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91_HB0725
LRB9102852RCks
1 AN ACT to amend the Narcotics Profit Forfeiture Act by
2 changing Section 5.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Narcotics Profit Forfeiture Act is
6 amended by changing Section 5 as follows:
7 (725 ILCS 175/5) (from Ch. 56 1/2, par. 1655)
8 Sec. 5. (a) A person who commits the offense of narcotics
9 racketeering shall:
10 (1) be guilty of a Class 1 felony; and
11 (2) be subject to a fine of up to $250,000.
12 A person who commits the offense of narcotics
13 racketeering or who violates Section 3 of the Drug
14 Paraphernalia Control Act shall forfeit to the State of
15 Illinois: (A) any profits or proceeds and any property or
16 property interest he has acquired or maintained in violation
17 of this Act or Section 3 of the Drug Paraphernalia Control
18 Act or has used to facilitate a violation of this Act that
19 the court determines, after a forfeiture hearing, under
20 subsection (b) of this Section to have been acquired or
21 maintained as a result of narcotics racketeering or violating
22 Section 3 of the Drug Paraphernalia Control Act, or used to
23 facilitate narcotics racketeering; and (B) any interest in,
24 security of, claim against, or property or contractual right
25 of any kind affording a source of influence over, any
26 enterprise which he has established, operated, controlled,
27 conducted, or participated in the conduct of, in violation of
28 this Act or Section 3 of the Drug Paraphernalia Control Act,
29 that the court determines, after a forfeiture hearing, under
30 subsection (b) of this Section to have been acquired or
31 maintained as a result of narcotics racketeering or violating
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1 Section 3 of the Drug Paraphernalia Control Act or used to
2 facilitate narcotics racketeering.
3 (b) The court shall, upon petition by the Attorney
4 General or State's Attorney, at any time subsequent to the
5 filing of an information or return of an indictment, conduct
6 a hearing to determine whether any property or property
7 interest is subject to forfeiture under this Act. At the
8 forfeiture hearing the people shall have the burden of
9 establishing, by a preponderance of the evidence, that
10 property or property interests are subject to forfeiture
11 under this Act. There is a rebuttable presumption at such
12 hearing that any property or property interest of a person
13 charged by information or indictment with narcotics
14 racketeering or who is convicted of a violation of Section 3
15 of the Drug Paraphernalia Control Act is subject to
16 forfeiture under this Section if the State establishes by a
17 preponderance of the evidence that:
18 (1) such property or property interest was acquired
19 by such person during the period of the violation of this
20 Act or Section 3 of the Drug Paraphernalia Control Act or
21 within a reasonable time after such period; and
22 (2) there was no likely source for such property or
23 property interest other than the violation of this Act or
24 Section 3 of the Drug Paraphernalia Control Act.
25 (c) In an action brought by the People of the State of
26 Illinois under this Act, wherein any restraining order,
27 injunction or prohibition or any other action in connection
28 with any property or property interest subject to forfeiture
29 under this Act is sought, the circuit court which shall
30 preside over the trial of the person or persons charged with
31 narcotics racketeering as defined in Section 4 of this Act or
32 violating Section 3 of the Drug Paraphernalia Control Act
33 shall first determine whether there is probable cause to
34 believe that the person or persons so charged has committed
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1 the offense of narcotics racketeering as defined in Section 4
2 of this Act or a violation of Section 3 of the Drug
3 Paraphernalia Control Act and whether the property or
4 property interest is subject to forfeiture pursuant to this
5 Act.
6 In order to make such a determination, prior to entering
7 any such order, the court shall conduct a hearing without a
8 jury, wherein the People shall establish that there is: (i)
9 probable cause that the person or persons so charged have
10 committed the offense of narcotics racketeering or violating
11 Section 3 of the Drug Paraphernalia Control Act and (ii)
12 probable cause that any property or property interest may be
13 subject to forfeiture pursuant to this Act. Such hearing may
14 be conducted simultaneously with a preliminary hearing, if
15 the prosecution is commenced by information or complaint, or
16 by motion of the People, at any stage in the proceedings.
17 The court may accept a finding of probable cause at a
18 preliminary hearing following the filing of an information
19 charging the offense of narcotics racketeering as defined in
20 Section 4 of this Act or the return of an indictment by a
21 grand jury charging the offense of narcotics racketeering as
22 defined in Section 4 of this Act or after a charge is filed
23 for violating Section 3 of the Drug Paraphernalia Control Act
24 as sufficient evidence of probable cause as provided in item
25 (i) above.
26 Upon such a finding, the circuit court shall enter such
27 restraining order, injunction or prohibition, or shall take
28 such other action in connection with any such property or
29 property interest subject to forfeiture under this Act, as is
30 necessary to insure that such property is not removed from
31 the jurisdiction of the court, concealed, destroyed or
32 otherwise disposed of by the owner of that property or
33 property interest prior to a forfeiture hearing under
34 subsection (b) of this Section. The Attorney General or
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1 State's Attorney shall file a certified copy of such
2 restraining order, injunction or other prohibition with the
3 recorder of deeds or registrar of titles of each county where
4 any such property of the defendant may be located. No such
5 injunction, restraining order or other prohibition shall
6 affect the rights of any bona fide purchaser, mortgagee,
7 judgment creditor or other lien holder arising prior to the
8 date of such filing.
9 The court may, at any time, upon verified petition by the
10 defendant, conduct a hearing to release all or portions of
11 any such property or interest which the court previously
12 determined to be subject to forfeiture or subject to any
13 restraining order, injunction, or prohibition or other
14 action. The court may release such property to the defendant
15 for good cause shown and within the sound discretion of the
16 court.
17 (d) Prosecution under this Act may be commenced by the
18 Attorney General or a State's Attorney.
19 (e) Upon an order of forfeiture being entered pursuant
20 to subsection (b) of this Section, the court shall authorize
21 the Attorney General to seize any property or property
22 interest declared forfeited under this Act and under such
23 terms and conditions as the court shall deem proper. Any
24 property or property interest that has been the subject of an
25 entered restraining order, injunction or prohibition or any
26 other action filed under subsection (c) shall be forfeited
27 unless the claimant can show by a preponderance of the
28 evidence that the property or property interest has not been
29 acquired or maintained as a result of narcotics racketeering
30 or has not been used to facilitate narcotics racketeering.
31 (f) The Attorney General or his designee is authorized
32 to sell all property forfeited and seized pursuant to this
33 Act, unless such property is required by law to be destroyed
34 or is harmful to the public, and, after the deduction of all
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1 requisite expenses of administration and sale, shall
2 distribute the proceeds of such sale, along with any moneys
3 forfeited or seized, in accordance with subsection (g) or
4 (h), whichever is applicable.
5 (g) All monies and the sale proceeds of all other
6 property forfeited and seized pursuant to this Act shall be
7 distributed as follows:
8 (1) An amount equal to 50% shall be distributed to
9 the unit of local government whose officers or employees
10 conducted the investigation into narcotics racketeering
11 and caused the arrest or arrests and prosecution leading
12 to the forfeiture. Amounts distributed to units of local
13 government shall be used for enforcement of laws
14 governing narcotics activity. In the event, however,
15 that the investigation, arrest or arrests and prosecution
16 leading to the forfeiture were undertaken solely by a
17 State agency, the portion provided hereunder shall be
18 paid into the Drug Traffic Prevention Fund in the State
19 treasury to be used for enforcement of laws governing
20 narcotics activity.
21 (2) (Blank). An amount equal to 12.5% shall be
22 distributed to the county in which the prosecution
23 resulting in the forfeiture was instituted, deposited in
24 a special fund in the county treasury and appropriated to
25 the State's Attorney for use in the enforcement of laws
26 governing narcotics activity.
27 An amount equal to 12.5% shall be distributed to the
28 Office of the State's Attorneys Appellate Prosecutor and
29 deposited in the Narcotics Profit Forfeiture Fund, which
30 is hereby created in the State treasury, to be used by
31 the Office of the State's Attorneys Appellate Prosecutor
32 for additional expenses incurred in prosecuting appeals
33 arising under this Act. Any amounts remaining in the
34 Fund after all additional expenses have been paid shall
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1 be used by the Office to reduce the participating county
2 contributions to the Office on a pro-rated basis as
3 determined by the board of governors of the Office of
4 the State's Attorneys Appellate Prosecutor based on the
5 populations of the participating counties.
6 (3) An amount equal to 50% 25% shall be paid into
7 the Drug Traffic Prevention Fund in the State treasury to
8 be used by the Department of State Police for funding
9 Metropolitan Enforcement Groups created pursuant to the
10 Intergovernmental Drug Laws Enforcement Act. Any amounts
11 remaining in the Fund after full funding of Metropolitan
12 Enforcement Groups shall be used for enforcement, by the
13 State or any unit of local government, of laws governing
14 narcotics activity.
15 (h) Where the investigation or indictment for the
16 offense of narcotics racketeering or a violation of Section 3
17 of the Drug Paraphernalia Control Act has occurred under the
18 provisions of the Statewide Grand Jury Act, all monies and
19 the sale proceeds of all other property shall be distributed
20 as follows:
21 (1) 60% shall be distributed to the metropolitan
22 enforcement group, local, municipal, county, or State law
23 enforcement agency or agencies which conducted or
24 participated in the investigation resulting in the
25 forfeiture. The distribution shall bear a reasonable
26 relationship to the degree of direct participation of the
27 law enforcement agency in the effort resulting in the
28 forfeiture, taking into account the total value of the
29 property forfeited and the total law enforcement effort
30 with respect to the violation of the law on which the
31 forfeiture is based. Amounts distributed to the agency
32 or agencies shall be used for the enforcement of laws
33 governing cannabis and controlled substances.
34 (2) 25% shall be distributed by the Attorney
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1 General as grants to drug education, treatment and
2 prevention programs licensed or approved by the
3 Department of Human Services. In making these grants,
4 the Attorney General shall take into account the plans
5 and service priorities of, and the needs identified by,
6 the Department of Human Services.
7 (3) 15% shall be distributed to the Attorney
8 General and the State's Attorney, if any, participating
9 in the prosecution resulting in the forfeiture. The
10 distribution shall bear a reasonable relationship to the
11 degree of direct participation in the prosecution of the
12 offense, taking into account the total value of the
13 property forfeited and the total amount of time spent in
14 preparing and presenting the case, the complexity of the
15 case and other similar factors. Amounts distributed to
16 the Attorney General under this paragraph shall be
17 retained in a fund held by the State Treasurer as
18 ex-officio custodian to be designated as the Statewide
19 Grand Jury Prosecution Fund and paid out upon the
20 direction of the Attorney General for expenses incurred
21 in criminal prosecutions arising under the Statewide
22 Grand Jury Act. Amounts distributed to a State's
23 Attorney shall be deposited in a special fund in the
24 county treasury and appropriated to the State's Attorney
25 for use in the enforcement of laws governing narcotics
26 activity.
27 (i) All monies deposited pursuant to this Act in the
28 Drug Traffic Prevention Fund established under Section
29 5-9-1.2 of the Unified Code of Corrections are appropriated,
30 on a continuing basis, to the Department of State Police to
31 be used for funding Metropolitan Enforcement Groups created
32 pursuant to the Intergovernmental Drug Laws Enforcement Act
33 or otherwise for the enforcement of laws governing narcotics
34 activity.
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1 (Source: P.A. 89-507, eff. 7-1-97.)