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90_SB1425sam001
LRB9009448RCksam
1 AMENDMENT TO SENATE BILL 1425
2 AMENDMENT NO. . Amend Senate Bill 1425 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. The Counties Code is amended by changing
8 Section 3-6021 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. The Illinois Municipal Code is amended by
2 changing Section 7-4-8 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. The Criminal Code of 1961 is amended by
19 changing Sections 3-2 and 6-2 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.)
13 Section 20. The Cannabis Control Act is amended by
14 changing Section 12 as follows:
15 (720 ILCS 550/12) (from Ch. 56 1/2, par. 712)
16 Sec. 12. (a) The following are subject to forfeiture:
17 (1) all substances containing cannabis which have
18 been produced, manufactured, delivered, or possessed in
19 violation of this Act;
20 (2) all raw materials, products and equipment of
21 any kind which are produced, delivered, or possessed in
22 connection with any substance containing cannabis in
23 violation of this Act;
24 (3) all conveyances, including aircraft, vehicles
25 or vessels, which are used, or intended for use, to
26 transport, or in any manner to facilitate the
27 transportation, sale, receipt, possession, or concealment
28 of property described in paragraph (1) or (2) that
29 constitutes a felony violation of the Act, but:
30 (i) no conveyance used by any person as a
31 common carrier in the transaction of business as a
32 common carrier is subject to forfeiture under this
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1 Section unless it appears that the owner or other
2 person in charge of the conveyance is a consenting
3 party or privy to a violation of this Act;
4 (ii) no conveyance is subject to forfeiture
5 under this Section by reason of any act or omission
6 which the owner proves to have been committed or
7 omitted without his knowledge or consent;
8 (iii) a forfeiture of a conveyance encumbered
9 by a bona fide security interest is subject to the
10 interest of the secured party if he neither had
11 knowledge of nor consented to the act or omission;
12 (4) all money, things of value, books, records, and
13 research products and materials including formulas,
14 microfilm, tapes, and data which are used, or intended
15 for use in a felony violation of this Act;
16 (5) everything of value furnished or intended to be
17 furnished by any person in exchange for a substance in
18 violation of this Act, all proceeds traceable to such an
19 exchange, and all moneys, negotiable instruments, and
20 securities used, or intended to be used, to commit or in
21 any manner to facilitate any felony violation of this
22 Act.
23 (b) Property subject to forfeiture under this Act may be
24 seized by the Director or any peace officer upon process or
25 seizure warrant issued by any court having jurisdiction over
26 the property. Seizure by the Director or any peace officer
27 without process may be made:
28 (1) if the property subject to seizure has been the
29 subject of a prior judgment in favor of the State in a
30 criminal proceeding or in an injunction or forfeiture
31 proceeding based upon this Act or the Drug Asset
32 Forfeiture Procedure Act;
33 (2) if there is probable cause to believe that the
34 property is directly or indirectly dangerous to health or
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1 safety;
2 (3) if there is probable cause to believe that the
3 property is subject to forfeiture under this Act and the
4 property is seized under circumstances in which a
5 warrantless seizure or arrest would be reasonable; or
6 (4) in accordance with the Code of Criminal
7 Procedure of 1963.
8 (c) In the event of seizure pursuant to subsection (b),
9 forfeiture proceedings shall be instituted in accordance with
10 the Drug Asset Forfeiture Procedure Act.
11 (d) Property taken or detained under this Section shall
12 not be subject to replevin, but is deemed to be in the
13 custody of the Director subject only to the order and
14 judgments of the circuit court having jurisdiction over the
15 forfeiture proceedings and the decisions of the State's
16 Attorney under the Drug Asset Forfeiture Procedure Act. When
17 property is seized under this Act, the seizing agency shall
18 promptly conduct an inventory of the seized property,
19 estimate the property's value, and shall forward a copy of
20 the inventory of seized property and the estimate of the
21 property's value to the Director. Upon receiving notice of
22 seizure, the Director may:
23 (1) place the property under seal;
24 (2) remove the property to a place designated by
25 him;
26 (3) keep the property in the possession of the
27 seizing agency;
28 (4) remove the property to a storage area for
29 safekeeping or, if the property is a negotiable
30 instrument or money and is not needed for evidentiary
31 purposes, deposit it in an interest bearing account;
32 (5) place the property under constructive seizure
33 by posting notice of pending forfeiture on it, by giving
34 notice of pending forfeiture to its owners and interest
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1 holders, or by filing notice of pending forfeiture in any
2 appropriate public record relating to the property; or
3 (6) provide for another agency or custodian,
4 including an owner, secured party, or lienholder, to take
5 custody of the property upon the terms and conditions set
6 by the Director.
7 (e) No disposition may be made of property under seal
8 until the time for taking an appeal has elapsed or until all
9 appeals have been concluded unless a court, upon application
10 therefor, orders the sale of perishable substances and the
11 deposit of the proceeds of the sale with the court.
12 (f) When property is forfeited under this Act the
13 Director shall sell all such property unless such property is
14 required by law to be destroyed or is harmful to the public,
15 and shall distribute the proceeds of the sale, together with
16 any moneys forfeited or seized, in accordance with subsection
17 (g). However, upon the application of the seizing agency or
18 prosecutor who was responsible for the investigation, arrest
19 or arrests and prosecution which lead to the forfeiture, the
20 Director may return any item of forfeited property to the
21 seizing agency or prosecutor for official use in the
22 enforcement of laws relating to cannabis or controlled
23 substances, if the agency or prosecutor can demonstrate that
24 the item requested would be useful to the agency or
25 prosecutor in their enforcement efforts. When any real
26 property returned to the seizing agency is sold by the agency
27 or its unit of government, the proceeds of the sale shall be
28 delivered to the Director and distributed in accordance with
29 subsection (g).
30 (g) All monies and the sale proceeds of all other
31 property forfeited and seized under this Act shall be
32 distributed as follows:
33 (1) 65% shall be distributed to the metropolitan
34 enforcement group, local, municipal, county, or state law
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1 enforcement agency or agencies which conducted or
2 participated in the investigation resulting in the
3 forfeiture. The distribution shall bear a reasonable
4 relationship to the degree of direct participation of the
5 law enforcement agency in the effort resulting in the
6 forfeiture, taking into account the total value of the
7 property forfeited and the total law enforcement effort
8 with respect to the violation of the law upon which the
9 forfeiture is based. Amounts distributed to the agency
10 or agencies shall be used for the enforcement of laws
11 governing cannabis and controlled substances, except that
12 amounts distributed to the Secretary of State shall be
13 deposited into the Secretary of State Evidence Fund to be
14 used as provided in Section 2-115 of the Illinois Vehicle
15 Code.
16 (2)(i) 12.5% shall be distributed to the Office of
17 the State's Attorney of the county in which the
18 prosecution resulting in the forfeiture was
19 instituted, deposited in a special fund in the
20 county treasury and appropriated to the State's
21 Attorney for use in the enforcement of laws
22 governing cannabis and controlled substances. In
23 counties over 3,000,000 population, 25% will be
24 distributed to the Office of the State's Attorney
25 for use in the enforcement of laws governing
26 cannabis and controlled substances. If the
27 prosecution is undertaken solely by the Attorney
28 General, the portion provided hereunder shall be
29 distributed to the Attorney General for use in the
30 enforcement of laws governing cannabis and
31 controlled substances.
32 (ii) 12.5% shall be distributed to the Office
33 of the State's Attorneys Appellate Prosecutor and
34 deposited in the Narcotics Profit Forfeiture Fund of
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1 that Office to be used for additional expenses
2 incurred in the investigation, prosecution and
3 appeal of cases arising under laws governing
4 cannabis and controlled substances. The Office of
5 the State's Attorneys Appellate Prosecutor shall not
6 receive distribution from cases brought in counties
7 with over 3,000,000 population.
8 (3) 10% shall be retained by the Department of
9 State Police for expenses related to the administration
10 and sale of seized and forfeited property.
11 (a) The following are subject to forfeiture:
12 (1) all substances containing cannabis which have
13 been produced, manufactured, delivered, or possessed in
14 violation of this Act;
15 (2) all raw materials, products and equipment of
16 any kind which are produced, delivered, or possessed in
17 connection with any substance containing cannabis in
18 violation of this Act;
19 (3) all conveyances, including aircraft, vehicles
20 or vessels, which are used, or intended for use, to
21 transport, or in any manner to facilitate the
22 transportation, sale, receipt, possession, or concealment
23 of property described in paragraph (1) or (2) that
24 constitutes a felony violation of the Act, 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;
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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
8 for use in a felony violation of this Act;
9 (5) everything of value furnished or intended to be
10 furnished by any person in exchange for a substance in
11 violation of this Act, all proceeds traceable to such an
12 exchange, and all moneys, negotiable instruments, and
13 securities used, or intended to be used, to commit or in
14 any manner to facilitate any felony violation of this
15 Act.
16 (b) Property subject to forfeiture under this Act may be
17 seized by the Director or any peace officer upon process or
18 seizure warrant issued by any court having jurisdiction over
19 the property. Seizure by the Director or any peace officer
20 without process may be made:
21 (1) if the property subject to seizure has been the
22 subject of a prior judgment in favor of the State in a
23 criminal proceeding or in an injunction or forfeiture
24 proceeding based upon this Act or the Drug Asset
25 Forfeiture Procedure Act;
26 (2) if there is probable cause to believe that the
27 property is directly or indirectly dangerous to health or
28 safety;
29 (3) if there is probable cause to believe that the
30 property is subject to forfeiture under this Act and the
31 property is seized under circumstances in which a
32 warrantless seizure or arrest would be reasonable; or
33 (4) in accordance with the Code of Criminal
34 Procedure of 1963.
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1 (c) In the event of seizure pursuant to subsection (b),
2 forfeiture proceedings shall be instituted in accordance with
3 the Drug Asset Forfeiture Procedure Act.
4 (d) Property taken or detained under this Section shall
5 not be subject to replevin, but is deemed to be in the
6 custody of the Director subject only to the order and
7 judgments of the circuit court having jurisdiction over the
8 forfeiture proceedings and the decisions of the State's
9 Attorney under the Drug Asset Forfeiture Procedure Act. When
10 property is seized under this Act, the seizing agency shall
11 promptly conduct an inventory of the seized property,
12 estimate the property's value, and shall forward a copy of
13 the inventory of seized property and the estimate of the
14 property's value to the Director. Upon receiving notice of
15 seizure, the Director may:
16 (1) place the property under seal;
17 (2) remove the property to a place designated by
18 him;
19 (3) keep the property in the possession of the
20 seizing agency;
21 (4) remove the property to a storage area for
22 safekeeping or, if the property is a negotiable
23 instrument or money and is not needed for evidentiary
24 purposes, deposit it in an interest bearing account;
25 (5) place the property under constructive seizure
26 by posting notice of pending forfeiture on it, by giving
27 notice of pending forfeiture to its owners and interest
28 holders, or by filing notice of pending forfeiture in any
29 appropriate public record relating to the property; or
30 (6) provide for another agency or custodian,
31 including an owner, secured party, or lienholder, to take
32 custody of the property upon the terms and conditions set
33 by the Director.
34 (e) No disposition may be made of property under seal
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1 until the time for taking an appeal has elapsed or until all
2 appeals have been concluded unless a court, upon application
3 therefor, orders the sale of perishable substances and the
4 deposit of the proceeds of the sale with the court.
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
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1 with respect to the violation of the law upon which the
2 forfeiture is based. Amounts distributed to the agency
3 or 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
12 instituted, deposited in a special fund in the
13 county treasury and appropriated to the State's
14 Attorney for use in the enforcement of laws
15 governing cannabis and controlled substances. In
16 counties over 3,000,000 population, 25% will be
17 distributed to the Office of the State's Attorney
18 for use in the enforcement of laws governing
19 cannabis and controlled substances. If the
20 prosecution is undertaken solely by the Attorney
21 General, the portion provided hereunder shall be
22 distributed to the Attorney General for use in the
23 enforcement of laws governing cannabis and
24 controlled substances.
25 (ii) 12.5% shall be distributed to the Office
26 of the State's Attorneys Appellate Prosecutor and
27 deposited in the Narcotics Profit Forfeiture Fund of
28 that Office to be used for additional expenses
29 incurred in the investigation, prosecution and
30 appeal of cases arising under laws governing
31 cannabis and controlled substances. The Office of
32 the State's Attorneys Appellate Prosecutor shall not
33 receive distribution from cases brought in counties
34 with over 3,000,000 population.
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1 (3) 10% shall be retained by the Department of
2 State Police for expenses related to the administration
3 and sale of seized and forfeited property.
4 (Source: P.A. 89-404, eff. 8-20-95.)
5 Section 25. The Illinois Controlled Substances Act is
6 amended by changing Sections 100, 401, 402, 405.1, and 505 as
7 follows:
8 (720 ILCS 570/100) (from Ch. 56 1/2, par. 1100)
9 Sec. 100. Legislative intent. It is the intent of the
10 General Assembly, recognizing the rising incidence in the
11 abuse of drugs and other dangerous substances and its
12 resultant damage to the peace, health, and welfare of the
13 citizens of Illinois, to provide a system of control over the
14 distribution and use of controlled substances which will more
15 effectively: (1) limit access of such substances only to
16 those persons who have demonstrated an appropriate sense of
17 responsibility and have a lawful and legitimate reason to
18 possess them; (2) deter the unlawful and destructive abuse of
19 controlled substances; (3) penalize most heavily the illicit
20 traffickers or profiteers of controlled substances, who
21 propagate and perpetuate the abuse of such substances with
22 reckless disregard for its consumptive consequences upon
23 every element of society; (4) acknowledge the functional and
24 consequential differences between the various types of
25 controlled substances and provide for correspondingly
26 different degrees of control over each of the various types;
27 (5) unify where feasible and codify the efforts of this state
28 to conform with the regulatory systems of the Federal
29 government and other states to establish national
30 coordination of efforts to control the abuse of controlled
31 substances; and (6) provide law enforcement authorities with
32 the necessary resources to make this system efficacious.
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1 It is not the intent of the General Assembly to treat the
2 unlawful user or occasional petty distributor of controlled
3 substances with the same severity as the large-scale,
4 unlawful purveyors and traffickers of controlled substances.
5 However, it is recognized that persons who violate this Act
6 with respect to the manufacture, delivery, possession with
7 intent to deliver, or possession of more than one type of
8 controlled substance listed herein may accordingly receive
9 multiple convictions and sentences under each Section of this
10 Act. To this end, guidelines have been provided, along with a
11 wide latitude in sentencing discretion, to enable the
12 sentencing court to order penalties in each case which are
13 appropriate for the purposes of this Act.
14 Legislative intent. It is the intent of the General
15 Assembly, recognizing the rising incidence in the abuse of
16 drugs and other dangerous substances and its resultant damage
17 to the peace, health, and welfare of the citizens of
18 Illinois, to provide a system of control over the
19 distribution and use of controlled substances which will more
20 effectively: (1) limit access of such substances only to
21 those persons who have demonstrated an appropriate sense of
22 responsibility and have a lawful and legitimate reason to
23 possess them; (2) deter the unlawful and destructive abuse of
24 controlled substances; (3) penalize most heavily the illicit
25 traffickers or profiteers of controlled substances, who
26 propagate and perpetuate the abuse of such substances with
27 reckless disregard for its consumptive consequences upon
28 every element of society; (4) acknowledge the functional and
29 consequential differences between the various types of
30 controlled substances and provide for correspondingly
31 different degrees of control over each of the various types;
32 (5) unify where feasible and codify the efforts of this state
33 to conform with the regulatory systems of the Federal
34 government and other states to establish national
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1 coordination of efforts to control the abuse of controlled
2 substances; and (6) provide law enforcement authorities with
3 the necessary resources to make this system efficacious.
4 It is not the intent of the General Assembly to treat the
5 unlawful user or occasional petty distributor of controlled
6 substances with the same severity as the large-scale,
7 unlawful purveyors and traffickers of controlled substances.
8 However, it is recognized that persons who violate this Act
9 with respect to the manufacture, delivery, possession with
10 intent to deliver, or possession of more than one type of
11 controlled substance listed herein may accordingly receive
12 multiple convictions and sentences under each Section of this
13 Act. To this end, guidelines have been provided, along with a
14 wide latitude in sentencing discretion, to enable the
15 sentencing court to order penalties in each case which are
16 appropriate for the purposes of this Act.
17 (Source: P.A. 89-404, eff. 8-20-95.)
18 (720 ILCS 570/401) (from Ch. 56 1/2, par. 1401)
19 Sec. 401. Except as authorized by this Act, it is
20 unlawful for any person knowingly to manufacture or deliver,
21 or possess with intent to manufacture or deliver, a
22 controlled or counterfeit substance or controlled substance
23 analog. A violation of this Act with respect to each of the
24 controlled substances listed herein constitutes a single and
25 separate violation of this Act. For purposes of this
26 Section, "controlled substance analog" or "analog" means a
27 substance which is intended for human consumption, other than
28 a controlled substance, that has a chemical structure
29 substantially similar to that of a controlled substance in
30 Schedule I or II, or that was specifically designed to
31 produce an effect substantially similar to that of a
32 controlled substance in Schedule I or II. Examples of
33 chemical classes in which controlled substance analogs are
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1 found include, but are not limited to, the following:
2 phenethylamines, N-substituted piperidines, morphinans,
3 ecgonines, quinazolinones, substituted indoles, and
4 arylcycloalkylamines. For purposes of this Act, a controlled
5 substance analog shall be treated in the same manner as the
6 controlled substance to which it is substantially similar.
7 (a) Any person who violates this Section with respect to
8 the following amounts of controlled or counterfeit substances
9 or controlled substance analogs, notwithstanding any of the
10 provisions of subsections (c), (d), (e), (f), (g) or (h) to
11 the contrary, is guilty of a Class X felony and shall be
12 sentenced to a term of imprisonment as provided in this
13 subsection (a) and fined as provided in subsection (b):
14 (1) (A) not less than 6 years and not more than 30
15 years with respect to 15 grams or more but less than
16 100 grams of a substance containing heroin, or an
17 analog thereof;
18 (B) not less than 9 years and not more than 40
19 years with respect to 100 grams or more but less
20 than 400 grams of a substance containing heroin, or
21 an analog thereof;
22 (C) not less than 12 years and not more than
23 50 years with respect to 400 grams or more but less
24 than 900 grams of a substance containing heroin, or
25 an analog thereof;
26 (D) not less than 15 years and not more than
27 60 years with respect to 900 grams or more of any
28 substance containing heroin, or an analog thereof;
29 (2) (A) not less than 6 years and not more than 30
30 years with respect to 15 grams or more but less than
31 100 grams of a substance containing cocaine, or an
32 analog thereof;
33 (B) not less than 9 years and not more than 40
34 years with respect to 100 grams or more but less
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1 than 400 grams of a substance containing cocaine, or
2 an analog thereof;
3 (C) not less than 12 years and not more than
4 50 years with respect to 400 grams or more but less
5 than 900 grams of a substance containing cocaine, or
6 an analog thereof;
7 (D) not less than 15 years and not more than
8 60 years with respect to 900 grams or more of any
9 substance containing cocaine, or an analog thereof;
10 (3) (A) not less than 6 years and not more than 30
11 years with respect to 15 grams or more but less than
12 100 grams of a substance containing morphine, or an
13 analog thereof;
14 (B) not less than 9 years and not more than 40
15 years with respect to 100 grams or more but less
16 than 400 grams of a substance containing morphine,
17 or an analog thereof;
18 (C) not less than 12 years and not more than
19 50 years with respect to 400 grams or more but less
20 than 900 grams of a substance containing morphine,
21 or an analog thereof;
22 (D) not less than 15 years and not more than
23 60 years with respect to 900 grams or more of a
24 substance containing morphine, or an analog thereof;
25 (4) 200 grams or more of any substance containing
26 peyote, or an analog thereof;
27 (5) 200 grams or more of any substance containing a
28 derivative of barbituric acid or any of the salts of a
29 derivative of barbituric acid, or an analog thereof;
30 (6) 200 grams or more of any substance containing
31 amphetamine or methamphetamine or any salt of an optical
32 isomer of amphetamine or methamphetamine, or an analog
33 thereof;
34 (7) (A) not less than 6 years and not more than 30
-20- LRB9009448RCksam
1 years with respect to: (i) 15 grams or more but less
2 than 100 grams of a substance containing lysergic
3 acid diethylamide (LSD), or an analog thereof, or
4 (ii) 15 or more objects or 15 or more segregated
5 parts of an object or objects but less than 200
6 objects or 200 segregated parts of an object or
7 objects containing in them or having upon them any
8 amounts of any substance containing lysergic acid
9 diethylamide (LSD), or an analog thereof;
10 (B) not less than 9 years and not more than 40
11 years with respect to: (i) 100 grams or more but
12 less than 400 grams of a substance containing
13 lysergic acid diethylamide (LSD), or an analog
14 thereof, or (ii) 200 or more objects or 200 or more
15 segregated parts of an object or objects but less
16 than 600 objects or less than 600 segregated parts
17 of an object or objects containing in them or having
18 upon them any amount of any substance containing
19 lysergic acid diethylamide (LSD), or an analog
20 thereof;
21 (C) not less than 12 years and not more than
22 50 years with respect to: (i) 400 grams or more but
23 less than 900 grams of a substance containing
24 lysergic acid diethylamide (LSD), or an analog
25 thereof, or (ii) 600 or more objects or 600 or more
26 segregated parts of an object or objects but less
27 than 1500 objects or 1500 segregated parts of an
28 object or objects containing in them or having upon
29 them any amount of any substance containing lysergic
30 acid diethylamide (LSD), or an analog thereof;
31 (D) not less than 15 years and not more than
32 60 years with respect to: (i) 900 grams or more of
33 any substance containing lysergic acid diethylamide
34 (LSD), or an analog thereof, or (ii) 1500 or more
-21- LRB9009448RCksam
1 objects or 1500 or more segregated parts of an
2 object or objects containing in them or having upon
3 them any amount of a substance containing lysergic
4 acid diethylamide (LSD), or an analog thereof;
5 (8) 30 grams or more of any substance containing
6 pentazocine or any of the salts, isomers and salts of
7 isomers of pentazocine, or an analog thereof;
8 (9) 30 grams or more of any substance containing
9 methaqualone or any of the salts, isomers and salts of
10 isomers of methaqualone, or an analog thereof;
11 (10) 30 grams or more of any substance
12 containing phencyclidine or any of the salts, isomers
13 and salts of isomers of phencyclidine (PCP), or an
14 analog thereof;
15 (10.5) 30 grams or more of any substance containing
16 ketamine or any of the salts, isomers and salts of
17 isomers of ketamine, or an analog thereof;
18 (11) 200 grams or more of any substance containing
19 any other controlled substance classified in Schedules I
20 or II, or an analog thereof, which is not otherwise
21 included in this subsection.
22 (b) Any person sentenced with respect to violations of
23 paragraph (1), (2), (3) or (7) of subsection (a) involving
24 100 grams or more of the controlled substance named therein,
25 may in addition to the penalties provided therein, be fined
26 an amount not more than $500,000 or the full street value of
27 the controlled or counterfeit substance or controlled
28 substance analog, whichever is greater. The term "street
29 value" shall have the meaning ascribed in Section 110-5 of
30 the Code of Criminal Procedure of 1963. Any person sentenced
31 with respect to any other provision of subsection (a), may in
32 addition to the penalties provided therein, be fined an
33 amount not to exceed $500,000.
34 (c) Any person who violates this Section with regard to
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1 the following amounts of controlled or counterfeit substances
2 or controlled substance analogs, notwithstanding any of the
3 provisions of subsections (a), (b), (d), (e), (f), (g) or (h)
4 to the contrary, is guilty of a Class 1 felony. The fine for
5 violation of this subsection (c) shall not be more than
6 $250,000:
7 (1) 10 or more grams but less than 15 grams of any
8 substance containing heroin, or an analog thereof;
9 (2) 1 gram or more but less than 15 grams of any
10 substance containing cocaine, or an analog thereof;
11 (3) 10 grams or more but less than 15 grams of any
12 substance containing morphine, or an analog thereof;
13 (4) 50 grams or more but less than 200 grams of any
14 substance containing peyote, or an analog thereof;
15 (5) 50 grams or more but less than 200 grams of any
16 substance containing a derivative of barbituric acid or
17 any of the salts of a derivative of barbituric acid, or
18 an analog thereof;
19 (6) 50 grams or more but less than 200 grams of any
20 substance containing amphetamine or methamphetamine or
21 any salt of an optical isomer of amphetamine or
22 methamphetamine, or an analog thereof;
23 (7) (i) 5 grams or more but less than 15 grams of
24 any substance containing lysergic acid diethylamide
25 (LSD), or an analog thereof, or (ii) more than 10 objects
26 or more than 10 segregated parts of an object or objects
27 but less than 15 objects or less than 15 segregated parts
28 of an object containing in them or having upon them any
29 amount of any substance containing lysergic acid
30 diethylamide (LSD), or an analog thereof;
31 (8) 10 grams or more but less than 30 grams of any
32 substance containing pentazocine or any of the salts,
33 isomers and salts of isomers of pentazocine, or an analog
34 thereof;
-23- LRB9009448RCksam
1 (9) 10 grams or more but less than 30 grams of any
2 substance containing methaqualone or any of the salts,
3 isomers and salts of isomers of methaqualone, or an
4 analog thereof;
5 (10) 10 grams or more but less than 30 grams of any
6 substance containing phencyclidine or any of the salts,
7 isomers and salts of isomers of phencyclidine (PCP), or
8 an analog thereof;
9 (10.5) 10 grams or more but less than 30 grams of
10 any substance containing ketamine or any of the salts,
11 isomers and salts of isomers of ketamine, or an analog
12 thereof;
13 (11) 50 grams or more but less than 200 grams of
14 any substance containing a substance classified in
15 Schedules I or II, or an analog thereof, which is not
16 otherwise included in this subsection.
17 (d) Any person who violates this Section with regard to
18 any other amount of a controlled or counterfeit substance
19 classified in Schedules I or II, or an analog thereof, which
20 is (i) a narcotic drug, or (ii) lysergic acid diethylamide
21 (LSD) or an analog thereof, is guilty of a Class 2 felony.
22 The fine for violation of this subsection (d) shall not be
23 more than $200,000.
24 (e) Any person who violates this Section with regard to
25 any other amount of a controlled or counterfeit substance
26 classified in Schedule I or II, or an analog thereof, which
27 substance is not included under subsection (d) of this
28 Section, is guilty of a Class 3 felony. The fine for
29 violation of this subsection (e) shall not be more than
30 $150,000.
31 (f) Any person who violates this Section with regard to
32 any other amount of a controlled or counterfeit substance
33 classified in Schedule III is guilty of a Class 3 felony. The
34 fine for violation of this subsection (f) shall not be more
-24- LRB9009448RCksam
1 than $125,000.
2 (g) Any person who violates this Section with regard to
3 any other amount of a controlled or counterfeit substance
4 classified in Schedule IV is guilty of a Class 3 felony. The
5 fine for violation of this subsection (g) shall not be more
6 than $100,000.
7 (h) Any person who violates this Section with regard to
8 any other amount of a controlled or counterfeit substance
9 classified in Schedule V is guilty of a Class 3 felony. The
10 fine for violation of this subsection (h) shall not be more
11 than $75,000.
12 (i) This Section does not apply to the manufacture,
13 possession or distribution of a substance in conformance with
14 the provisions of an approved new drug application or an
15 exemption for investigational use within the meaning of
16 Section 505 of the Federal Food, Drug and Cosmetic Act.
17 Except as authorized by this Act, it is unlawful for any
18 person knowingly to manufacture or deliver, or possess with
19 intent to manufacture or deliver, a controlled or counterfeit
20 substance or controlled substance analog. A violation of
21 this Act with respect to each of the controlled substances
22 listed herein constitutes a single and separate violation of
23 this Act. For purposes of this Section, "controlled
24 substance analog" or "analog" means a substance which is
25 intended for human consumption, other than a controlled
26 substance, that has a chemical structure substantially
27 similar to that of a controlled substance in Schedule I or
28 II, or that was specifically designed to produce an effect
29 substantially similar to that of a controlled substance in
30 Schedule I or II. Examples of chemical classes in which
31 controlled substance analogs are found include, but are not
32 limited to, the following: phenethylamines, N-substituted
33 piperidines, morphinans, ecgonines, quinazolinones,
34 substituted indoles, and arylcycloalkylamines. For purposes
-25- LRB9009448RCksam
1 of this Act, a controlled substance analog shall be treated
2 in the same manner as the controlled substance to which it is
3 substantially similar.
4 (a) Any person who violates this Section with respect to
5 the following amounts of controlled or counterfeit substances
6 or controlled substance analogs, notwithstanding any of the
7 provisions of subsections (c), (d), (e), (f), (g) or (h) to
8 the contrary, is guilty of a Class X felony and shall be
9 sentenced to a term of imprisonment as provided in this
10 subsection (a) and fined as provided in subsection (b):
11 (1) (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 heroin, 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 heroin, or
18 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 heroin, or
22 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 any
25 substance containing heroin, or an analog thereof;
26 (2) (A) not less than 6 years and not more than 30
27 years with respect to 15 grams or more but less than
28 100 grams of a substance containing cocaine, or an
29 analog thereof;
30 (B) not less than 9 years and not more than 40
31 years with respect to 100 grams or more but less
32 than 400 grams of a substance containing cocaine, or
33 an analog thereof;
34 (C) not less than 12 years and not more than
-26- LRB9009448RCksam
1 50 years with respect to 400 grams or more but less
2 than 900 grams of a substance containing cocaine, or
3 an analog thereof;
4 (D) not less than 15 years and not more than
5 60 years with respect to 900 grams or more of any
6 substance containing cocaine, or an analog thereof;
7 (3) (A) not less than 6 years and not more than 30
8 years with respect to 15 grams or more but less than
9 100 grams of a substance containing morphine, or an
10 analog thereof;
11 (B) not less than 9 years and not more than 40
12 years with respect to 100 grams or more but less
13 than 400 grams of a substance containing morphine,
14 or an analog thereof;
15 (C) not less than 12 years and not more than
16 50 years with respect to 400 grams or more but less
17 than 900 grams of a substance containing morphine,
18 or an analog thereof;
19 (D) not less than 15 years and not more than
20 60 years with respect to 900 grams or more of a
21 substance containing morphine, or an analog thereof;
22 (4) 200 grams or more of any substance containing
23 peyote, or an analog thereof;
24 (5) 200 grams or more of any substance containing a
25 derivative of barbituric acid or any of the salts of a
26 derivative of barbituric acid, or an analog thereof;
27 (6) 200 grams or more of any substance containing
28 amphetamine or methamphetamine or any salt of an optical
29 isomer of amphetamine or methamphetamine, or an analog
30 thereof;
31 (7) (A) not less than 6 years and not more than 30
32 years with respect to: (i) 15 grams or more but less
33 than 100 grams of a substance containing lysergic
34 acid diethylamide (LSD), or an analog thereof, or
-27- LRB9009448RCksam
1 (ii) 15 or more objects or 15 or more segregated
2 parts of an object or objects but less than 200
3 objects or 200 segregated parts of an object or
4 objects containing in them or having upon them any
5 amounts of any substance containing lysergic acid
6 diethylamide (LSD), or an analog thereof;
7 (B) not less than 9 years and not more than 40
8 years with respect to: (i) 100 grams or more but
9 less than 400 grams of a substance containing
10 lysergic acid diethylamide (LSD), or an analog
11 thereof, or (ii) 200 or more objects or 200 or more
12 segregated parts of an object or objects but less
13 than 600 objects or less than 600 segregated parts
14 of an object or objects containing in them or having
15 upon them any amount of any substance containing
16 lysergic acid diethylamide (LSD), or an analog
17 thereof;
18 (C) not less than 12 years and not more than
19 50 years with respect to: (i) 400 grams or more but
20 less than 900 grams of a substance containing
21 lysergic acid diethylamide (LSD), or an analog
22 thereof, or (ii) 600 or more objects or 600 or more
23 segregated parts of an object or objects but less
24 than 1500 objects or 1500 segregated parts of an
25 object or objects containing in them or having upon
26 them any amount of any substance containing lysergic
27 acid diethylamide (LSD), or an analog thereof;
28 (D) not less than 15 years and not more than
29 60 years with respect to: (i) 900 grams or more of
30 any substance containing lysergic acid diethylamide
31 (LSD), or an analog thereof, or (ii) 1500 or more
32 objects or 1500 or more segregated parts of an
33 object or objects containing in them or having upon
34 them any amount of a substance containing lysergic
-28- LRB9009448RCksam
1 acid diethylamide (LSD), or an analog thereof;
2 (8) 30 grams or more of any substance containing
3 pentazocine or any of the salts, isomers and salts of
4 isomers of pentazocine, or an analog thereof;
5 (9) 30 grams or more of any substance containing
6 methaqualone or any of the salts, isomers and salts of
7 isomers of methaqualone, or an analog thereof;
8 (10) 30 grams or more of any substance
9 containing phencyclidine or any of the salts, isomers
10 and salts of isomers of phencyclidine (PCP), or an
11 analog thereof;
12 (10.5) 30 grams or more of any substance containing
13 ketamine or any of the salts, isomers and salts of
14 isomers of ketamine, or an analog thereof;
15 (11) 200 grams or more of any substance containing
16 any other controlled substance classified in Schedules I
17 or II, or an analog thereof, which is not otherwise
18 included in this subsection.
19 (b) Any person sentenced with respect to violations of
20 paragraph (1), (2), (3) or (7) of subsection (a) involving
21 100 grams or more of the controlled substance named therein,
22 may in addition to the penalties provided therein, be fined
23 an amount not more than $500,000 or the full street value of
24 the controlled or counterfeit substance or controlled
25 substance analog, whichever is greater. The term "street
26 value" shall have the meaning ascribed in Section 110-5 of
27 the Code of Criminal Procedure of 1963. Any person sentenced
28 with respect to any other provision of subsection (a), may in
29 addition to the penalties provided therein, be fined an
30 amount not to exceed $500,000.
31 (c) Any person who violates this Section with regard to
32 the following amounts of controlled or counterfeit substances
33 or controlled substance analogs, notwithstanding any of the
34 provisions of subsections (a), (b), (d), (e), (f), (g) or (h)
-29- LRB9009448RCksam
1 to the contrary, is guilty of a Class 1 felony. The fine for
2 violation of this subsection (c) shall not be more than
3 $250,000:
4 (1) 10 or more grams but less than 15 grams of any
5 substance containing heroin, or an analog thereof;
6 (2) 1 gram or more but less than 15 grams of any
7 substance containing cocaine, or an analog thereof;
8 (3) 10 grams or more but less than 15 grams of any
9 substance containing morphine, or an analog thereof;
10 (4) 50 grams or more but less than 200 grams of any
11 substance containing peyote, or an analog thereof;
12 (5) 50 grams or more but less than 200 grams of any
13 substance containing a derivative of barbituric acid or
14 any of the salts of a derivative of barbituric acid, or
15 an analog thereof;
16 (6) 50 grams or more but less than 200 grams of any
17 substance containing amphetamine or methamphetamine or
18 any salt of an optical isomer of amphetamine or
19 methamphetamine, or an analog thereof;
20 (7) (i) 5 grams or more but less than 15 grams of
21 any substance containing lysergic acid diethylamide
22 (LSD), or an analog thereof, or (ii) more than 10 objects
23 or more than 10 segregated parts of an object or objects
24 but less than 15 objects or less than 15 segregated parts
25 of an object containing in them or having upon them any
26 amount of any substance containing lysergic acid
27 diethylamide (LSD), or an analog thereof;
28 (8) 10 grams or more but less than 30 grams of any
29 substance containing pentazocine or any of the salts,
30 isomers and salts of isomers of pentazocine, or an analog
31 thereof;
32 (9) 10 grams or more but less than 30 grams of any
33 substance containing methaqualone or any of the salts,
34 isomers and salts of isomers of methaqualone, or an
-30- LRB9009448RCksam
1 analog thereof;
2 (10) 10 grams or more but less than 30 grams of any
3 substance containing phencyclidine or any of the salts,
4 isomers and salts of isomers of phencyclidine (PCP), or
5 an analog thereof;
6 (10.5) 10 grams or more but less than 30 grams of
7 any substance containing ketamine or any of the salts,
8 isomers and salts of isomers of ketamine, or an analog
9 thereof;
10 (11) 50 grams or more but less than 200 grams of
11 any substance containing a substance classified in
12 Schedules I or II, or an analog thereof, which is not
13 otherwise included in this subsection.
14 (d) Any person who violates this Section with regard to
15 any other amount of a controlled or counterfeit substance
16 classified in Schedules I or II, or an analog thereof, which
17 is (i) a narcotic drug, or (ii) lysergic acid diethylamide
18 (LSD) or an analog thereof, is guilty of a Class 2 felony.
19 The fine for violation of this subsection (d) shall not be
20 more than $200,000.
21 (e) Any person who violates this Section with regard to
22 any other amount of a controlled or counterfeit substance
23 classified in Schedule I or II, or an analog thereof, which
24 substance is not included under subsection (d) of this
25 Section, is guilty of a Class 3 felony. The fine for
26 violation of this subsection (e) shall not be more than
27 $150,000.
28 (f) Any person who violates this Section with regard to
29 any other amount of a controlled or counterfeit substance
30 classified in Schedule III is guilty of a Class 3 felony. The
31 fine for violation of this subsection (f) shall not be more
32 than $125,000.
33 (g) Any person who violates this Section with regard to
34 any other amount of a controlled or counterfeit substance
-31- LRB9009448RCksam
1 classified in Schedule IV is guilty of a Class 3 felony. The
2 fine for violation of this subsection (g) shall not be more
3 than $100,000.
4 (h) Any person who violates this Section with regard to
5 any other amount of a controlled or counterfeit substance
6 classified in Schedule V is guilty of a Class 3 felony. The
7 fine for violation of this subsection (h) shall not be more
8 than $75,000.
9 (i) This Section does not apply to the manufacture,
10 possession or distribution of a substance in conformance with
11 the provisions of an approved new drug application or an
12 exemption for investigational use within the meaning of
13 Section 505 of the Federal Food, Drug and Cosmetic Act.
14 (Source: P.A. 89-404, eff. 8-20-95; 90-382, eff. 8-15-97.)
15 (720 ILCS 570/402) (from Ch. 56 1/2, par. 1402)
16 Sec. 402. Except as otherwise authorized by this Act, it
17 is unlawful for any person knowingly to possess a controlled
18 or counterfeit substance. A violation of this Act with
19 respect to each of the controlled substances listed herein
20 constitutes a single and separate violation of this Act.
21 (a) Any person who violates this Section with respect to
22 the following controlled or counterfeit substances and
23 amounts, notwithstanding any of the provisions of subsection
24 (c) and (d) to the contrary, is guilty of a Class 1 felony
25 and shall, if sentenced to a term of imprisonment, be
26 sentenced as provided in this subsection (a) and fined as
27 provided in subsection (b):
28 (1) (A) not less than 4 years and not more than 15
29 years with respect to 15 grams or more but less than
30 100 grams of a substance containing heroin;
31 (B) not less than 6 years and not more than 30
32 years with respect to 100 grams or more but less
33 than 400 grams of a substance containing heroin;
-32- LRB9009448RCksam
1 (C) not less than 8 years and not more than 40
2 years with respect to 400 grams or more but less
3 than 900 grams of any substance containing heroin;
4 (D) not less than 10 years and not more than
5 50 years with respect to 900 grams or more of any
6 substance containing heroin;
7 (2) (A) not less than 4 years and not more than 15
8 years with respect to 15 grams or more but less than
9 100 grams of any substance containing cocaine;
10 (B) not less than 6 years and not more than 30
11 years with respect to 100 grams or more but less
12 than 400 grams of any substance containing cocaine;
13 (C) not less than 8 years and not more than 40
14 years with respect to 400 grams or more but less
15 than 900 grams of any substance containing cocaine;
16 (D) not less than 10 years and not more than
17 50 years with respect to 900 grams or more of any
18 substance containing cocaine;
19 (3) (A) not less than 4 years and not more than 15
20 years with respect to 15 grams or more but less than
21 100 grams of any substance containing morphine;
22 (B) not less than 6 years and not more than 30
23 years with respect to 100 grams or more but less
24 than 400 grams of any substance containing morphine;
25 (C) not less than 8 years and not more than 40
26 years with respect to 400 grams or more but less
27 than 900 grams of any substance containing morphine;
28 (D) not less than 10 years and not more than
29 50 years with respect to 900 grams or more of any
30 substance containing morphine;
31 (4) 200 grams or more of any substance containing
32 peyote;
33 (5) 200 grams or more of any substance containing a
-33- LRB9009448RCksam
1 derivative of barbituric acid or any of the salts of a
2 derivative of barbituric acid;
3 (6) 200 grams or more of any substance containing
4 amphetamine or methamphetamine or any salt of an optical
5 isomer of amphetamine or methamphetamine;
6 (7) (A) not less than 4 years and not more than 15
7 years with respect to: (i) 15 grams or more but less
8 than 100 grams of any substance containing lysergic
9 acid diethylamide (LSD), or an analog thereof, or
10 (ii) 15 or more objects or 15 or more segregated
11 parts of an object or objects but less than 200
12 objects or 200 segregated parts of an object or
13 objects containing in them or having upon them any
14 amount of any substance containing lysergic acid
15 diethylamide (LSD), or an analog thereof;
16 (B) not less than 6 years and not more than 30
17 years with respect to: (i) 100 grams or more but
18 less than 400 grams of any substance containing
19 lysergic acid diethylamide (LSD), or an analog
20 thereof, or (ii) 200 or more objects or 200 or more
21 segregated parts of an object or objects but less
22 than 600 objects or less than 600 segregated parts
23 of an object or objects containing in them or having
24 upon them any amount of any substance containing
25 lysergic acid diethylamide (LSD), or an analog
26 thereof;
27 (C) not less than 8 years and not more than 40
28 years with respect to: (i) 400 grams or more but
29 less than 900 grams of any substance containing
30 lysergic acid diethylamide (LSD), or an analog
31 thereof, or (ii) 600 or more objects or 600 or more
32 segregated parts of an object or objects but less
33 than 1500 objects or 1500 segregated parts of an
34 object or objects containing in them or having upon
-34- LRB9009448RCksam
1 them any amount of any substance containing lysergic
2 acid diethylamide (LSD), or an analog thereof;
3 (D) not less than 10 years and not more than
4 50 years with respect to: (i) 900 grams or more of
5 any substance containing lysergic acid diethylamide
6 (LSD), or an analog thereof, or (ii) 1500 or more
7 objects or 1500 or more segregated parts of an
8 object or objects containing in them or having upon
9 them any amount of a substance containing lysergic
10 acid diethylamide (LSD), or an analog thereof;
11 (8) 30 grams or more of any substance containing
12 pentazocine or any of the salts, isomers and salts of
13 isomers of pentazocine, or an analog thereof;
14 (9) 30 grams or more of any substance containing
15 methaqualone or any of the salts, isomers and salts of
16 isomers of methaqualone;
17 (10) 30 grams or more of any substance containing
18 phencyclidine or any of the salts, isomers and salts of
19 isomers of phencyclidine (PCP);
20 (10.5) 30 grams or more of any substance containing
21 ketamine or any of the salts, isomers and salts of
22 isomers of ketamine;
23 (11) 200 grams or more of any substance containing
24 any substance classified as a narcotic drug in Schedules
25 I or II which is not otherwise included in this
26 subsection.
27 (b) Any person sentenced with respect to violations of
28 paragraph (1), (2), (3) or (7) of subsection (a) involving
29 100 grams or more of the controlled substance named therein,
30 may in addition to the penalties provided therein, be fined
31 an amount not to exceed $200,000 or the full street value of
32 the controlled or counterfeit substances, whichever is
33 greater. The term "street value" shall have the meaning
34 ascribed in Section 110-5 of the Code of Criminal Procedure
-35- LRB9009448RCksam
1 of 1963. Any person sentenced with respect to any other
2 provision of subsection (a), may in addition to the penalties
3 provided therein, be fined an amount not to exceed $200,000.
4 (c) Any person who violates this Section with regard to
5 an amount of a controlled or counterfeit substance not set
6 forth in subsection (a) or (d) is guilty of a Class 4 felony.
7 The fine for a violation punishable under this subsection (c)
8 shall not be more than $25,000.
9 (d) Any person who violates this Section with regard to
10 any amount of anabolic steroid is guilty of a Class C
11 misdemeanor for the first offense and a Class B misdemeanor
12 for a subsequent offense committed within 2 years of a prior
13 conviction.
14 Except as otherwise authorized by this Act, it is
15 unlawful for any person knowingly to possess a controlled or
16 counterfeit substance. A violation of this Act with respect
17 to each of the controlled substances listed herein
18 constitutes a single and separate violation of this Act.
19 (a) Any person who violates this Section with respect to
20 the following controlled or counterfeit substances and
21 amounts, notwithstanding any of the provisions of subsection
22 (c) and (d) to the contrary, is guilty of a Class 1 felony
23 and shall, if sentenced to a term of imprisonment, be
24 sentenced as provided in this subsection (a) and fined as
25 provided in subsection (b):
26 (1) (A) not less than 4 years and not more than 15
27 years with respect to 15 grams or more but less than
28 100 grams of a substance containing heroin;
29 (B) not less than 6 years and not more than 30
30 years with respect to 100 grams or more but less
31 than 400 grams of a substance containing heroin;
32 (C) not less than 8 years and not more than 40
33 years with respect to 400 grams or more but less
34 than 900 grams of any substance containing heroin;
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1 (D) not less than 10 years and not more than
2 50 years with respect to 900 grams or more of any
3 substance containing heroin;
4 (2) (A) not less than 4 years and not more than 15
5 years with respect to 15 grams or more but less than
6 100 grams of any substance containing cocaine;
7 (B) not less than 6 years and not more than 30
8 years with respect to 100 grams or more but less
9 than 400 grams of any substance containing cocaine;
10 (C) not less than 8 years and not more than 40
11 years with respect to 400 grams or more but less
12 than 900 grams of any substance containing cocaine;
13 (D) not less than 10 years and not more than
14 50 years with respect to 900 grams or more of any
15 substance containing cocaine;
16 (3) (A) not less than 4 years and not more than 15
17 years with respect to 15 grams or more but less than
18 100 grams of any substance containing morphine;
19 (B) not less than 6 years and not more than 30
20 years with respect to 100 grams or more but less
21 than 400 grams of any substance containing morphine;
22 (C) not less than 8 years and not more than 40
23 years with respect to 400 grams or more but less
24 than 900 grams of any substance containing morphine;
25 (D) not less than 10 years and not more than
26 50 years with respect to 900 grams or more of any
27 substance containing morphine;
28 (4) 200 grams or more of any substance containing
29 peyote;
30 (5) 200 grams or more of any substance containing a
31 derivative of barbituric acid or any of the salts of a
32 derivative of barbituric acid;
33 (6) 200 grams or more of any substance containing
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1 amphetamine or methamphetamine or any salt of an optical
2 isomer of amphetamine or methamphetamine;
3 (7) (A) not less than 4 years and not more than 15
4 years with respect to: (i) 15 grams or more but less
5 than 100 grams of any substance containing lysergic
6 acid diethylamide (LSD), or an analog thereof, or
7 (ii) 15 or more objects or 15 or more segregated
8 parts of an object or objects but less than 200
9 objects or 200 segregated parts of an object or
10 objects containing in them or having upon them any
11 amount of any substance containing lysergic acid
12 diethylamide (LSD), or an analog thereof;
13 (B) not less than 6 years and not more than 30
14 years with respect to: (i) 100 grams or more but
15 less than 400 grams of any substance containing
16 lysergic acid diethylamide (LSD), or an analog
17 thereof, or (ii) 200 or more objects or 200 or more
18 segregated parts of an object or objects but less
19 than 600 objects or less than 600 segregated parts
20 of an object or objects containing in them or having
21 upon them any amount of any substance containing
22 lysergic acid diethylamide (LSD), or an analog
23 thereof;
24 (C) not less than 8 years and not more than 40
25 years with respect to: (i) 400 grams or more but
26 less than 900 grams of any substance containing
27 lysergic acid diethylamide (LSD), or an analog
28 thereof, or (ii) 600 or more objects or 600 or more
29 segregated parts of an object or objects but less
30 than 1500 objects or 1500 segregated parts of an
31 object or objects containing in them or having upon
32 them any amount of any substance containing lysergic
33 acid diethylamide (LSD), or an analog thereof;
34 (D) not less than 10 years and not more than
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1 50 years with respect to: (i) 900 grams or more of
2 any substance containing lysergic acid diethylamide
3 (LSD), or an analog thereof, or (ii) 1500 or more
4 objects or 1500 or more segregated parts of an
5 object or objects containing in them or having upon
6 them any amount of a substance containing lysergic
7 acid diethylamide (LSD), or an analog thereof;
8 (8) 30 grams or more of any substance containing
9 pentazocine or any of the salts, isomers and salts of
10 isomers of pentazocine, or an analog thereof;
11 (9) 30 grams or more of any substance containing
12 methaqualone or any of the salts, isomers and salts of
13 isomers of methaqualone;
14 (10) 30 grams or more of any substance containing
15 phencyclidine or any of the salts, isomers and salts of
16 isomers of phencyclidine (PCP);
17 (10.5) 30 grams or more of any substance containing
18 ketamine or any of the salts, isomers and salts of
19 isomers of ketamine;
20 (11) 200 grams or more of any substance containing
21 any substance classified as a narcotic drug in Schedules
22 I or II which is not otherwise included in this
23 subsection.
24 (b) Any person sentenced with respect to violations of
25 paragraph (1), (2), (3) or (7) of subsection (a) involving
26 100 grams or more of the controlled substance named therein,
27 may in addition to the penalties provided therein, be fined
28 an amount not to exceed $200,000 or the full street value of
29 the controlled or counterfeit substances, whichever is
30 greater. The term "street value" shall have the meaning
31 ascribed in Section 110-5 of the Code of Criminal Procedure
32 of 1963. Any person sentenced with respect to any other
33 provision of subsection (a), may in addition to the penalties
34 provided therein, be fined an amount not to exceed $200,000.
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1 (c) Any person who violates this Section with regard to
2 an amount of a controlled or counterfeit substance not set
3 forth in subsection (a) or (d) is guilty of a Class 4 felony.
4 The fine for a violation punishable under this subsection (c)
5 shall not be more than $25,000.
6 (d) Any person who violates this Section with regard to
7 any amount of anabolic steroid is guilty of a Class C
8 misdemeanor for the first offense and a Class B misdemeanor
9 for a subsequent offense committed within 2 years of a prior
10 conviction.
11 (Source: P.A. 89-404, eff. 8-20-95; 90-382, eff. 8-15-97;
12 90-384, eff. 1-1-98; revised 11-13-97.)
13 (720 ILCS 570/405.1) (from Ch. 56 1/2, par. 1405.1)
14 Sec. 405.1. (a) Elements of the offense. A person
15 commits criminal drug conspiracy when, with the intent that
16 an offense set forth in Section 401, Section 402, or Section
17 407 of this Act be committed, he agrees with another to the
18 commission of that offense. No person may be convicted of
19 conspiracy to commit such an offense unless an act in
20 furtherance of such agreement is alleged and proved to have
21 been committed by him or by a co-conspirator.
22 (b) Co-conspirators. It shall not be a defense to
23 conspiracy that the person or persons with whom the accused
24 is alleged to have conspired:
25 (1) Has not been prosecuted or convicted, or
26 (2) Has been convicted of a different offense, or
27 (3) Is not amenable to justice, or
28 (4) Has been acquitted, or
29 (5) Lacked the capacity to commit an offense.
30 (c) Sentence. A person convicted of criminal drug
31 conspiracy may be fined or imprisoned or both, but any term
32 of imprisonment imposed shall be not less than the minimum
33 nor more than the maximum provided for the offense which is
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1 the object of the conspiracy.
2 (a) Elements of the offense. A person commits criminal
3 drug conspiracy when, with the intent that an offense set
4 forth in Section 401, Section 402, or Section 407 of this Act
5 be committed, he agrees with another to the commission of
6 that offense. No person may be convicted of conspiracy to
7 commit such an offense unless an act in furtherance of such
8 agreement is alleged and proved to have been committed by him
9 or by a co-conspirator.
10 (b) Co-conspirators. It shall not be a defense to
11 conspiracy that the person or persons with whom the accused
12 is alleged to have conspired:
13 (1) Has not been prosecuted or convicted, or
14 (2) Has been convicted of a different offense, or
15 (3) Is not amenable to justice, or
16 (4) Has been acquitted, or
17 (5) Lacked the capacity to commit an offense.
18 (c) Sentence. A person convicted of criminal drug
19 conspiracy may be fined or imprisoned or both, but any term
20 of imprisonment imposed shall be not less than the minimum
21 nor more than the maximum provided for the offense which is
22 the object of the conspiracy.
23 (Source: P.A. 89-404, eff. 8-20-95.)
24 (720 ILCS 570/505) (from Ch. 56 1/2, par. 1505)
25 Sec. 505. (a) The following are subject to forfeiture:
26 (1) all substances which have been manufactured,
27 distributed, dispensed, or possessed in violation of this
28 Act;
29 (2) all raw materials, products and equipment of
30 any kind which are used, or intended for use in
31 manufacturing, distributing, dispensing, administering or
32 possessing any substance in violation of this Act;
33 (3) all conveyances, including aircraft, vehicles
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1 or vessels, which are used, or intended for use, to
2 transport, or in any manner to facilitate the
3 transportation, sale, receipt, possession, or concealment
4 of property described in paragraphs (1) and (2), but:
5 (i) no conveyance used by any person as a
6 common carrier in the transaction of business as a
7 common carrier is subject to forfeiture under this
8 Section unless it appears that the owner or other
9 person in charge of the conveyance is a consenting
10 party or privy to a violation of this Act;
11 (ii) no conveyance is subject to forfeiture
12 under this Section by reason of any act or omission
13 which the owner proves to have been committed or
14 omitted without his knowledge or consent;
15 (iii) a forfeiture of a conveyance encumbered
16 by a bona fide security interest is subject to the
17 interest of the secured party if he neither had
18 knowledge of nor consented to the act or omission;
19 (4) all money, things of value, books, records, and
20 research products and materials including formulas,
21 microfilm, tapes, and data which are used, or intended to
22 be used in violation of this Act;
23 (5) everything of value furnished, or intended to
24 be furnished, in exchange for a substance in violation of
25 this Act, all proceeds traceable to such an exchange, and
26 all moneys, negotiable instruments, and securities used,
27 or intended to be used, to commit or in any manner to
28 facilitate any violation of this Act;
29 (6) all real property, including any right, title,
30 and interest (including, but not limited to, any
31 leasehold interest or the beneficial interest in a land
32 trust) in the whole of any lot or tract of land and any
33 appurtenances or improvements, which is used or intended
34 to be used, in any manner or part, to commit, or in any
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1 manner to facilitate the commission of, any violation or
2 act that constitutes a violation of Section 401 or 405 of
3 this Act or that is the proceeds of any violation or act
4 that constitutes a violation of Section 401 or 405 of
5 this Act.
6 (b) Property subject to forfeiture under this Act may be
7 seized by the Director or any peace officer upon process or
8 seizure warrant issued by any court having jurisdiction over
9 the property. Seizure by the Director or any peace officer
10 without process may be made:
11 (1) if the seizure is incident to inspection under
12 an administrative inspection warrant;
13 (2) if the property subject to seizure has been the
14 subject of a prior judgment in favor of the State in a
15 criminal proceeding, or in an injunction or forfeiture
16 proceeding based upon this Act or the Drug Asset
17 Forfeiture Procedure Act;
18 (3) if there is probable cause to believe that the
19 property is directly or indirectly dangerous to health or
20 safety;
21 (4) if there is probable cause to believe that the
22 property is subject to forfeiture under this Act and the
23 property is seized under circumstances in which a
24 warrantless seizure or arrest would be reasonable; or
25 (5) in accordance with the Code of Criminal
26 Procedure of 1963.
27 (c) In the event of seizure pursuant to subsection (b),
28 forfeiture proceedings shall be instituted in accordance with
29 the Drug Asset Forfeiture Procedure Act.
30 (d) Property taken or detained under this Section shall
31 not be subject to replevin, but is deemed to be in the
32 custody of the Director subject only to the order and
33 judgments of the circuit court having jurisdiction over the
34 forfeiture proceedings and the decisions of the State's
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1 Attorney under the Drug Asset Forfeiture Procedure Act. When
2 property is seized under this Act, the seizing agency shall
3 promptly conduct an inventory of the seized property and
4 estimate the property's value, and shall forward a copy of
5 the inventory of seized property and the estimate of the
6 property's value to the Director. Upon receiving notice of
7 seizure, the Director may:
8 (1) place the property under seal;
9 (2) remove the property to a place designated by
10 the Director;
11 (3) keep the property in the possession of the
12 seizing agency;
13 (4) remove the property to a storage area for
14 safekeeping or, if the property is a negotiable
15 instrument or money and is not needed for evidentiary
16 purposes, deposit it in an interest bearing account;
17 (5) place the property under constructive seizure
18 by posting notice of pending forfeiture on it, by giving
19 notice of pending forfeiture to its owners and interest
20 holders, or by filing notice of pending forfeiture in any
21 appropriate public record relating to the property; or
22 (6) provide for another agency or custodian,
23 including an owner, secured party, or lienholder, to take
24 custody of the property upon the terms and conditions set
25 by the Director.
26 (e) If the Department of Professional Regulation
27 suspends or revokes a registration, all controlled substances
28 owned or possessed by the registrant at the time of
29 suspension or the effective date of the revocation order may
30 be placed under seal. No disposition may be made of
31 substances under seal until the time for taking an appeal has
32 elapsed or until all appeals have been concluded unless a
33 court, upon application therefor, orders the sale of
34 perishable substances and the deposit of the proceeds of the
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1 sale with the court. Upon a revocation rule becoming final,
2 all substances may be forfeited to the Department of
3 Professional Regulation.
4 (f) When property is forfeited under this Act the
5 Director shall sell all such property unless such property is
6 required by law to be destroyed or is harmful to the public,
7 and shall distribute the proceeds of the sale, together with
8 any moneys forfeited or seized, in accordance with subsection
9 (g). However, upon the application of the seizing agency or
10 prosecutor who was responsible for the investigation, arrest
11 or arrests and prosecution which lead to the forfeiture, the
12 Director may return any item of forfeited property to the
13 seizing agency or prosecutor for official use in the
14 enforcement of laws relating to cannabis or controlled
15 substances, if the agency or prosecutor can demonstrate that
16 the item requested would be useful to the agency or
17 prosecutor in their enforcement efforts. When any real
18 property returned to the seizing agency is sold by the agency
19 or its unit of government, the proceeds of the sale shall be
20 delivered to the Director and distributed in accordance with
21 subsection (g).
22 (g) All monies and the sale proceeds of all other
23 property forfeited and seized under this Act shall be
24 distributed as follows:
25 (1) 65% shall be distributed to the metropolitan
26 enforcement group, local, municipal, county, or state law
27 enforcement agency or agencies which conducted or
28 participated in the investigation resulting in the
29 forfeiture. The distribution shall bear a reasonable
30 relationship to the degree of direct participation of the
31 law enforcement agency in the effort resulting in the
32 forfeiture, taking into account the total value of the
33 property forfeited and the total law enforcement effort
34 with respect to the violation of the law upon which the
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1 forfeiture is based. Amounts distributed to the agency or
2 agencies shall be used for the enforcement of laws
3 governing cannabis and controlled substances, except that
4 amounts distributed to the Secretary of State shall be
5 deposited into the Secretary of State Evidence Fund to be
6 used as provided in Section 2-115 of the Illinois Vehicle
7 Code.
8 (2)(i) 12.5% shall be distributed to the Office of
9 the State's Attorney of the county in which the
10 prosecution resulting in the forfeiture was instituted,
11 deposited in a special fund in the county treasury and
12 appropriated to the State's Attorney for use in the
13 enforcement of laws governing cannabis and controlled
14 substances. In counties over 3,000,000 population, 25%
15 will be distributed to the Office of the State's Attorney
16 for use in the enforcement of laws governing cannabis and
17 controlled substances. If the prosecution is undertaken
18 solely by the Attorney General, the portion provided
19 hereunder shall be distributed to the Attorney General
20 for use in the enforcement of laws governing cannabis and
21 controlled substances.
22 (ii) 12.5% shall be distributed to the Office of
23 the State's Attorneys Appellate Prosecutor and deposited
24 in the Narcotics Profit Forfeiture Fund of that office to
25 be used for additional expenses incurred in the
26 investigation, prosecution and appeal of cases arising
27 under laws governing cannabis and controlled substances.
28 The Office of the State's Attorneys Appellate Prosecutor
29 shall not receive distribution from cases brought in
30 counties with over 3,000,000 population.
31 (3) 10% shall be retained by the Department of
32 State Police for expenses related to the administration
33 and sale of seized and forfeited property.
34 (h) Species of plants from which controlled substances
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1 in Schedules I and II may be derived which have been planted
2 or cultivated in violation of this Act, or of which the
3 owners or cultivators are unknown, or which are wild growths,
4 may be seized and summarily forfeited to the State. The
5 failure, upon demand by the Director or any peace officer, of
6 the person in occupancy or in control of land or premises
7 upon which the species of plants are growing or being stored,
8 to produce registration, or proof that he is the holder
9 thereof, constitutes authority for the seizure and forfeiture
10 of the plants.
11 (a) The following are subject to forfeiture:
12 (1) all substances which have been manufactured,
13 distributed, dispensed, or possessed in violation of this
14 Act;
15 (2) all raw materials, products and equipment of
16 any kind which are used, or intended for use in
17 manufacturing, distributing, dispensing, administering or
18 possessing any substance in violation of this Act;
19 (3) all conveyances, including aircraft, vehicles
20 or vessels, which are used, or intended for use, to
21 transport, or in any manner to facilitate the
22 transportation, sale, receipt, possession, or concealment
23 of property described in paragraphs (1) and (2), but:
24 (i) no conveyance used by any person as a
25 common carrier in the transaction of business as a
26 common carrier is subject to forfeiture under this
27 Section unless it appears that the owner or other
28 person in charge of the conveyance is a consenting
29 party or privy to a violation of this Act;
30 (ii) no conveyance is subject to forfeiture
31 under this Section by reason of any act or omission
32 which the owner proves to have been committed or
33 omitted without his knowledge or consent;
34 (iii) a forfeiture of a conveyance encumbered
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1 by a bona fide security interest is subject to the
2 interest of the secured party if he neither had
3 knowledge of nor consented to the act or omission;
4 (4) all money, things of value, books, records, and
5 research products and materials including formulas,
6 microfilm, tapes, and data which are used, or intended to
7 be used in violation of this Act;
8 (5) everything of value furnished, or intended to
9 be furnished, in exchange for a substance in violation of
10 this Act, all proceeds traceable to such an exchange, and
11 all moneys, negotiable instruments, and securities used,
12 or intended to be used, to commit or in any manner to
13 facilitate any violation of this Act;
14 (6) all real property, including any right, title,
15 and interest (including, but not limited to, any
16 leasehold interest or the beneficial interest in a land
17 trust) in the whole of any lot or tract of land and any
18 appurtenances or improvements, which is used or intended
19 to be used, in any manner or part, to commit, or in any
20 manner to facilitate the commission of, any violation or
21 act that constitutes a violation of Section 401 or 405 of
22 this Act or that is the proceeds of any violation or act
23 that constitutes a violation of Section 401 or 405 of
24 this Act.
25 (b) Property subject to forfeiture under this Act may be
26 seized by the Director or any peace officer upon process or
27 seizure warrant issued by any court having jurisdiction over
28 the property. Seizure by the Director or any peace officer
29 without process may be made:
30 (1) if the seizure is incident to inspection under
31 an administrative inspection warrant;
32 (2) if the property subject to seizure has been the
33 subject of a prior judgment in favor of the State in a
34 criminal proceeding, or in an injunction or forfeiture
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1 proceeding based upon this Act or the Drug Asset
2 Forfeiture Procedure Act;
3 (3) if there is probable cause to believe that the
4 property is directly or indirectly dangerous to health or
5 safety;
6 (4) if there is probable cause to believe that the
7 property is subject to forfeiture under this Act and the
8 property is seized under circumstances in which a
9 warrantless seizure or arrest would be reasonable; or
10 (5) in accordance with the Code of Criminal
11 Procedure of 1963.
12 (c) In the event of seizure pursuant to subsection (b),
13 forfeiture proceedings shall be instituted in accordance with
14 the Drug Asset Forfeiture Procedure Act.
15 (d) Property taken or detained under this Section shall
16 not be subject to replevin, but is deemed to be in the
17 custody of the Director subject only to the order and
18 judgments of the circuit court having jurisdiction over the
19 forfeiture proceedings and the decisions of the State's
20 Attorney under the Drug Asset Forfeiture Procedure Act. When
21 property is seized under this Act, the seizing agency shall
22 promptly conduct an inventory of the seized property and
23 estimate the property's value, and shall forward a copy of
24 the inventory of seized property and the estimate of the
25 property's value to the Director. Upon receiving notice of
26 seizure, the Director may:
27 (1) place the property under seal;
28 (2) remove the property to a place designated by
29 the Director;
30 (3) keep the property in the possession of the
31 seizing agency;
32 (4) remove the property to a storage area for
33 safekeeping or, if the property is a negotiable
34 instrument or money and is not needed for evidentiary
-49- LRB9009448RCksam
1 purposes, deposit it in an interest bearing account;
2 (5) place the property under constructive seizure
3 by posting notice of pending forfeiture on it, by giving
4 notice of pending forfeiture to its owners and interest
5 holders, or by filing notice of pending forfeiture in any
6 appropriate public record relating to the property; or
7 (6) provide for another agency or custodian,
8 including an owner, secured party, or lienholder, to take
9 custody of the property upon the terms and conditions set
10 by the Director.
11 (e) If the Department of Professional Regulation
12 suspends or revokes a registration, all controlled substances
13 owned or possessed by the registrant at the time of
14 suspension or the effective date of the revocation order may
15 be placed under seal. No disposition may be made of
16 substances under seal until the time for taking an appeal has
17 elapsed or until all appeals have been concluded unless a
18 court, upon application therefor, orders the sale of
19 perishable substances and the deposit of the proceeds of the
20 sale with the court. Upon a revocation rule becoming final,
21 all substances may be forfeited to the Department of
22 Professional Regulation.
23 (f) When property is forfeited under this Act the
24 Director shall sell all such property unless such property is
25 required by law to be destroyed or is harmful to the public,
26 and shall distribute the proceeds of the sale, together with
27 any moneys forfeited or seized, in accordance with subsection
28 (g). However, upon the application of the seizing agency or
29 prosecutor who was responsible for the investigation, arrest
30 or arrests and prosecution which lead to the forfeiture, the
31 Director may return any item of forfeited property to the
32 seizing agency or prosecutor for official use in the
33 enforcement of laws relating to cannabis or controlled
34 substances, if the agency or prosecutor can demonstrate that
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1 the item requested would be useful to the agency or
2 prosecutor in their enforcement efforts. When any real
3 property returned to the seizing agency is sold by the agency
4 or its unit of government, the proceeds of the sale shall be
5 delivered to the Director and distributed in accordance with
6 subsection (g).
7 (g) All monies and the sale proceeds of all other
8 property forfeited and seized under this Act shall be
9 distributed as follows:
10 (1) 65% shall be distributed to the metropolitan
11 enforcement group, local, municipal, county, or state law
12 enforcement agency or agencies which conducted or
13 participated in the investigation resulting in the
14 forfeiture. The distribution shall bear a reasonable
15 relationship to the degree of direct participation of the
16 law enforcement agency in the effort resulting in the
17 forfeiture, taking into account the total value of the
18 property forfeited and the total law enforcement effort
19 with respect to the violation of the law upon which the
20 forfeiture is based. Amounts distributed to the agency or
21 agencies shall be used for the enforcement of laws
22 governing cannabis and controlled substances, except that
23 amounts distributed to the Secretary of State shall be
24 deposited into the Secretary of State Evidence Fund to be
25 used as provided in Section 2-115 of the Illinois Vehicle
26 Code.
27 (2)(i) 12.5% shall be distributed to the Office of
28 the State's Attorney of the county in which the
29 prosecution resulting in the forfeiture was instituted,
30 deposited in a special fund in the county treasury and
31 appropriated to the State's Attorney for use in the
32 enforcement of laws governing cannabis and controlled
33 substances. In counties over 3,000,000 population, 25%
34 will be distributed to the Office of the State's Attorney
-51- LRB9009448RCksam
1 for use in the enforcement of laws governing cannabis and
2 controlled substances. If the prosecution is undertaken
3 solely by the Attorney General, the portion provided
4 hereunder shall be distributed to the Attorney General
5 for use in the enforcement of laws governing cannabis and
6 controlled substances.
7 (ii) 12.5% shall be distributed to the Office of
8 the State's Attorneys Appellate Prosecutor and deposited
9 in the Narcotics Profit Forfeiture Fund of that office to
10 be used for additional expenses incurred in the
11 investigation, prosecution and appeal of cases arising
12 under laws governing cannabis and controlled substances.
13 The Office of the State's Attorneys Appellate Prosecutor
14 shall not receive distribution from cases brought in
15 counties with over 3,000,000 population.
16 (3) 10% shall be retained by the Department of
17 State Police for expenses related to the administration
18 and sale of seized and forfeited property.
19 (h) Species of plants from which controlled substances
20 in Schedules I and II may be derived which have been planted
21 or cultivated in violation of this Act, or of which the
22 owners or cultivators are unknown, or which are wild growths,
23 may be seized and summarily forfeited to the State. The
24 failure, upon demand by the Director or any peace officer, of
25 the person in occupancy or in control of land or premises
26 upon which the species of plants are growing or being stored,
27 to produce registration, or proof that he is the holder
28 thereof, constitutes authority for the seizure and forfeiture
29 of the plants.
30 (Source: P.A. 88-517; 89-404, eff. 8-20-95.)
31 Section 30. The Code of Criminal Procedure of 1963 is
32 amended by changing Section 107-4 as follows:
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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- LRB9009448RCksam
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. The Drug Asset Forfeiture Procedure Act is
33 amended by changing Section 9 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
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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. The Unified Code of Corrections is amended
11 by changing Sections 3-6-3, 5-1-11, 5-2-4, and 5-4-1 and
12 adding Section 3-6-3.1 as follows:"; and
13 on page 19, by inserting between lines 2 and 3 the following:
14 "(730 ILCS 5/5-1-11) (from Ch. 38, par. 1005-1-11)
15 Sec. 5-1-11. Insanity.
16 "Insanity" means the lack of a substantial capacity to
17 appreciate the criminality of one's conduct as a result of
18 mental disorder or mental defect.
19 Insanity.
20 "Insanity" means the lack of a substantial capacity to
21 appreciate the criminality of one's conduct as a result of
22 mental disorder or mental defect.
23 (Source: P.A. 89-404, eff. 8-20-95.)
24 (730 ILCS 5/5-2-4) (from Ch. 38, par. 1005-2-4)
25 Sec. 5-2-4. Proceedings after Acquittal by Reason of
26 Insanity.
27 (a) After a finding or verdict of not guilty by reason
28 of insanity under Sections 104-25, 115-3 or 115-4 of The Code
29 of Criminal Procedure of 1963, the defendant shall be ordered
30 to the Department of Human Services for an evaluation as to
31 whether he is subject to involuntary admission or in need of
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1 mental health services. The order shall specify whether the
2 evaluation shall be conducted on an inpatient or outpatient
3 basis. If the evaluation is to be conducted on an inpatient
4 basis, the defendant shall be placed in a secure setting
5 unless the Court determines that there are compelling reasons
6 why such placement is not necessary. After the evaluation and
7 during the period of time required to determine the
8 appropriate placement, the defendant shall remain in jail.
9 Upon completion of the placement process the sheriff shall
10 be notified and shall transport the defendant to the
11 designated facility.
12 The Department shall provide the Court with a report of
13 its evaluation within 30 days of the date of this order. The
14 Court shall hold a hearing as provided under the Mental
15 Health and Developmental Disabilities Code to determine if
16 the individual is: (a) subject to involuntary admission; (b)
17 in need of mental health services on an inpatient basis; (c)
18 in need of mental health services on an outpatient basis; (d)
19 a person not in need of mental health services. The Court
20 shall enter its findings.
21 If the defendant is found to be subject to involuntary
22 admission or in need of mental health services on an
23 inpatient care basis, the Court shall order the defendant to
24 the Department of Human Services. The defendant shall be
25 placed in a secure setting unless the Court determines that
26 there are compelling reasons why such placement is not
27 necessary. Such defendants placed in a secure setting shall
28 not be permitted outside the facility's housing unit unless
29 escorted or accompanied by personnel of the Department of
30 Human Services or with the prior approval of the Court for
31 unsupervised on-grounds privileges as provided herein. Any
32 defendant placed in a secure setting pursuant to this
33 Section, transported to court hearings or other necessary
34 appointments off facility grounds by personnel of the
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1 Department of Human Services, may be placed in security
2 devices or otherwise secured during the period of
3 transportation to assure secure transport of the defendant
4 and the safety of Department of Human Services personnel and
5 others. These security measures shall not constitute
6 restraint as defined in the Mental Health and Developmental
7 Disabilities Code. If the defendant is found to be in need
8 of mental health services, but not on an inpatient care
9 basis, the Court shall conditionally release the defendant,
10 under such conditions as set forth in this Section as will
11 reasonably assure the defendant's satisfactory progress in
12 treatment or rehabilitation and the safety of the defendant
13 or others. If the Court finds the person not in need of
14 mental health services, then the Court shall order the
15 defendant discharged from custody.
16 (1) Definitions: For the purposes of this Section:
17 (A) "Subject to involuntary admission" means: A
18 defendant has been found not guilty by reason of
19 insanity; and
20 (i) who is mentally ill and who because of his
21 mental illness is reasonably expected to inflict
22 serious physical harm upon himself or another in the
23 near future; or
24 (ii) who is mentally ill and who because of
25 his illness is unable to provide for his basic
26 physical needs so as to guard himself from serious
27 harm.
28 (B) "In need of mental health services on an
29 inpatient basis" means: a defendant who has been found
30 not guilty by reason of insanity who is not subject to
31 involuntary admission but who is reasonably expected to
32 inflict serious physical harm upon himself or another and
33 who would benefit from inpatient care or is in need of
34 inpatient care.
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1 (C) "In need of mental health services on an
2 outpatient basis" means: a defendant who has been found
3 not guilty by reason of insanity who is not subject to
4 involuntary admission or in need of mental health
5 services on an inpatient basis, but is in need of
6 outpatient care, drug and/or alcohol rehabilitation
7 programs, community adjustment programs, individual,
8 group, or family therapy, or chemotherapy.
9 (D) "Conditional Release" means: the release from
10 either the custody of the Department of Human Services or
11 the custody of the Court of a person who has been found
12 not guilty by reason of insanity under such conditions as
13 the court may impose which reasonably assure the
14 defendant's satisfactory progress in treatment or
15 habilitation and the safety of the defendant and others.
16 The Court shall consider such terms and conditions which
17 may include, but need not be limited to, outpatient care,
18 alcoholic and drug rehabilitation programs, community
19 adjustment programs, individual, group, family, and
20 chemotherapy, periodic checks with the legal authorities
21 and/or the Department of Human Services. The person or
22 facility rendering the outpatient care shall be required
23 to periodically report to the Court on the progress of
24 the Defendant. Such conditional release shall be for a
25 period of five years, unless the defendant, the person or
26 facility rendering the treatment, therapy, program or
27 outpatient care, or the State's attorney petitions the
28 Court for an extension of the conditional release period
29 for an additional three years. Upon receipt of such a
30 petition, the Court shall hold a hearing consistent with
31 the provisions of this paragraph (a) and paragraph (f) of
32 this Section, shall determine whether the defendant
33 should continue to be subject to the terms of conditional
34 release, and shall enter an order either extending the
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1 defendant's period of conditional release for a single
2 additional three year period or discharging the
3 defendant. In no event shall the defendant's period of
4 conditional release exceed eight years. These provisions
5 for extension of conditional release shall only apply to
6 defendants conditionally released on or after July 1,
7 1979. However the extension provisions of Public Act
8 83-1449 apply only to defendants charged with a forcible
9 felony.
10 (E) "Facility director" means the chief officer of
11 a mental health or developmental disabilities facility or
12 his or her designee or the supervisor of a program of
13 treatment or habilitation or his or her designee.
14 "Designee" may include a physician, clinical
15 psychologist, social worker, or nurse.
16 (b) If the Court finds the defendant subject to
17 involuntary admission or in need of mental health services on
18 an inpatient basis, the admission, detention, care, treatment
19 or habilitation, review proceedings, and discharge of the
20 defendant after such order shall be under the Mental Health
21 and Developmental Disabilities Code, except that the initial
22 order for admission of a defendant acquitted of a felony by
23 reason of insanity shall be for an indefinite period of time.
24 Such period of commitment shall not exceed the maximum length
25 of time that the defendant would have been required to serve,
26 less credit for good behavior, before becoming eligible for
27 release had he been convicted of and received the maximum
28 sentence for the most serious crime for which he has been
29 acquitted by reason of insanity. The Court shall determine
30 the maximum period of commitment by an appropriate order.
31 During this period of time, the defendant shall not be
32 permitted to be in the community in any manner, including but
33 not limited to off-grounds privileges, with or without escort
34 by personnel of the Department of Human Services,
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1 unsupervised on-grounds privileges, discharge or conditional
2 or temporary release, except by a plan as provided in this
3 Section. In no event shall a defendant's continued
4 unauthorized absence be a basis for discharge. Not more than
5 30 days after admission and every 60 days thereafter so long
6 as the initial order remains in effect, the facility director
7 shall file a treatment plan with the court. Such plan shall
8 include an evaluation of the defendant's progress and the
9 extent to which he is benefiting from treatment. Such plan
10 may also include unsupervised on-grounds privileges,
11 off-grounds privileges (with or without escort by personnel
12 of the Department of Human Services), home visits and
13 participation in work programs, but only where such
14 privileges have been approved by specific court order, which
15 order may include such conditions on the defendant as the
16 Court may deem appropriate and necessary to reasonably assure
17 the defendant's satisfactory progress in treatment and the
18 safety of the defendant and others.
19 (c) Every defendant acquitted of a felony by reason of
20 insanity and subsequently found to be subject to involuntary
21 admission or in need of mental health services shall be
22 represented by counsel in all proceedings under this Section
23 and under the Mental Health and Developmental Disabilities
24 Code.
25 (1) The court shall appoint as counsel the public
26 defender or an attorney licensed by this State.
27 (2) Upon filing with the court of a verified
28 statement of legal services rendered by the private
29 attorney appointed pursuant to paragraph (1) of this
30 subsection, the court shall determine a reasonable fee
31 for such services. If the defendant is unable to pay the
32 fee, the court shall enter an order upon the State to pay
33 the entire fee or such amount as the defendant is unable
34 to pay from funds appropriated by the General Assembly
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1 for that purpose.
2 (d) When the facility director determines that:
3 (1) the defendant is no longer subject to
4 involuntary admission or in need of mental health
5 services on an inpatient basis; and
6 (2) the defendant may be conditionally released
7 because he or she is still in need of mental health
8 services or that the defendant may be discharged as not
9 in need of any mental health services; or
10 (3) the defendant no longer requires placement in a
11 secure setting;
12 the facility director shall give written notice to the Court,
13 State's Attorney and defense attorney. Such notice shall set
14 forth in detail the basis for the recommendation of the
15 facility director, and specify clearly the recommendations,
16 if any, of the facility director, concerning conditional
17 release. Within 30 days of the notification by the facility
18 director, the Court shall set a hearing and make a finding as
19 to whether the defendant is:
20 (i) subject to involuntary admission; or
21 (ii) in need of mental health services in the form
22 of inpatient care; or
23 (iii) in need of mental health services but not
24 subject to involuntary admission or inpatient care; or
25 (iv) no longer in need of mental health services;
26 or
27 (v) no longer requires placement in a secure
28 setting.
29 Upon finding by the Court, the Court shall enter its
30 findings and such appropriate order as provided in subsection
31 (a) of this Section.
32 (e) A defendant admitted pursuant to this Section, or
33 any person on his behalf, may file a petition for transfer
34 to a non-secure setting within the Department of Human
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1 Services or discharge or conditional release under the
2 standards of this Section in the court which rendered the
3 verdict. Upon receipt of a petition for transfer to a
4 non-secure setting or discharge or conditional release, the
5 court shall set a hearing to be held within 120 days.
6 Thereafter, no new petition may be filed for 120 days without
7 leave of the court.
8 (f) The court shall direct that notice of the time and
9 place of the hearing be served upon the defendant, the
10 facility director, the State's Attorney, and the defendant's
11 attorney. If requested by either the State or the defense or
12 if the Court feels it is appropriate, an impartial
13 examination of the defendant by a psychiatrist or clinical
14 psychologist as defined in Section 1-103 of the Mental Health
15 and Developmental Disabilities Code who is not in the employ
16 of the Department of Human Services shall be ordered, and the
17 report considered at the time of the hearing.
18 (g) The findings of the court shall be established by
19 clear and convincing evidence. The burden of proof and the
20 burden of going forth with the evidence rest with the State
21 when a hearing is held to review the determination of the
22 facility director that the defendant should be transferred to
23 a non-secure setting, discharged or conditionally released.
24 The burden of proof and the burden of going forth with the
25 evidence rest on the defendant when a hearing is held to
26 review a petition filed by or on behalf of such defendant.
27 The evidence shall be presented in open court with the right
28 of confrontation and cross-examination.
29 (h) If the court finds that the defendant is no longer
30 in need of mental health services it shall order the facility
31 director to discharge the defendant. If the Court finds that
32 the defendant is in need of mental health services, and no
33 longer in need of inpatient care, it shall order the facility
34 director to release the defendant under such conditions as
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1 the Court deems appropriate and as provided by this Section.
2 Such conditional release shall be imposed for a period of
3 five years and shall be subject to later modification by the
4 court as provided by this Section. If the court finds that
5 the defendant is subject to involuntary admission or in need
6 of mental health services on an inpatient basis, it shall
7 order the facility director not to discharge or release the
8 defendant in accordance with paragraph (b) of this Section.
9 (i) If within the period of the defendant's conditional
10 release, the court determines, after hearing evidence, that
11 the defendant has not fulfilled the conditions of release,
12 the court shall order a hearing to be held consistent with
13 the provisions of paragraph (f) and (g) of this section. At
14 such hearing, if the court finds that the defendant is
15 subject to involuntary admission or in need of mental health
16 services on an inpatient basis, it shall enter an order
17 remanding him or her to the Department of Human Services or
18 other facility. If the defendant is remanded to the
19 Department of Human Services, he or she shall be placed in a
20 secure setting unless the court determines that there are
21 compelling reasons that such placement is not necessary. If
22 the court finds that the defendant continues to be in need
23 of mental health services but not on an inpatient basis, it
24 may modify the conditions of the original release in order to
25 reasonably assure the defendant's satisfactory progress in
26 treatment and his or her safety and the safety of others. In
27 no event shall such conditional release be longer than eight
28 years. Nothing in this Section shall limit a court's contempt
29 powers or any other powers of a court.
30 (j) An order of admission under this Section does not
31 affect the remedy of habeas corpus.
32 (k) In the event of a conflict between this Section and
33 the Mental Health and Developmental Disabilities Code or the
34 Mental Health and Developmental Disabilities Confidentiality
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1 Act, the provisions of this Section shall govern.
2 (l) This amendatory Act shall apply to all persons who
3 have been found not guilty by reason of insanity and who are
4 presently committed to the Department of Mental Health and
5 Developmental Disabilities (now the Department of Human
6 Services).
7 (m) The Clerk of the court shall, after the entry of an
8 order of transfer to a non-secure setting of the Department
9 of Human Services or discharge or conditional release,
10 transmit a certified copy of the order to the Department of
11 Human Services, and the sheriff of the county from which the
12 defendant was admitted. In cases where the arrest of the
13 defendant or the commission of the offense took place in any
14 municipality with a population of more than 25,000 persons,
15 the Clerk of the court shall also transmit a certified copy
16 of the order of discharge or conditional release to the
17 proper law enforcement agency for said municipality provided
18 the municipality has requested such notice in writing.
19 Proceedings after Acquittal by Reason of Insanity.
20 (a) After a finding or verdict of not guilty by reason
21 of insanity under Sections 104-25, 115-3 or 115-4 of The Code
22 of Criminal Procedure of 1963, the defendant shall be ordered
23 to the Department of Human Services for an evaluation as to
24 whether he is subject to involuntary admission or in need of
25 mental health services. The order shall specify whether the
26 evaluation shall be conducted on an inpatient or outpatient
27 basis. If the evaluation is to be conducted on an inpatient
28 basis, the defendant shall be placed in a secure setting
29 unless the Court determines that there are compelling reasons
30 why such placement is not necessary. After the evaluation and
31 during the period of time required to determine the
32 appropriate placement, the defendant shall remain in jail.
33 Upon completion of the placement process the sheriff shall
34 be notified and shall transport the defendant to the
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1 designated facility.
2 The Department shall provide the Court with a report of
3 its evaluation within 30 days of the date of this order. The
4 Court shall hold a hearing as provided under the Mental
5 Health and Developmental Disabilities Code to determine if
6 the individual is: (a) subject to involuntary admission; (b)
7 in need of mental health services on an inpatient basis; (c)
8 in need of mental health services on an outpatient basis; (d)
9 a person not in need of mental health services. The Court
10 shall enter its findings.
11 If the defendant is found to be subject to involuntary
12 admission or in need of mental health services on an
13 inpatient care basis, the Court shall order the defendant to
14 the Department of Human Services. The defendant shall be
15 placed in a secure setting unless the Court determines that
16 there are compelling reasons why such placement is not
17 necessary. Such defendants placed in a secure setting shall
18 not be permitted outside the facility's housing unit unless
19 escorted or accompanied by personnel of the Department of
20 Human Services or with the prior approval of the Court for
21 unsupervised on-grounds privileges as provided herein. Any
22 defendant placed in a secure setting pursuant to this
23 Section, transported to court hearings or other necessary
24 appointments off facility grounds by personnel of the
25 Department of Human Services, may be placed in security
26 devices or otherwise secured during the period of
27 transportation to assure secure transport of the defendant
28 and the safety of Department of Human Services personnel and
29 others. These security measures shall not constitute
30 restraint as defined in the Mental Health and Developmental
31 Disabilities Code. If the defendant is found to be in need
32 of mental health services, but not on an inpatient care
33 basis, the Court shall conditionally release the defendant,
34 under such conditions as set forth in this Section as will
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1 reasonably assure the defendant's satisfactory progress in
2 treatment or rehabilitation and the safety of the defendant
3 or others. If the Court finds the person not in need of
4 mental health services, then the Court shall order the
5 defendant discharged from custody.
6 (1) Definitions: For the purposes of this Section:
7 (A) "Subject to involuntary admission" means: A
8 defendant has been found not guilty by reason of
9 insanity; and
10 (i) who is mentally ill and who because of his
11 mental illness is reasonably expected to inflict
12 serious physical harm upon himself or another in the
13 near future; or
14 (ii) who is mentally ill and who because of
15 his illness is unable to provide for his basic
16 physical needs so as to guard himself from serious
17 harm.
18 (B) "In need of mental health services on an
19 inpatient basis" means: a defendant who has been found
20 not guilty by reason of insanity who is not subject to
21 involuntary admission but who is reasonably expected to
22 inflict serious physical harm upon himself or another and
23 who would benefit from inpatient care or is in need of
24 inpatient care.
25 (C) "In need of mental health services on an
26 outpatient basis" means: a defendant who has been found
27 not guilty by reason of insanity who is not subject to
28 involuntary admission or in need of mental health
29 services on an inpatient basis, but is in need of
30 outpatient care, drug and/or alcohol rehabilitation
31 programs, community adjustment programs, individual,
32 group, or family therapy, or chemotherapy.
33 (D) "Conditional Release" means: the release from
34 either the custody of the Department of Human Services or
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1 the custody of the Court of a person who has been found
2 not guilty by reason of insanity under such conditions as
3 the court may impose which reasonably assure the
4 defendant's satisfactory progress in treatment or
5 habilitation and the safety of the defendant and others.
6 The Court shall consider such terms and conditions which
7 may include, but need not be limited to, outpatient care,
8 alcoholic and drug rehabilitation programs, community
9 adjustment programs, individual, group, family, and
10 chemotherapy, periodic checks with the legal authorities
11 and/or the Department of Human Services. The person or
12 facility rendering the outpatient care shall be required
13 to periodically report to the Court on the progress of
14 the Defendant. Such conditional release shall be for a
15 period of five years, unless the defendant, the person or
16 facility rendering the treatment, therapy, program or
17 outpatient care, or the State's attorney petitions the
18 Court for an extension of the conditional release period
19 for an additional three years. Upon receipt of such a
20 petition, the Court shall hold a hearing consistent with
21 the provisions of this paragraph (a) and paragraph (f) of
22 this Section, shall determine whether the defendant
23 should continue to be subject to the terms of conditional
24 release, and shall enter an order either extending the
25 defendant's period of conditional release for a single
26 additional three year period or discharging the
27 defendant. In no event shall the defendant's period of
28 conditional release exceed eight years. These provisions
29 for extension of conditional release shall only apply to
30 defendants conditionally released on or after July 1,
31 1979. However the extension provisions of this amendatory
32 Act of 1984 apply only to defendants charged with a
33 forcible felony.
34 (E) "Facility director" means the chief officer of
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1 a mental health or developmental disabilities facility or
2 his or her designee or the supervisor of a program of
3 treatment or habilitation or his or her designee.
4 "Designee" may include a physician, clinical
5 psychologist, social worker, or nurse.
6 (b) If the Court finds the defendant subject to
7 involuntary admission or in need of mental health services on
8 an inpatient basis, the admission, detention, care, treatment
9 or habilitation, review proceedings, and discharge of the
10 defendant after such order shall be under the Mental Health
11 and Developmental Disabilities Code, except that the initial
12 order for admission of a defendant acquitted of a felony by
13 reason of insanity shall be for an indefinite period of time.
14 Such period of commitment shall not exceed the maximum length
15 of time that the defendant would have been required to serve,
16 less credit for good behavior, before becoming eligible for
17 release had he been convicted of and received the maximum
18 sentence for the most serious crime for which he has been
19 acquitted by reason of insanity. The Court shall determine
20 the maximum period of commitment by an appropriate order.
21 During this period of time, the defendant shall not be
22 permitted to be in the community in any manner, including but
23 not limited to off-grounds privileges, with or without escort
24 by personnel of the Department of Human Services,
25 unsupervised on-grounds privileges, discharge or conditional
26 or temporary release, except by a plan as provided in this
27 Section. In no event shall a defendant's continued
28 unauthorized absence be a basis for discharge. Not more than
29 30 days after admission and every 60 days thereafter so long
30 as the initial order remains in effect, the facility director
31 shall file a treatment plan with the court. Such plan shall
32 include an evaluation of the defendant's progress and the
33 extent to which he is benefiting from treatment. Such plan
34 may also include unsupervised on-grounds privileges,
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1 off-grounds privileges (with or without escort by personnel
2 of the Department of Human Services), home visits and
3 participation in work programs, but only where such
4 privileges have been approved by specific court order, which
5 order may include such conditions on the defendant as the
6 Court may deem appropriate and necessary to reasonably assure
7 the defendant's satisfactory progress in treatment and the
8 safety of the defendant and others.
9 (c) Every defendant acquitted of a felony by reason of
10 insanity and subsequently found to be subject to involuntary
11 admission or in need of mental health services shall be
12 represented by counsel in all proceedings under this Section
13 and under the Mental Health and Developmental Disabilities
14 Code.
15 (1) The court shall appoint as counsel the public
16 defender or an attorney licensed by this State.
17 (2) Upon filing with the court of a verified
18 statement of legal services rendered by the private
19 attorney appointed pursuant to paragraph (1) of this
20 subsection, the court shall determine a reasonable fee
21 for such services. If the defendant is unable to pay the
22 fee, the court shall enter an order upon the State to pay
23 the entire fee or such amount as the defendant is unable
24 to pay from funds appropriated by the General Assembly
25 for that purpose.
26 (d) When the facility director determines that:
27 (1) the defendant is no longer subject to
28 involuntary admission or in need of mental health
29 services on an inpatient basis; and
30 (2) the defendant may be conditionally released
31 because he or she is still in need of mental health
32 services or that the defendant may be discharged as not
33 in need of any mental health services; or
34 (3) the defendant no longer requires placement in a
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1 secure setting;
2 the facility director shall give written notice to the Court,
3 State's Attorney and defense attorney. Such notice shall set
4 forth in detail the basis for the recommendation of the
5 facility director, and specify clearly the recommendations,
6 if any, of the facility director, concerning conditional
7 release. Within 30 days of the notification by the facility
8 director, the Court shall set a hearing and make a finding as
9 to whether the defendant is:
10 (i) subject to involuntary admission; or
11 (ii) in need of mental health services in the form
12 of inpatient care; or
13 (iii) in need of mental health services but not
14 subject to involuntary admission or inpatient care; or
15 (iv) no longer in need of mental health services;
16 or
17 (v) no longer requires placement in a secure
18 setting.
19 Upon finding by the Court, the Court shall enter its
20 findings and such appropriate order as provided in subsection
21 (a) of this Section.
22 (e) A defendant admitted pursuant to this Section, or
23 any person on his behalf, may file a petition for transfer
24 to a non-secure setting within the Department of Human
25 Services or discharge or conditional release under the
26 standards of this Section in the court which rendered the
27 verdict. Upon receipt of a petition for transfer to a
28 non-secure setting or discharge or conditional release, the
29 court shall set a hearing to be held within 120 days.
30 Thereafter, no new petition may be filed for 120 days without
31 leave of the court.
32 (f) The court shall direct that notice of the time and
33 place of the hearing be served upon the defendant, the
34 facility director, the State's Attorney, and the defendant's
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1 attorney. If requested by either the State or the defense or
2 if the Court feels it is appropriate, an impartial
3 examination of the defendant by a psychiatrist or clinical
4 psychologist as defined in Section 1-103 of the Mental Health
5 and Developmental Disabilities Code who is not in the employ
6 of the Department of Human Services shall be ordered, and the
7 report considered at the time of the hearing.
8 (g) The findings of the court shall be established by
9 clear and convincing evidence. The burden of proof and the
10 burden of going forth with the evidence rest with the State
11 when a hearing is held to review the determination of the
12 facility director that the defendant should be transferred to
13 a non-secure setting, discharged or conditionally released.
14 The burden of proof and the burden of going forth with the
15 evidence rest on the defendant when a hearing is held to
16 review a petition filed by or on behalf of such defendant.
17 The evidence shall be presented in open court with the right
18 of confrontation and cross-examination.
19 (h) If the court finds that the defendant is no longer
20 in need of mental health services it shall order the facility
21 director to discharge the defendant. If the Court finds that
22 the defendant is in need of mental health services, and no
23 longer in need of inpatient care, it shall order the facility
24 director to release the defendant under such conditions as
25 the Court deems appropriate and as provided by this Section.
26 Such conditional release shall be imposed for a period of
27 five years and shall be subject to later modification by the
28 court as provided by this Section. If the court finds that
29 the defendant is subject to involuntary admission or in need
30 of mental health services on an inpatient basis, it shall
31 order the facility director not to discharge or release the
32 defendant in accordance with paragraph (b) of this Section.
33 (i) If within the period of the defendant's conditional
34 release, the court determines, after hearing evidence, that
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1 the defendant has not fulfilled the conditions of release,
2 the court shall order a hearing to be held consistent with
3 the provisions of paragraph (f) and (g) of this section. At
4 such hearing, if the court finds that the defendant is
5 subject to involuntary admission or in need of mental health
6 services on an inpatient basis, it shall enter an order
7 remanding him or her to the Department of Human Services or
8 other facility. If the defendant is remanded to the
9 Department of Human Services, he or she shall be placed in a
10 secure setting unless the court determines that there are
11 compelling reasons that such placement is not necessary. If
12 the court finds that the defendant continues to be in need
13 of mental health services but not on an inpatient basis, it
14 may modify the conditions of the original release in order to
15 reasonably assure the defendant's satisfactory progress in
16 treatment and his or her safety and the safety of others. In
17 no event shall such conditional release be longer than eight
18 years. Nothing in this Section shall limit a court's contempt
19 powers or any other powers of a court.
20 (j) An order of admission under this Section does not
21 affect the remedy of habeas corpus.
22 (k) In the event of a conflict between this Section and
23 the Mental Health and Developmental Disabilities Code or the
24 Mental Health and Developmental Disabilities Confidentiality
25 Act, the provisions of this Section shall govern.
26 (l) This amendatory Act shall apply to all persons who
27 have been found not guilty by reason of insanity and who are
28 presently committed to the Department of Mental Health and
29 Developmental Disabilities (now the Department of Human
30 Services).
31 (m) The Clerk of the court shall, after the entry of an
32 order of transfer to a non-secure setting of the Department
33 of Human Services or discharge or conditional release,
34 transmit a certified copy of the order to the Department of
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1 Human Services, and the sheriff of the county from which the
2 defendant was admitted. In cases where the arrest of the
3 defendant or the commission of the offense took place in any
4 municipality with a population of more than 25,000 persons,
5 the Clerk of the court shall also transmit a certified copy
6 of the order of discharge or conditional release to the
7 proper law enforcement agency for said municipality provided
8 the municipality has requested such notice in writing.
9 (Source: P.A. 89-404, eff. 8-20-95; 89-507, eff. 7-1-97;
10 90-105, eff. 7-11-97.)"; and
11 on page 31, by inserting between lines 20 and 21 the
12 following:
13 "Section 45. The Code of Civil Procedure is amended by
14 adding Section 12-903.5 as follows:
15 (735 ILCS 5/12-903.5 new)
16 Sec. 12-903.5. Drug asset forfeitures.
17 (a) The homestead exemption under this Part 9 of Article
18 XII does not apply to property subject to forfeiture under
19 Section 505 of the Illinois Controlled Substances Act,
20 Section 12 of the Cannabis Control Act, or Section 5 of the
21 Narcotics Profit Forfeiture Act.
22 (b) This Section applies to actions pending on or
23 commenced on or after the effective date of this Section.
24 Drug asset forfeitures.
25 (a) The homestead exemption under this Part 9 of Article
26 XII does not apply to property subject to forfeiture under
27 Section 505 of the Illinois Controlled Substances Act,
28 Section 12 of the Cannabis Control Act, or Section 5 of the
29 Narcotics Profit Forfeiture Act.
30 (b) This Section applies to actions pending on or
31 commenced on or after the effective date of this amendatory
32 Act of 1995.
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1 (Source: P.A. 89-404, eff. 8-20-95.)
2 Section 95. Severability. The provisions of this Act
3 are severable under Section 1.31 of the Statute on
4 Statutes.".