97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB3619

 

Introduced 2/24/2011, by Rep. John D. Cavaletto - Renée Kosel - Kay Hatcher - Norine Hammond - Richard Morthland, et al.

 

SYNOPSIS AS INTRODUCED:
 
New Act
10 ILCS 5/9-8.10

    Creates the Public Corruption Profit Forfeiture Act and amends the Election Code. Provides for the forfeiture to the State of Illinois of proceeds and profits derived through violations of the statutes concerning intimidation by public officials, bribery, or providing, attempting, offering to provide or soliciting, accepting, or attempting to accept a kickback, or including, directly or indirectly, the amount of any kickback prohibited in the contract price charged by a subcontractor to a prime contractor or a higher tier subcontractor or in the contract price charged by a prime contractor to any unit of State or local government for a public contract a kickback. Provides for distribution of the proceeds from forfeited property. Includes a continuing appropriation to the Department of State Police.


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FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

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1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 1. Short title. This Act may be cited as the Public
5Corruption Profit Forfeiture Act.
 
6    Section 5. Legislative declaration. Public corruption is a
7far reaching, continuing and extremely profitable criminal
8enterprise, which diverts significant amounts of public money
9for illicit purposes. Public corruption-related schemes
10persist despite the threat of prosecution and the actual
11prosecution and imprisonment of individual participants
12because existing sanctions do not effectively reach the money
13and other assets generated by such schemes. It is therefore
14necessary to supplement existing sanctions by mandating
15forfeiture of money and other assets generated by public
16corruption-related activities. Forfeiture diminishes the
17financial incentives which encourage and sustain public
18corruption, restores public moneys which have been diverted by
19public corruption, and secures for the People of the State of
20Illinois assets to be used for enforcement of laws governing
21public corruption.
 
22    Section 10. Penalties.

 

 

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1    (a) A person who is convicted of a violation of any of the
2following Sections, subsections, and clauses of the Criminal
3Code of 1961:
4        (1) clause (a)(6) of Section 12-6 (intimidation by a
5    public official),
6        (2) Section 33-1 (bribery), or
7        (3) subsection (a) of Section 33E-7 (kickbacks),
8shall forfeit to the State of Illinois:
9        (A) any profits or proceeds and any property or
10    property interest he or she has acquired or maintained in
11    violation of any of the offenses listed in clauses (1)
12    through (3) of this subsection (a) that the court
13    determines, after a forfeiture hearing under subsection
14    (b) of this Section, to have been acquired or maintained as
15    a result of violating any of the offenses listed in clauses
16    (1) through (3) of this subsection (a); and
17        (B) any interest in, security of, claim against, or
18    property or contractual right of any kind affording a
19    source of influence over, any enterprise which he or she
20    has established, operated, controlled, conducted, or
21    participated in the conduct of, in violation of any of the
22    offenses listed in clauses (1) through (3) of this
23    subsection (a) that the court determines, after a
24    forfeiture hearing under subsection (b) of this Section, to
25    have been acquired or maintained as a result of violating
26    any of the offenses listed in clauses (1) through (3) of

 

 

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1    this subsection (a) or used to facilitate a violation of
2    one of the offenses listed in clauses (1) through (3) of
3    this subsection (a).
4    (b) The court shall, upon petition by the Attorney General
5or State's Attorney, at any time after the filing of an
6information or return of an indictment, conduct a hearing to
7determine whether any property or property interest is subject
8to forfeiture under this Act. At the forfeiture hearing the
9people shall have the burden of establishing, by a
10preponderance of the evidence, that property or property
11interests are subject to forfeiture under this Act. There is a
12rebuttable presumption at such hearing that any property or
13property interest of a person charged by information or
14indictment with a violation of any of the offenses listed in
15clauses (1) through (3) of subsection (a) of this Section or
16who is convicted of a violation of any of the offenses listed
17in clauses (1) through (3) of subsection (a) of this Section is
18subject to forfeiture under this Section if the State
19establishes by a preponderance of the evidence that:
20        (1) such property or property interest was acquired by
21    such person during the period of the violation of any of
22    the offenses listed in clauses (1) through (3) of
23    subsection (a) of this Section or within a reasonable time
24    after such period; and
25        (2) there was no likely source for such property or
26    property interest other than the violation of any of the

 

 

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1    offenses listed in clauses (1) through (3) of subsection
2    (a) of this Section.
3    (c) In an action brought by the People of the State of
4Illinois under this Act, wherein any restraining order,
5injunction or prohibition or any other action in connection
6with any property or property interest subject to forfeiture
7under this Act is sought, the circuit court which shall preside
8over the trial of the person or persons charged with any of the
9offenses listed in clauses (1) through (3) of subsection (a) of
10this Section shall first determine whether there is probable
11cause to believe that the person or persons so charged have
12committed a violation of any of the offenses listed in clauses
13(1) through (3) of subsection (a) of this Section and whether
14the property or property interest is subject to forfeiture
15pursuant to this Act.
16    In order to make such a determination, prior to entering
17any such order, the court shall conduct a hearing without a
18jury, wherein the People shall establish that there is: (i)
19probable cause that the person or persons so charged have
20committed one of the offenses listed in clauses (1) through (3)
21of subsection (a) of this Section and (ii) probable cause that
22any property or property interest may be subject to forfeiture
23pursuant to this Act. Such hearing may be conducted
24simultaneously with a preliminary hearing, if the prosecution
25is commenced by information or complaint, or by motion of the
26People, at any stage in the proceedings. The court may accept a

 

 

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1finding of probable cause at a preliminary hearing following
2the filing of a charge for violating one of the offenses listed
3in clauses (1) through (3) of subsection (a) of this Section or
4the return of an indictment by a grand jury charging one of the
5offenses listed in clauses (1) through (3) of subsection (a) of
6this Section as sufficient evidence of probable cause as
7provided in item (i) above.
8    Upon such a finding, the circuit court shall enter such
9restraining order, injunction or prohibition, or shall take
10such other action in connection with any such property or
11property interest subject to forfeiture under this Act, as is
12necessary to insure that such property is not removed from the
13jurisdiction of the court, concealed, destroyed or otherwise
14disposed of by the owner of that property or property interest
15prior to a forfeiture hearing under subsection (b) of this
16Section. The Attorney General or State's Attorney shall file a
17certified copy of such restraining order, injunction or other
18prohibition with the recorder of deeds or registrar of titles
19of each county where any such property of the defendant may be
20located. No such injunction, restraining order or other
21prohibition shall affect the rights of any bona fide purchaser,
22mortgagee, judgment creditor or other lien holder arising prior
23to the date of such filing.
24    The court may, at any time, upon verified petition by the
25defendant, conduct a hearing to release all or portions of any
26such property or interest which the court previously determined

 

 

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1to be subject to forfeiture or subject to any restraining
2order, injunction, or prohibition or other action. The court
3may release such property to the defendant for good cause shown
4and within the sound discretion of the court.
5    (d) Prosecution under this Act may be commenced by the
6Attorney General or a State's Attorney.
7    (e) Upon an order of forfeiture being entered pursuant to
8subsection (b) of this Section, the court shall authorize the
9Attorney General to seize any property or property interest
10declared forfeited under this Act and under such terms and
11conditions as the court shall deem proper. Any property or
12property interest that has been the subject of an entered
13restraining order, injunction or prohibition or any other
14action filed under subsection (c) shall be forfeited unless the
15claimant can show by a preponderance of the evidence that the
16property or property interest has not been acquired or
17maintained as a result of a violation of any of the offenses
18listed in clauses (1) through (3) of subsection (a) of this
19Section or has not been used to facilitate a violation of any
20of the offenses listed in clauses (1) through (3) of subsection
21(a) of this Section.
22    (f) The Attorney General or his or her designee is
23authorized to sell all property forfeited and seized pursuant
24to this Act, unless such property is required by law to be
25destroyed or is harmful to the public, and, after the deduction
26of all requisite expenses of administration and sale, shall

 

 

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1distribute the proceeds of such sale, along with any moneys
2forfeited or seized, in accordance with subsection (g).
3    (g) All monies and the sale proceeds of all other property
4forfeited and seized pursuant to this Act shall be distributed
5as follows:
6        (1) An amount equal to 50% shall be distributed to the
7    unit of local government whose officers or employees
8    conducted the investigation into a violation of any of the
9    offenses listed in clauses (1) through (3) of subsection
10    (a) of this Section and caused the arrest or arrests and
11    prosecution leading to the forfeiture. Amounts distributed
12    to units of local government shall be used for enforcement
13    of laws governing public corruption, or for other law
14    enforcement purposes. In the event, however, that the
15    investigation, arrest or arrests and prosecution leading
16    to the forfeiture were undertaken solely by a State agency,
17    the portion provided hereunder shall be paid into the State
18    Asset Forfeiture Fund in the State treasury to be used by
19    that State agency in accordance with law.
20        (2) An amount equal to 12.5% shall be distributed to
21    the county in which the prosecution resulting in the
22    forfeiture was instituted, deposited in a special fund in
23    the county treasury and appropriated to the State's
24    Attorney for use in accordance with law.
25        (3) An amount equal to 12.5% shall be distributed to
26    the Office of the State's Attorneys Appellate Prosecutor

 

 

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1    and deposited in the State Asset Forfeiture Fund, to be
2    used by the Office of the State's Attorneys Appellate
3    Prosecutor for additional expenses incurred in prosecuting
4    appeals arising under this Act. Any amounts remaining in
5    the Fund after all additional expenses have been paid shall
6    be used by the Office to reduce the participating county
7    contributions to the Office on a prorated basis as
8    determined by the board of governors of the Office of the
9    State's Attorneys Appellate Prosecutor based on the
10    populations of the participating counties.
11        (4) An amount equal to 25% shall be paid into the State
12    Asset Forfeiture Fund in the State treasury to be used by
13    the Department of State Police for the funding of the
14    investigation of public corruption activities. Any amounts
15    remaining in the Fund after full funding of such
16    investigations shall be used by the Department in
17    accordance with law to fund its other enforcement
18    activities.
19    (h) All monies deposited pursuant to this Act in the State
20Asset Forfeiture Fund are appropriated, on a continuing basis,
21to the Department of State Police to be used in the manner set
22forth in this Section.
 
23    Section 15. Forfeiture of political contribution. Whenever
24any person pleads guilty to, or is found guilty of, any offense
25under subsection (a) of Section 10 of this Act, in addition to

 

 

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1any other penalty imposed by the court, all contributions (as
2defined by Section 9-1.4 of the Election Code) or other
3receipts held at the time of forfeiture by a political
4committee (as defined by Section 9-1.9 of the Election Code) or
5an organization subject to Section 9-7.5 of the Election Code,
6which is controlled by that person shall be paid to the State
7within 30 days from the date of the entry of the guilty plea or
8conviction. Payments received by the State pursuant to this
9Section shall be deposited into the General Revenue Fund.
 
10    Section 20. Fines.
11    (a) Whenever any person pleads guilty to or is found guilty
12of an offense under this Act, a fine may be levied in addition
13to any other penalty imposed by the court.
14    (b) In determining whether to impose a fine under this
15Section and the amount, time for payment, and method of payment
16of any fine so imposed, the court shall:
17        (1) consider the defendant's income, regardless of
18    source, the defendant's earning capacity, and the
19    defendant's financial resources, as well as the nature of
20    the burden the fine will impose on the defendant and any
21    person legally or financially dependent upon the
22    defendant;
23        (2) consider the proof received at trial, or as a
24    result of a plea of guilty, concerning any profits or other
25    proceeds derived by the defendant from the violation of

 

 

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1    this Act;
2        (3) take into account any other pertinent equitable
3    considerations; and
4        (4) give primary consideration to the need to deprive
5    the defendant of illegally obtained profits or other
6    proceeds from the offense.
7    (c) As a condition of a fine, the court may require that
8payment be made in specified installments or within a specified
9period of time, but such period shall not be greater than the
10maximum applicable term of probation or imprisonment,
11whichever is greater. Unless otherwise specified, payment of a
12fine shall be due immediately.
13    (d) If a fine for a violation of this Act is imposed on an
14organization, it is the duty of each individual authorized to
15make disbursements of the assets of the organization to pay the
16fine from assets of the organization.
17    (e) (1) A defendant who has been sentenced to pay a fine,
18and who has paid part but not all of such fine, may petition
19the court for an extension of the time for payment or
20modification of the method of payment.
21        (2) The court may grant a petition made pursuant to
22    this subsection if it finds that:
23            (i) the circumstances that warranted payment by
24        the time or method specified no longer exist; or
25            (ii) it is otherwise unjust to require payment of
26        the fine by the time or method specified.
 

 

 

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1    Section 25. Distribution of proceeds of fines.
2    (a) The proceeds of all fines received under the provisions
3of this Act shall be transmitted to and deposited in the
4treasurer's office at the level of government as follows:
5        (1) If the seizure was made by a combination of law
6    enforcement personnel representing differing units of
7    local government, the court levying the fine shall
8    equitably allocate 50% of the fine among these units of
9    local government and shall allocate 50% to the county
10    general corporate fund. In the event that the seizure was
11    made by law enforcement personnel representing a unit of
12    local government from a municipality where the number of
13    inhabitants exceeds 2 million, the court levying the fine
14    shall allocate 100% of the fine to that unit of local
15    government. If the seizure was made by a combination of law
16    enforcement personnel representing differing units of
17    local government, and at least one of those units
18    represents a municipality where the number of inhabitants
19    exceeds 2 million, the court shall equitably allocate 100%
20    of the proceeds of the fines received among the differing
21    units of local government.
22        (2) If such seizure was made by State law enforcement
23    personnel, then the court shall allocate 50% to the State
24    treasury and 50% to the county general corporate fund.
25        (3) If a State law enforcement agency in combination

 

 

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1    with a law enforcement agency or agencies of a unit or
2    units of local government conducted the seizure, the court
3    shall equitably allocate 50% of the fines to or among the
4    law enforcement agency or agencies of the unit or units of
5    local government which conducted the seizure and shall
6    allocate 50% to the county general corporate fund.
7    (b) The proceeds of all fines allocated to the law
8enforcement agency or agencies of the unit or units of local
9government pursuant to subsection (a) shall be made available
10to that law enforcement agency as expendable receipts for use
11in the enforcement of laws regulating public corruption and
12other laws. The proceeds of fines awarded to the State treasury
13shall be deposited in the State Asset Forfeiture Fund. Monies
14from this Fund may be used by the Department of State Police in
15the enforcement of laws regulating public corruption and other
16laws; and all other monies shall be paid into the General
17Revenue Fund in the State treasury.
 
18    Section 30. Preventing and restraining violations.
19    (a) The circuit courts of the State shall have jurisdiction
20to prevent and restrain violations of this Act by issuing
21appropriate orders, including, but not limited to: ordering any
22person to divest himself of any interest, direct or indirect,
23in any enterprise; imposing reasonable restrictions on the
24future activities or investment of any person, including, but
25not limited to, prohibiting any person from engaging in the

 

 

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1same type of endeavor as the enterprise engaged in, the
2activities of which affect business in the State of Illinois;
3or ordering dissolution or reorganization of any enterprise,
4making due provision for the rights of innocent persons.
5    (b) The Attorney General or the State's Attorney may
6institute proceedings under this Section. In any action brought
7by the State of Illinois under this Section, the court shall
8proceed as soon as practicable to the hearing and determination
9thereof. Pending that determination, the court may at any time
10enter such temporary restraining orders, preliminary or
11permanent injunctions, or prohibitions, or take such other
12actions including the acceptance of satisfactory performance
13bonds by a defendant, as it shall deem proper.
14    (c) Any person directly injured in his business, person or
15property by reason of a violation of this Act may sue the
16violator therefor in any appropriate circuit court and shall
17recover threefold the damages he or she sustains and the cost
18of the action, including a reasonable attorney's fee.
19    (d) A final judgment entered in favor of the People of the
20State of Illinois in any criminal proceeding brought under this
21Act shall estop the defendant in the criminal case from denying
22the essential allegations of the criminal offense in any
23subsequent civil proceeding brought under this Act.
 
24    Section 35. Venue. Any civil action or proceeding under
25this Act against any person may be instituted in the circuit

 

 

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1court for any county in which such person resides, is found,
2has an agent, transacts his or her affairs, or in which
3property that is the subject of these proceedings is located.
 
4    Section 40. Intent. It is the intent of the General
5Assembly that this Act be liberally construed so as to effect
6the purposes of this Act and be construed in accordance with
7similar provisions contained in the Narcotics Profit
8Forfeiture Act.
 
9    Section 45. Severability. If any provision of this Act or
10the application thereof to any person or circumstance is
11invalid, such invalidation shall not affect other provisions or
12applications of the Act which can be given effect without the
13invalid provision or application, and to this end the
14provisions of this Act are declared to be severable.
 
15    Section 50. The Election Code is amended by changing
16Section 9-8.10 as follows:
 
17    (10 ILCS 5/9-8.10)
18    Sec. 9-8.10. Use of political committee and other reporting
19organization funds.
20    (a) A political committee shall not make expenditures:
21        (1) In violation of any law of the United States or of
22    this State.

 

 

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1        (2) Clearly in excess of the fair market value of the
2    services, materials, facilities, or other things of value
3    received in exchange.
4        (3) For satisfaction or repayment of any debts other
5    than loans made to the committee or to the public official
6    or candidate on behalf of the committee or repayment of
7    goods and services purchased by the committee under a
8    credit agreement. Nothing in this Section authorizes the
9    use of campaign funds to repay personal loans. The
10    repayments shall be made by check written to the person who
11    made the loan or credit agreement. The terms and conditions
12    of any loan or credit agreement to a committee shall be set
13    forth in a written agreement, including but not limited to
14    the method and amount of repayment, that shall be executed
15    by the chairman or treasurer of the committee at the time
16    of the loan or credit agreement. The loan or agreement
17    shall also set forth the rate of interest for the loan, if
18    any, which may not substantially exceed the prevailing
19    market interest rate at the time the agreement is executed.
20        (4) For the satisfaction or repayment of any debts or
21    for the payment of any expenses relating to a personal
22    residence. Campaign funds may not be used as collateral for
23    home mortgages.
24        (5) For clothing or personal laundry expenses, except
25    clothing items rented by the public official or candidate
26    for his or her own use exclusively for a specific

 

 

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1    campaign-related event, provided that committees may
2    purchase costumes, novelty items, or other accessories
3    worn primarily to advertise the candidacy.
4        (6) For the travel expenses of any person unless the
5    travel is necessary for fulfillment of political,
6    governmental, or public policy duties, activities, or
7    purposes.
8        (7) For membership or club dues charged by
9    organizations, clubs, or facilities that are primarily
10    engaged in providing health, exercise, or recreational
11    services; provided, however, that funds received under
12    this Article may be used to rent the clubs or facilities
13    for a specific campaign-related event.
14        (8) In payment for anything of value or for
15    reimbursement of any expenditure for which any person has
16    been reimbursed by the State or any person. For purposes of
17    this item (8), a per diem allowance is not a reimbursement.
18        (9) For the purchase of or installment payment for a
19    motor vehicle unless the political committee can
20    demonstrate that purchase of a motor vehicle is more
21    cost-effective than leasing a motor vehicle as permitted
22    under this item (9). A political committee may lease or
23    purchase and insure, maintain, and repair a motor vehicle
24    if the vehicle will be used primarily for campaign purposes
25    or for the performance of governmental duties. A committee
26    shall not make expenditures for use of the vehicle for

 

 

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1    non-campaign or non-governmental purposes. Persons using
2    vehicles not purchased or leased by a political committee
3    may be reimbursed for actual mileage for the use of the
4    vehicle for campaign purposes or for the performance of
5    governmental duties. The mileage reimbursements shall be
6    made at a rate not to exceed the standard mileage rate
7    method for computation of business expenses under the
8    Internal Revenue Code.
9        (10) Directly for an individual's tuition or other
10    educational expenses, except for governmental or political
11    purposes directly related to a candidate's or public
12    official's duties and responsibilities.
13        (11) For payments to a public official or candidate or
14    his or her family member unless for compensation for
15    services actually rendered by that person. The provisions
16    of this item (11) do not apply to expenditures by a
17    political committee in an aggregate amount not exceeding
18    the amount of funds reported to and certified by the State
19    Board or county clerk as available as of June 30, 1998, in
20    the semi-annual report of contributions and expenditures
21    filed by the political committee for the period concluding
22    June 30, 1998.
23    (b) The Board shall have the authority to investigate, upon
24receipt of a verified complaint, violations of the provisions
25of this Section. The Board may levy a fine on any person who
26knowingly makes expenditures in violation of this Section and

 

 

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1on any person who knowingly makes a malicious and false
2accusation of a violation of this Section. The Board may act
3under this subsection only upon the affirmative vote of at
4least 5 of its members. The fine shall not exceed $500 for each
5expenditure of $500 or less and shall not exceed the amount of
6the expenditure plus $500 for each expenditure greater than
7$500. The Board shall also have the authority to render rulings
8and issue opinions relating to compliance with this Section.
9    (c) Nothing in this Section prohibits the expenditure of
10funds of a political committee controlled by an officeholder or
11by a candidate to defray the customary and reasonable expenses
12of an officeholder in connection with the performance of
13governmental and public service functions.
14    (d) Nothing in this Section prohibits the funds of a
15political committee which is controlled by a person convicted
16of a violation of any of the offenses listed in subsection (a)
17of Section 10 of the Public Corruption Profit Forfeiture Act
18from being forfeited to the State under Section 15 of the
19Public Corruption Profit Forfeiture Act.
20    (e) Nothing in this Section prohibits the funds of a
21political committee, or an organization subject to Section
229-7.5, which is controlled by a person convicted of a violation
23of any of the offenses listed in subsection (a) of Section 10
24of the Public Corruption Profit Forfeiture Act from being
25forfeited to the State under Section 15 of the Public
26Corruption Profit Forfeiture Act.

 

 

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1(Source: P.A. 96-1019, eff. 1-1-11.)