided under the Mental
33 Health and Developmental Disabilities Code to determine if
34 the individual is: (a) subject to involuntary admission; (b)
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1 in need of mental health services on an inpatient basis; (c)
2 in need of mental health services on an outpatient basis; (d)
3 a person not in need of mental health services. The Court
4 shall enter its findings.
5 If the defendant is found to be subject to involuntary
6 admission or in need of mental health services on an
7 inpatient care basis, the Court shall order the defendant to
8 the Department of Human Services. The defendant shall be
9 placed in a secure setting unless the Court determines that
10 there are compelling reasons why such placement is not
11 necessary. Such defendants placed in a secure setting shall
12 not be permitted outside the facility's housing unit unless
13 escorted or accompanied by personnel of the Department of
14 Human Services or with the prior approval of the Court for
15 unsupervised on-grounds privileges as provided herein. Any
16 defendant placed in a secure setting pursuant to this
17 Section, transported to court hearings or other necessary
18 appointments off facility grounds by personnel of the
19 Department of Human Services, may be placed in security
20 devices or otherwise secured during the period of
21 transportation to assure secure transport of the defendant
22 and the safety of Department of Human Services personnel and
23 others. These security measures shall not constitute
24 restraint as defined in the Mental Health and Developmental
25 Disabilities Code. If the defendant is found to be in need
26 of mental health services, but not on an inpatient care
27 basis, the Court shall conditionally release the defendant,
28 under such conditions as set forth in this Section as will
29 reasonably assure the defendant's satisfactory progress in
30 treatment or rehabilitation and the safety of the defendant
31 or others. If the Court finds the person not in need of
32 mental health services, then the Court shall order the
33 defendant discharged from custody.
34 (1) Definitions: For the purposes of this Section:
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1 (A) "Subject to involuntary admission" means: A
2 defendant has been found not guilty by reason of
3 insanity; and
4 (i) who is mentally ill and who because of his
5 mental illness is reasonably expected to inflict
6 serious physical harm upon himself or another in the
7 near future; or
8 (ii) who is mentally ill and who because of
9 his illness is unable to provide for his basic
10 physical needs so as to guard himself from serious
11 harm.
12 (B) "In need of mental health services on an
13 inpatient basis" means: a defendant who has been found
14 not guilty by reason of insanity who is not subject to
15 involuntary admission but who is reasonably expected to
16 inflict serious physical harm upon himself or another and
17 who would benefit from inpatient care or is in need of
18 inpatient care.
19 (C) "In need of mental health services on an
20 outpatient basis" means: a defendant who has been found
21 not guilty by reason of insanity who is not subject to
22 involuntary admission or in need of mental health
23 services on an inpatient basis, but is in need of
24 outpatient care, drug and/or alcohol rehabilitation
25 programs, community adjustment programs, individual,
26 group, or family therapy, or chemotherapy.
27 (D) "Conditional Release" means: the release from
28 either the custody of the Department of Human Services or
29 the custody of the Court of a person who has been found
30 not guilty by reason of insanity under such conditions as
31 the court may impose which reasonably assure the
32 defendant's satisfactory progress in treatment or
33 habilitation and the safety of the defendant and others.
34 The Court shall consider such terms and conditions which
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1 may include, but need not be limited to, outpatient care,
2 alcoholic and drug rehabilitation programs, community
3 adjustment programs, individual, group, family, and
4 chemotherapy, periodic checks with the legal authorities
5 and/or the Department of Human Services. The person or
6 facility rendering the outpatient care shall be required
7 to periodically report to the Court on the progress of
8 the Defendant. Such conditional release shall be for a
9 period of five years, unless the defendant, the person or
10 facility rendering the treatment, therapy, program or
11 outpatient care, or the State's attorney petitions the
12 Court for an extension of the conditional release period
13 for an additional three years. Upon receipt of such a
14 petition, the Court shall hold a hearing consistent with
15 the provisions of this paragraph (a) and paragraph (f) of
16 this Section, shall determine whether the defendant
17 should continue to be subject to the terms of conditional
18 release, and shall enter an order either extending the
19 defendant's period of conditional release for a single
20 additional three year period or discharging the
21 defendant. In no event shall the defendant's period of
22 conditional release exceed eight years. These provisions
23 for extension of conditional release shall only apply to
24 defendants conditionally released on or after July 1,
25 1979. However the extension provisions of this amendatory
26 Act of 1984 apply only to defendants charged with a
27 forcible felony.
28 (E) "Facility director" means the chief officer of
29 a mental health or developmental disabilities facility or
30 his or her designee or the supervisor of a program of
31 treatment or habilitation or his or her designee.
32 "Designee" may include a physician, clinical
33 psychologist, social worker, or nurse.
34 (b) If the Court finds the defendant subject to
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1 involuntary admission or in need of mental health services on
2 an inpatient basis, the admission, detention, care, treatment
3 or habilitation, review proceedings, and discharge of the
4 defendant after such order shall be under the Mental Health
5 and Developmental Disabilities Code, except that the initial
6 order for admission of a defendant acquitted of a felony by
7 reason of insanity shall be for an indefinite period of time.
8 Such period of commitment shall not exceed the maximum length
9 of time that the defendant would have been required to serve,
10 less credit for good behavior, before becoming eligible for
11 release had he been convicted of and received the maximum
12 sentence for the most serious crime for which he has been
13 acquitted by reason of insanity. The Court shall determine
14 the maximum period of commitment by an appropriate order.
15 During this period of time, the defendant shall not be
16 permitted to be in the community in any manner, including but
17 not limited to off-grounds privileges, with or without escort
18 by personnel of the Department of Human Services,
19 unsupervised on-grounds privileges, discharge or conditional
20 or temporary release, except by a plan as provided in this
21 Section. In no event shall a defendant's continued
22 unauthorized absence be a basis for discharge. Not more than
23 30 days after admission and every 60 days thereafter so long
24 as the initial order remains in effect, the facility director
25 shall file a treatment plan with the court. Such plan shall
26 include an evaluation of the defendant's progress and the
27 extent to which he is benefiting from treatment. Such plan
28 may also include unsupervised on-grounds privileges,
29 off-grounds privileges (with or without escort by personnel
30 of the Department of Human Services), home visits and
31 participation in work programs, but only where such
32 privileges have been approved by specific court order, which
33 order may include such conditions on the defendant as the
34 Court may deem appropriate and necessary to reasonably assure
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1 the defendant's satisfactory progress in treatment and the
2 safety of the defendant and others.
3 (c) Every defendant acquitted of a felony by reason of
4 insanity and subsequently found to be subject to involuntary
5 admission or in need of mental health services shall be
6 represented by counsel in all proceedings under this Section
7 and under the Mental Health and Developmental Disabilities
8 Code.
9 (1) The court shall appoint as counsel the public
10 defender or an attorney licensed by this State.
11 (2) Upon filing with the court of a verified
12 statement of legal services rendered by the private
13 attorney appointed pursuant to paragraph (1) of this
14 subsection, the court shall determine a reasonable fee
15 for such services. If the defendant is unable to pay the
16 fee, the court shall enter an order upon the State to pay
17 the entire fee or such amount as the defendant is unable
18 to pay from funds appropriated by the General Assembly
19 for that purpose.
20 (d) When the facility director determines that:
21 (1) the defendant is no longer subject to
22 involuntary admission or in need of mental health
23 services on an inpatient basis; and
24 (2) the defendant may be conditionally released
25 because he or she is still in need of mental health
26 services or that the defendant may be discharged as not
27 in need of any mental health services; or
28 (3) the defendant no longer requires placement in a
29 secure setting;
30 the facility director shall give written notice to the Court,
31 State's Attorney and defense attorney. Such notice shall set
32 forth in detail the basis for the recommendation of the
33 facility director, and specify clearly the recommendations,
34 if any, of the facility director, concerning conditional
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1 release. Within 30 days of the notification by the facility
2 director, the Court shall set a hearing and make a finding as
3 to whether the defendant is:
4 (i) subject to involuntary admission; or
5 (ii) in need of mental health services in the form
6 of inpatient care; or
7 (iii) in need of mental health services but not
8 subject to involuntary admission or inpatient care; or
9 (iv) no longer in need of mental health services;
10 or
11 (v) no longer requires placement in a secure
12 setting.
13 Upon finding by the Court, the Court shall enter its
14 findings and such appropriate order as provided in subsection
15 (a) of this Section.
16 (e) A defendant admitted pursuant to this Section, or
17 any person on his behalf, may file a petition for transfer
18 to a non-secure setting within the Department of Human
19 Services or discharge or conditional release under the
20 standards of this Section in the court which rendered the
21 verdict. Upon receipt of a petition for transfer to a
22 non-secure setting or discharge or conditional release, the
23 court shall set a hearing to be held within 120 days.
24 Thereafter, no new petition may be filed for 120 days without
25 leave of the court.
26 (f) The court shall direct that notice of the time and
27 place of the hearing be served upon the defendant, the
28 facility director, the State's Attorney, and the defendant's
29 attorney. If requested by either the State or the defense or
30 if the Court feels it is appropriate, an impartial
31 examination of the defendant by a psychiatrist or clinical
32 psychologist as defined in Section 1-103 of the Mental Health
33 and Developmental Disabilities Code who is not in the employ
34 of the Department of Human Services shall be ordered, and the
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1 report considered at the time of the hearing.
2 (g) The findings of the court shall be established by
3 clear and convincing evidence. The burden of proof and the
4 burden of going forth with the evidence rest with the State
5 when a hearing is held to review the determination of the
6 facility director that the defendant should be transferred to
7 a non-secure setting, discharged or conditionally released.
8 The burden of proof and the burden of going forth with the
9 evidence rest on the defendant when a hearing is held to
10 review a petition filed by or on behalf of such defendant.
11 The evidence shall be presented in open court with the right
12 of confrontation and cross-examination.
13 (h) If the court finds that the defendant is no longer
14 in need of mental health services it shall order the facility
15 director to discharge the defendant. If the Court finds that
16 the defendant is in need of mental health services, and no
17 longer in need of inpatient care, it shall order the facility
18 director to release the defendant under such conditions as
19 the Court deems appropriate and as provided by this Section.
20 Such conditional release shall be imposed for a period of
21 five years and shall be subject to later modification by the
22 court as provided by this Section. If the court finds that
23 the defendant is subject to involuntary admission or in need
24 of mental health services on an inpatient basis, it shall
25 order the facility director not to discharge or release the
26 defendant in accordance with paragraph (b) of this Section.
27 (i) If within the period of the defendant's conditional
28 release, the court determines, after hearing evidence, that
29 the defendant has not fulfilled the conditions of release,
30 the court shall order a hearing to be held consistent with
31 the provisions of paragraph (f) and (g) of this section. At
32 such hearing, if the court finds that the defendant is
33 subject to involuntary admission or in need of mental health
34 services on an inpatient basis, it shall enter an order
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1 remanding him or her to the Department of Human Services or
2 other facility. If the defendant is remanded to the
3 Department of Human Services, he or she shall be placed in a
4 secure setting unless the court determines that there are
5 compelling reasons that such placement is not necessary. If
6 the court finds that the defendant continues to be in need
7 of mental health services but not on an inpatient basis, it
8 may modify the conditions of the original release in order to
9 reasonably assure the defendant's satisfactory progress in
10 treatment and his or her safety and the safety of others. In
11 no event shall such conditional release be longer than eight
12 years. Nothing in this Section shall limit a court's contempt
13 powers or any other powers of a court.
14 (j) An order of admission under this Section does not
15 affect the remedy of habeas corpus.
16 (k) In the event of a conflict between this Section and
17 the Mental Health and Developmental Disabilities Code or the
18 Mental Health and Developmental Disabilities Confidentiality
19 Act, the provisions of this Section shall govern.
20 (l) This amendatory Act shall apply to all persons who
21 have been found not guilty by reason of insanity and who are
22 presently committed to the Department of Mental Health and
23 Developmental Disabilities (now the Department of Human
24 Services).
25 (m) The Clerk of the court shall, after the entry of an
26 order of transfer to a non-secure setting of the Department
27 of Human Services or discharge or conditional release,
28 transmit a certified copy of the order to the Department of
29 Human Services, and the sheriff of the county from which the
30 defendant was admitted. In cases where the arrest of the
31 defendant or the commission of the offense took place in any
32 municipality with a population of more than 25,000 persons,
33 the Clerk of the court shall also transmit a certified copy
34 of the order of discharge or conditional release to the
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1 proper law enforcement agency for said municipality provided
2 the municipality has requested such notice in writing.
3 (Source: P.A. 89-404, eff. 8-20-95; 89-507, eff. 7-1-97;
4 90-105, eff. 7-11-97.)
5 (730 ILCS 5/5-4-1) (from Ch. 38, par. 1005-4-1)
6 Sec. 5-4-1. Sentencing Hearing.
7 (a) Except when the death penalty is sought under
8 hearing procedures otherwise specified, after a determination
9 of guilt, a hearing shall be held to impose the sentence.
10 However, prior to the imposition of sentence on an individual
11 being sentenced for an offense based upon a charge for a
12 violation of Section 11-501 of the Illinois Vehicle Code or a
13 similar provision of a local ordinance, the individual must
14 undergo a professional evaluation to determine if an alcohol
15 or other drug abuse problem exists and the extent of such a
16 problem. Programs conducting these evaluations shall be
17 licensed by the Department of Human Services. However, if
18 the individual is not a resident of Illinois, the court may,
19 in its discretion, accept an evaluation from a program in the
20 state of such individual's residence. The court may in its
21 sentencing order approve an eligible defendant for placement
22 in a Department of Corrections impact incarceration program
23 as provided in Section 5-8-1.1. At the hearing the court
24 shall:
25 (1) consider the evidence, if any, received upon
26 the trial;
27 (2) consider any presentence reports;
28 (3) consider the financial impact of incarceration
29 based on the financial impact statement filed with the
30 clerk of the court by the Department of Corrections;
31 (4) consider evidence and information offered by
32 the parties in aggravation and mitigation;
33 (5) hear arguments as to sentencing alternatives;
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1 (6) afford the defendant the opportunity to make a
2 statement in his own behalf;
3 (7) afford the victim of a violent crime or a
4 violation of Section 11-501 of the Illinois Vehicle Code,
5 or a similar provision of a local ordinance, committed by
6 the defendant the opportunity to make a statement
7 concerning the impact on the victim and to offer evidence
8 in aggravation or mitigation; provided that the statement
9 and evidence offered in aggravation or mitigation must
10 first be prepared in writing in conjunction with the
11 State's Attorney before it may be presented orally at the
12 hearing. Any sworn testimony offered by the victim is
13 subject to the defendant's right to cross-examine. All
14 statements and evidence offered under this paragraph (7)
15 shall become part of the record of the court; and
16 (8) in cases of reckless homicide afford the
17 victim's spouse, guardians, parents or other immediate
18 family members an opportunity to make oral statements.
19 (b) All sentences shall be imposed by the judge based
20 upon his independent assessment of the elements specified
21 above and any agreement as to sentence reached by the
22 parties. The judge who presided at the trial or the judge
23 who accepted the plea of guilty shall impose the sentence
24 unless he is no longer sitting as a judge in that court.
25 Where the judge does not impose sentence at the same time on
26 all defendants who are convicted as a result of being
27 involved in the same offense, the defendant or the State's
28 Attorney may advise the sentencing court of the disposition
29 of any other defendants who have been sentenced.
30 (c) In imposing a sentence for a violent crime or for an
31 offense of operating or being in physical control of a
32 vehicle while under the influence of alcohol, any other drug
33 or any combination thereof, or a similar provision of a local
34 ordinance, when such offense resulted in the personal injury
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1 to someone other than the defendant, the trial judge shall
2 specify on the record the particular evidence, information,
3 factors in mitigation and aggravation or other reasons that
4 led to his sentencing determination. The full verbatim record
5 of the sentencing hearing shall be filed with the clerk of
6 the court and shall be a public record.
7 (c-1) In imposing a sentence for the offense of
8 aggravated kidnapping for ransom, home invasion, armed
9 robbery, aggravated vehicular hijacking, aggravated discharge
10 of a firearm, or armed violence with a category I weapon or
11 category II weapon, the trial judge shall make a finding as
12 to whether the conduct leading to conviction for the offense
13 resulted in great bodily harm to a victim, and shall enter
14 that finding and the basis for that finding in the record.
15 (c-2) If the defendant is sentenced to prison, other
16 than when a sentence of natural life imprisonment or a
17 sentence of death is imposed, at the time the sentence is
18 imposed the judge shall state on the record in open court the
19 approximate period of time the defendant will serve in
20 custody according to the then current statutory rules and
21 regulations for early release found in Section 3-6-3 and
22 other related provisions of this Code. This statement is
23 intended solely to inform the public, has no legal effect on
24 the defendant's actual release, and may not be relied on by
25 the defendant on appeal.
26 The judge's statement, to be given after pronouncing the
27 sentence, other than when the sentence is imposed for one of
28 the offenses enumerated in paragraph (a)(3) of Section 3-6-3,
29 shall include the following:
30 "The purpose of this statement is to inform the public of
31 the actual period of time this defendant is likely to spend
32 in prison as a result of this sentence. The actual period of
33 prison time served is determined by the statutes of Illinois
34 as applied to this sentence by the Illinois Department of
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1 Corrections and the Illinois Prisoner Review Board. In this
2 case, assuming the defendant receives all of his or her good
3 conduct credit, the period of estimated actual custody is ...
4 years and ... months, less up to 180 days additional good
5 conduct credit for meritorious service. If the defendant,
6 because of his or her own misconduct or failure to comply
7 with the institutional regulations, does not receive those
8 credits, the actual time served in prison will be longer.
9 The defendant may also receive an additional one-half day
10 good conduct credit for each day of participation in
11 vocational, industry, substance abuse, and educational
12 programs as provided for by Illinois statute."
13 When the sentence is imposed for one of the offenses
14 enumerated in paragraph (a)(3) of Section 3-6-3, other than
15 when the sentence is imposed for one of the offenses
16 enumerated in paragraph (a)(2) of Section 3-6-3 committed on
17 or after the effective date of this amendatory Act of 1998,
18 the judge's statement, to be given after pronouncing the
19 sentence, shall include the following:
20 "The purpose of this statement is to inform the public of
21 the actual period of time this defendant is likely to spend
22 in prison as a result of this sentence. The actual period of
23 prison time served is determined by the statutes of Illinois
24 as applied to this sentence by the Illinois Department of
25 Corrections and the Illinois Prisoner Review Board. In this
26 case, assuming the defendant receives all of his or her good
27 conduct credit, the period of estimated actual custody is ...
28 years and ... months, less up to 90 days additional good
29 conduct credit for meritorious service. If the defendant,
30 because of his or her own misconduct or failure to comply
31 with the institutional regulations, does not receive those
32 credits, the actual time served in prison will be longer.
33 The defendant may also receive an additional one-half day
34 good conduct credit for each day of participation in
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1 vocational, industry, substance abuse, and educational
2 programs as provided for by Illinois statute."
3 When the sentence is imposed for one of the offenses
4 enumerated in paragraph (a)(2) of Section 3-6-3, other than
5 first degree murder, and the offense was committed on or
6 after the effective date of this amendatory Act of 1998, the
7 judge's statement, to be given after pronouncing the
8 sentence, shall include the following:
9 "The purpose of this statement is to inform the public of
10 the actual period of time this defendant is likely to spend
11 in prison as a result of this sentence. The actual period of
12 prison time served is determined by the statutes of Illinois
13 as applied to this sentence by the Illinois Department of
14 Corrections and the Illinois Prisoner Review Board. In this
15 case, the defendant is entitled to no more than 4 1/2 days of
16 good conduct credit for each month of his or her sentence of
17 imprisonment. Therefore, this defendant will serve at least
18 85% of his or her sentence. Assuming the defendant receives
19 4 1/2 days credit for each month of his or her sentence, the
20 period of estimated actual custody is ... years and ...
21 months. If the defendant, because of his or her own
22 misconduct or failure to comply with the institutional
23 regulations receives lesser credit, the actual time served in
24 prison will be longer."
25 When a sentence of imprisonment is imposed for first
26 degree murder and the offense was committed on or after the
27 effective date of this amendatory Act of 1998, the judge's
28 statement, to be given after pronouncing the sentence, shall
29 include the following:
30 "The purpose of this statement is to inform the public of
31 the actual period of time this defendant is likely to spend
32 in prison as a result of this sentence. The actual period of
33 prison time served is determined by the statutes of Illinois
34 as applied to this sentence by the Illinois Department of
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1 Corrections and the Illinois Prisoner Review Board. In this
2 case, the defendant is not entitled to good conduct credit.
3 Therefore, this defendant will serve 100% of his or her
4 sentence."
5 (d) When the defendant is committed to the Department of
6 Corrections, the State's Attorney shall and counsel for the
7 defendant may file a statement with the clerk of the court to
8 be transmitted to the department, agency or institution to
9 which the defendant is committed to furnish such department,
10 agency or institution with the facts and circumstances of the
11 offense for which the person was committed together with all
12 other factual information accessible to them in regard to the
13 person prior to his commitment relative to his habits,
14 associates, disposition and reputation and any other facts
15 and circumstances which may aid such department, agency or
16 institution during its custody of such person. The clerk
17 shall within 10 days after receiving any such statements
18 transmit a copy to such department, agency or institution and
19 a copy to the other party, provided, however, that this shall
20 not be cause for delay in conveying the person to the
21 department, agency or institution to which he has been
22 committed.
23 (e) The clerk of the court shall transmit to the
24 department, agency or institution, if any, to which the
25 defendant is committed, the following:
26 (1) the sentence imposed;
27 (2) any statement by the court of the basis for
28 imposing the sentence;
29 (3) any presentence reports;
30 (4) the number of days, if any, which the defendant
31 has been in custody and for which he is entitled to
32 credit against the sentence, which information shall be
33 provided to the clerk by the sheriff;
34 (4.1) any finding of great bodily harm made by the
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1 court with respect to an offense enumerated in subsection
2 (c-1);
3 (5) all statements filed under subsection (d) of
4 this Section;
5 (6) any medical or mental health records or
6 summaries of the defendant;
7 (7) the municipality where the arrest of the
8 offender or the commission of the offense has occurred,
9 where such municipality has a population of more than
10 25,000 persons;
11 (8) all statements made and evidence offered under
12 paragraph (7) of subsection (a) of this Section; and
13 (9) all additional matters which the court directs
14 the clerk to transmit. Sentencing Hearing.
15 (a) Except when the death penalty is sought under
16 hearing procedures otherwise specified, after a determination
17 of guilt, a hearing shall be held to impose the sentence.
18 However, prior to the imposition of sentence on an individual
19 being sentenced for an offense based upon a charge for a
20 violation of Section 11-501 of the Illinois Vehicle Code or a
21 similar provision of a local ordinance, the individual must
22 undergo a professional evaluation to determine if an alcohol
23 or other drug abuse problem exists and the extent of such a
24 problem. Programs conducting these evaluations shall be
25 licensed by the Department of Human Services. However, if
26 the individual is not a resident of Illinois, the court may,
27 in its discretion, accept an evaluation from a program in the
28 state of such individual's residence. The court may in its
29 sentencing order approve an eligible defendant for placement
30 in a Department of Corrections impact incarceration program
31 as provided in Section 5-8-1.1. At the hearing the court
32 shall:
33 (1) consider the evidence, if any, received upon
34 the trial;
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1 (2) consider any presentence reports;
2 (3) consider the financial impact of incarceration
3 based on the financial impact statement filed with the
4 clerk of the court by the Department of Corrections;
5 (4) consider evidence and information offered by
6 the parties in aggravation and mitigation;
7 (5) hear arguments as to sentencing alternatives;
8 (6) afford the defendant the opportunity to make a
9 statement in his own behalf;
10 (7) afford the victim of a violent crime or a
11 violation of Section 11-501 of the Illinois Vehicle Code,
12 or a similar provision of a local ordinance, committed by
13 the defendant the opportunity to make a statement
14 concerning the impact on the victim and to offer evidence
15 in aggravation or mitigation; provided that the statement
16 and evidence offered in aggravation or mitigation must
17 first be prepared in writing in conjunction with the
18 State's Attorney before it may be presented orally at the
19 hearing. Any sworn testimony offered by the victim is
20 subject to the defendant's right to cross-examine. All
21 statements and evidence offered under this paragraph (7)
22 shall become part of the record of the court; and
23 (8) in cases of reckless homicide afford the
24 victim's spouse, guardians, parents or other immediate
25 family members an opportunity to make oral statements.
26 (b) All sentences shall be imposed by the judge based
27 upon his independent assessment of the elements specified
28 above and any agreement as to sentence reached by the
29 parties. The judge who presided at the trial or the judge
30 who accepted the plea of guilty shall impose the sentence
31 unless he is no longer sitting as a judge in that court.
32 Where the judge does not impose sentence at the same time on
33 all defendants who are convicted as a result of being
34 involved in the same offense, the defendant or the State's
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1 attorney may advise the sentencing court of the disposition
2 of any other defendants who have been sentenced.
3 (c) In imposing a sentence for a violent crime or for an
4 offense of operating or being in physical control of a
5 vehicle while under the influence of alcohol, any other drug
6 or any combination thereof, or a similar provision of a local
7 ordinance, when such offense resulted in the personal injury
8 to someone other than the defendant, the trial judge shall
9 specify on the record the particular evidence, information,
10 factors in mitigation and aggravation or other reasons that
11 led to his sentencing determination. The full verbatim record
12 of the sentencing hearing shall be filed with the clerk of
13 the court and shall be a public record.
14 (c-1) In imposing a sentence for the offense of
15 aggravated kidnapping for ransom, home invasion, armed
16 robbery, aggravated vehicular hijacking, aggravated discharge
17 of a firearm, or armed violence with a category I weapon or
18 category II weapon, the trial judge shall make a finding as
19 to whether the conduct leading to conviction for the offense
20 resulted in great bodily harm to a victim, and shall enter
21 that finding and the basis for that finding in the record.
22 (c-2) If the defendant is sentenced to prison, other
23 than when a sentence of natural life imprisonment or a
24 sentence of death is imposed, at the time the sentence is
25 imposed the judge shall state on the record in open court the
26 approximate period of time the defendant will serve in
27 custody according to the then current statutory rules and
28 regulations for early release found in Section 3-6-3 and
29 other related provisions of this Code. This statement is
30 intended solely to inform the public, has no legal effect on
31 the defendant's actual release, and may not be relied on by
32 the defendant on appeal.
33 The judge's statement, to be given after pronouncing the
34 sentence, other than when the sentence is imposed for one of
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1 the offenses enumerated in paragraph (a)(3) of Section 3-6-3,
2 shall include the following:
3 "The purpose of this statement is to inform the public of
4 the actual period of time this defendant is likely to spend
5 in prison as a result of this sentence. The actual period of
6 prison time served is determined by the statutes of Illinois
7 as applied to this sentence by the Illinois Department of
8 Corrections and the Illinois Prisoner Review Board. In this
9 case, assuming the defendant receives all of his or her good
10 conduct credit, the period of estimated actual custody is ...
11 years and ... months, less up to 180 days additional good
12 conduct credit for meritorious service. If the defendant,
13 because of his or her own misconduct or failure to comply
14 with the institutional regulations, does not receive those
15 credits, the actual time served in prison will be longer.
16 The defendant may also receive an additional one-half day
17 good conduct credit for each day of participation in
18 vocational, industry, substance abuse, and educational
19 programs as provided for by Illinois statute."
20 When the sentence is imposed for one of the offenses
21 enumerated in paragraph (a)(3) of Section 3-6-3, other than
22 when the sentence is imposed for one of the offenses
23 enumerated in paragraph (a)(2) of Section 3-6-3 committed on
24 or after the effective date of this amendatory Act of 1995,
25 the judge's statement, to be given after pronouncing the
26 sentence, shall include the following:
27 "The purpose of this statement is to inform the public of
28 the actual period of time this defendant is likely to spend
29 in prison as a result of this sentence. The actual period of
30 prison time served is determined by the statutes of Illinois
31 as applied to this sentence by the Illinois Department of
32 Corrections and the Illinois Prisoner Review Board. In this
33 case, assuming the defendant receives all of his or her good
34 conduct credit, the period of estimated actual custody is ...
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1 years and ... months, less up to 90 days additional good
2 conduct credit for meritorious service. If the defendant,
3 because of his or her own misconduct or failure to comply
4 with the institutional regulations, does not receive those
5 credits, the actual time served in prison will be longer.
6 The defendant may also receive an additional one-half day
7 good conduct credit for each day of participation in
8 vocational, industry, substance abuse, and educational
9 programs as provided for by Illinois statute."
10 When the sentence is imposed for one of the offenses
11 enumerated in paragraph (a)(2) of Section 3-6-3, other than
12 first degree murder, and the offense was committed on or
13 after the effective date of this amendatory Act of 1995, the
14 judge's statement, to be given after pronouncing the
15 sentence, shall include the following:
16 "The purpose of this statement is to inform the public of
17 the actual period of time this defendant is likely to spend
18 in prison as a result of this sentence. The actual period of
19 prison time served is determined by the statutes of Illinois
20 as applied to this sentence by the Illinois Department of
21 Corrections and the Illinois Prisoner Review Board. In this
22 case, the defendant is entitled to no more than 4 1/2 days of
23 good conduct credit for each month of his or her sentence of
24 imprisonment. Therefore, this defendant will serve at least
25 85% of his or her sentence. Assuming the defendant receives
26 4 1/2 days credit for each month of his or her sentence, the
27 period of estimated actual custody is ... years and ...
28 months. If the defendant, because of his or her own
29 misconduct or failure to comply with the institutional
30 regulations receives lesser credit, the actual time served in
31 prison will be longer."
32 When a sentence of imprisonment is imposed for first
33 degree murder and the offense was committed on or after the
34 effective date of this amendatory Act of 1995, the judge's
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1 statement, to be given after pronouncing the sentence, shall
2 include the following:
3 "The purpose of this statement is to inform the public of
4 the actual period of time this defendant is likely to spend
5 in prison as a result of this sentence. The actual period of
6 prison time served is determined by the statutes of Illinois
7 as applied to this sentence by the Illinois Department of
8 Corrections and the Illinois Prisoner Review Board. In this
9 case, the defendant is not entitled to good conduct credit.
10 Therefore, this defendant will serve 100% of his or her
11 sentence."
12 (d) When the defendant is committed to the Department of
13 Corrections, the State's Attorney shall and counsel for the
14 defendant may file a statement with the clerk of the court to
15 be transmitted to the department, agency or institution to
16 which the defendant is committed to furnish such department,
17 agency or institution with the facts and circumstances of the
18 offense for which the person was committed together with all
19 other factual information accessible to them in regard to the
20 person prior to his commitment relative to his habits,
21 associates, disposition and reputation and any other facts
22 and circumstances which may aid such department, agency or
23 institution during its custody of such person. The clerk
24 shall within 10 days after receiving any such statements
25 transmit a copy to such department, agency or institution and
26 a copy to the other party, provided, however, that this shall
27 not be cause for delay in conveying the person to the
28 department, agency or institution to which he has been
29 committed.
30 (e) The clerk of the court shall transmit to the
31 department, agency or institution, if any, to which the
32 defendant is committed, the following:
33 (1) the sentence imposed;
34 (2) any statement by the court of the basis for
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1 imposing the sentence;
2 (3) any presentence reports;
3 (4) the number of days, if any, which the defendant
4 has been in custody and for which he is entitled to
5 credit against the sentence, which information shall be
6 provided to the clerk by the sheriff;
7 (4.1) any finding of great bodily harm made by the
8 court with respect to an offense enumerated in subsection
9 (c-1);
10 (5) all statements filed under subsection (d) of
11 this Section;
12 (6) any medical or mental health records or
13 summaries of the defendant;
14 (7) the municipality where the arrest of the
15 offender or the commission of the offense has occurred,
16 where such municipality has a population of more than
17 25,000 persons;
18 (8) all statements made and evidence offered under
19 paragraph (7) of subsection (a) of this Section; and
20 (9) all additional matters which the court directs
21 the clerk to transmit.
22 (Source: P.A. 89-404, eff. 8-20-95; 89-507, eff. 7-1-97.)
23 Section 45. Section 12-903.5 of the Code of Civil
24 Procedure is amended as follows:
25 (735 ILCS 5/12-903.5)
26 Sec. 12-903.5. Drug asset forfeitures.
27 (a) The homestead exemption under this Part 9 of Article
28 XII does not apply to property subject to forfeiture under
29 Section 505 of the Illinois Controlled Substances Act,
30 Section 12 of the Cannabis Control Act, or Section 5 of the
31 Narcotics Profit Forfeiture Act.
32 (b) This Section applies to actions pending on or
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1 commenced on or after the effective date of this Section.
2 Drug asset forfeitures.
3 (a) The homestead exemption under this Part 9 of Article
4 XII does not apply to property subject to forfeiture under
5 Section 505 of the Illinois Controlled Substances Act,
6 Section 12 of the Cannabis Control Act, or Section 5 of the
7 Narcotics Profit Forfeiture Act.
8 (b) This Section applies to actions pending on or
9 commenced on or after the effective date of this amendatory
10 Act of 1995.
11 (Source: P.A. 89-404, eff. 8-20-95.)
12 Section 95. Severability. The provisions of this Act
13 are severable under Section 1.31 of the Statute on Statutes.
14 Section 99. Effective date. This Act takes effect upon
15 becoming law, except that the amendatory changes to Sec. 18-5
16 of the Criminal Code of 1961 take effect January 1, 1999.".