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| Public Act 097-0657
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| HB0909 Enrolled | LRB097 03728 RLC 43765 b |
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AN ACT concerning criminal law.
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Be it enacted by the People of the State of Illinois, |
represented in the General Assembly:
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Section 5. The Public Corruption Profit Forfeiture Act is |
amended by changing Section 10 as follows:
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(5 ILCS 283/10)
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Sec. 10. Penalties. |
(a) A person who is convicted of a violation of any of the |
following Sections, subsections, and clauses of the Criminal |
Code of 1961: |
(1) clause (a)(6) of Section 12-6 (intimidation by a |
public official), |
(2) Section 33-1 (bribery), or |
(3) subsection (a) of Section 33E-7 (kickbacks), or |
(4) Section 33C-4 or subsection (d) of Section 17-10.3 |
(fraudulently obtaining public moneys reserved for |
disadvantaged business enterprises), |
shall forfeit to the State of Illinois: |
(A) any profits or proceeds and any property or |
property interest he or she has acquired or maintained in |
violation of any of the offenses listed in clauses (1) |
through (4) (3) of this subsection (a) that the court |
determines, after a forfeiture hearing under subsection |
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(b) of this Section, to have been acquired or maintained as |
a result of violating any of the offenses listed in clauses |
(1) through (4) (3) of this subsection (a); and |
(B) any interest in, security of, claim against, or |
property or contractual right of any kind affording a |
source of influence over, any enterprise which he or she |
has established, operated, controlled, conducted, or |
participated in the conduct of, in violation of any of the |
offenses listed in clauses (1) through (4) (3) of this |
subsection (a) that the court determines, after a |
forfeiture hearing under subsection (b) of this Section, to |
have been acquired or maintained as a result of violating |
any of the offenses listed in clauses (1) through (4) (3) |
of this subsection (a) or used to facilitate a violation of |
one of the offenses listed in clauses (1) through (4) (3) |
of this subsection (a).
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(b) The court shall, upon petition by the Attorney General |
or State's Attorney, at any time after the filing of an |
information or return of an indictment, conduct a hearing to |
determine whether any property or property interest is subject |
to forfeiture under this Act. At the forfeiture hearing the |
people shall have the burden of establishing, by a |
preponderance of the evidence, that property or property |
interests are subject to forfeiture under this Act. There is a |
rebuttable presumption at such hearing that any property or |
property interest of a person charged by information or |
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indictment with a violation of any of the offenses listed in |
clauses (1) through (4) (3) of subsection (a) of this Section |
or who is convicted of a violation of any of the offenses |
listed in clauses (1) through (4) (3) of subsection (a) of this |
Section is subject to forfeiture under this Section if the |
State establishes by a preponderance of the evidence that: |
(1) such property or property interest was acquired by |
such person during the period of the violation of any of |
the offenses listed in clauses (1) through (4) (3) of |
subsection (a) of this Section or within a reasonable time |
after such period; and
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(2) there was no likely source for such property or |
property interest other than the violation of any of the |
offenses listed in clauses (1) through (4) (3) of |
subsection (a) of this Section.
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(c) In an action brought by the People of the State of |
Illinois under this Act, wherein any restraining order, |
injunction or prohibition or any other action in connection |
with any property or property interest subject to forfeiture |
under this Act is sought, the circuit court which shall preside |
over the trial of the person or persons charged with any of the |
offenses listed in clauses (1) through (4) (3) of subsection |
(a) of this Section shall first determine whether there is |
probable cause to believe that the person or persons so charged |
have committed a violation of any of the offenses listed in |
clauses (1) through (4) (3) of subsection (a) of this Section |
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and whether the property or property interest is subject to |
forfeiture pursuant to this Act.
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In order to make such a determination, prior to entering |
any such order, the court shall conduct a hearing without a |
jury, wherein the People shall establish that there is: (i) |
probable cause that the person or persons so charged have |
committed one of the offenses listed in clauses (1) through (4) |
(3) of subsection (a) of this Section and (ii) probable cause |
that any property or property interest may be subject to |
forfeiture pursuant to this Act. Such hearing may be conducted |
simultaneously with a preliminary hearing, if the prosecution |
is commenced by information or complaint, or by motion of the |
People, at any stage in the proceedings. The court may accept a |
finding of probable cause at a preliminary hearing following |
the filing of a charge for violating one of the offenses listed |
in clauses (1) through (4) (3) of subsection (a) of this |
Section or the return of an indictment by a grand jury charging |
one of the offenses listed in clauses (1) through (4) (3) of |
subsection (a) of this Section as sufficient evidence of |
probable cause as provided in item (i) above.
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Upon such a finding, the circuit court shall enter such |
restraining order, injunction or prohibition, or shall take |
such other action in connection with any such property or |
property interest subject to forfeiture under this Act, as is |
necessary to insure that such property is not removed from the |
jurisdiction of the court, concealed, destroyed or otherwise |
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disposed of by the owner of that property or property interest |
prior to a forfeiture hearing under subsection (b) of this |
Section. The Attorney General or State's Attorney shall file a |
certified copy of such restraining order, injunction or other |
prohibition with the recorder of deeds or registrar of titles |
of each county where any such property of the defendant may be |
located. No such injunction, restraining order or other |
prohibition shall affect the rights of any bona fide purchaser, |
mortgagee, judgment creditor or other lien holder arising prior |
to the date of such filing.
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The court may, at any time, upon verified petition by the |
defendant, conduct a hearing to release all or portions of any |
such property or interest which the court previously determined |
to be subject to forfeiture or subject to any restraining |
order, injunction, or prohibition or other action. The court |
may release such property to the defendant for good cause shown |
and within the sound discretion of the court.
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(d) Prosecution under this Act may be commenced by the |
Attorney General or a State's Attorney.
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(e) Upon an order of forfeiture being entered pursuant to |
subsection (b) of this Section, the court shall authorize the |
Attorney General to seize any property or property interest |
declared forfeited under this Act and under such terms and |
conditions as the court shall deem proper. Any property or |
property interest that has been the subject of an entered |
restraining order, injunction or prohibition or any other |
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action filed under subsection (c) shall be forfeited unless the |
claimant can show by a preponderance of the evidence that the |
property or property interest has not been acquired or |
maintained as a result of a violation of any of the offenses |
listed in clauses (1) through (4) (3) of subsection (a) of this |
Section or has not been used to facilitate a violation of any |
of the offenses listed in clauses (1) through (4) (3) of |
subsection (a) of this Section.
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(f) The Attorney General or his or her designee is |
authorized to sell all property forfeited and seized pursuant |
to this Act, unless such property is required by law to be |
destroyed or is harmful to the public, and, after the deduction |
of all requisite expenses of administration and sale, shall |
distribute the proceeds of such sale, along with any moneys |
forfeited or seized, in accordance with subsection (g).
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(g) All monies and the sale proceeds of all other property |
forfeited and seized pursuant to this Act shall be distributed |
as follows:
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(1) An amount equal to 50% shall be distributed to the |
unit of local government or other law enforcement agency |
whose officers or employees conducted the investigation |
into a violation of any of the offenses listed in clauses |
(1) through (4) (3) of subsection (a) of this Section and |
caused the arrest or arrests and prosecution leading to the |
forfeiture. Amounts distributed to units of local |
government and law enforcement agencies shall be used for |
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enforcement of laws governing public corruption, or for |
other law enforcement purposes. In the event, however, that |
the investigation, arrest or arrests and prosecution |
leading to the forfeiture were undertaken solely by a State |
agency, the portion provided hereunder shall be paid into |
the State Asset Forfeiture Fund in the State treasury to be |
used by that State agency in accordance with law.
If the |
investigation, arrest or arrests and prosecution leading |
to the forfeiture were undertaken by the Attorney General, |
the portion provided hereunder shall be paid into the |
Attorney General's Whistleblower Reward and Protection |
Fund in the State treasury to be used by the Attorney |
General in accordance with law. |
(2) An amount equal to 12.5% shall be distributed to |
the county in which the prosecution resulting in the |
forfeiture was instituted, deposited in a special fund in |
the county treasury and appropriated to the State's |
Attorney for use in accordance with law.
If the prosecution |
was conducted by the Attorney General, then the amount |
provided under this subsection shall be paid into the |
Attorney General's Whistleblower Reward and Protection |
Fund in the State treasury to be used by the Attorney |
General in accordance with law. |
(3) An amount equal to 12.5% shall be distributed to |
the Office of the State's Attorneys Appellate Prosecutor |
and deposited in the State's Attorneys Appellate |
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Prosecutor Anti-Corruption Fund, to be used by the Office |
of the State's Attorneys Appellate Prosecutor for |
additional expenses incurred in prosecuting appeals |
arising under this Act. Any amounts remaining in the Fund |
after all additional expenses have been paid shall be used |
by the Office to reduce the participating county |
contributions to the Office on a prorated basis as |
determined by the board of governors of the Office of the |
State's Attorneys Appellate Prosecutor based on the |
populations of the participating counties.
If the appeal is |
to be conducted by the Attorney General, then the amount |
provided under this subsection shall be paid into the |
Attorney General's Whistleblower Reward and Protection |
Fund in the State treasury to be used by the Attorney |
General in accordance with law. |
(4) An amount equal to 25% shall be paid into the State |
Asset Forfeiture Fund in the State treasury to be used by |
the Department of State Police for the funding of the |
investigation of public corruption activities. Any amounts |
remaining in the Fund after full funding of such |
investigations shall be used by the Department in |
accordance with law to fund its other enforcement |
activities.
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(h) All moneys deposited pursuant to this Act in the State |
Asset Forfeiture Fund shall, subject to appropriation, be used |
by the Department of State Police in the manner set forth in |
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this Section. All moneys deposited pursuant to this Act in the |
Attorney General's Whistleblower Reward and Protection Fund |
shall, subject to appropriation, be used by the Attorney |
General for State law enforcement purposes and for the |
performance of the duties of that office. All moneys deposited |
pursuant to this Act in the State's Attorneys Appellate |
Prosecutor Anti-Corruption Fund shall, subject to |
appropriation, be used by the Office of the State's Attorneys |
Appellate Prosecutor in the manner set forth in this Section.
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(Source: P.A. 96-1019, eff. 1-1-11.)
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Section 99. Effective date. This Act takes effect upon |
becoming law.
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