Illinois Supreme Court Reports
PEOPLE v. JONES, 101996 (Ill. 12-21-2006) THE PEOPLE OF THE
STATE OF ILLINOIS, Appellant, v. MICHAEL JONES, Appellee.
Docket No. 101996. Supreme Court of Illinois. Opinion
filed December 21, 2006.
OPINION
JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Fitzgerald, Kilbride,
Garman, Karmeier, and Burke concurred in the judgment and
opinion.
After a bench trial in the circuit court of Cook County,
defendant Michael Jones was convicted of the offense of
possession of a controlled substance. The court sentenced
him to two years’ imprisonment and imposed several monetary
charges on him as part of his imprisonment. The appellate
court affirmed his conviction and affirmed his sentence of
imprisonment, but held that one of the monetary charges
assessed on defendant was unconstitutional and that several
of the other charges were satisfied by a credit to which
defendant was entitled because of his presentencing
incarceration. No. 1-04-3117 (unpublished order under
Supreme Court Rule 23). Because the appellate court’s
decision declared a statute of this state unconstitutional,
we granted the State an appeal as of right. 210 Ill. 2d R.
317.
BACKGROUND
Defendant does not, in a cross-appeal, challenge his
conviction or his sentence of imprisonment, and thus this
appeal only involves issues arising from monetary charges
imposed by the circuit court on defendant. For this reason,
we need not dwell long on the facts underlying defendant’s
conviction. We note briefly that Chicago police officers
arrested defendant during a routine narcotics surveillance.
The arrest occurred after the officers observed defendant
throw to the ground an object, later established to contain
0.4 grams of heroin. Defendant, charged originally with one
count of possession of a controlled substance with intent
to deliver, was found guilty, after a bench trial, of the
lesser-included offense of possession of a controlled
substance.
At sentencing, defendant received a two-year sentence of
imprisonment. The circuit court also imposed several
charges on defendant. A form in the record lists the
“fines, fees, assessments, penalties, and reimbursements”
imposed by the court on defendant. They total $1,224. The
following boxes are marked on the form:
“Costs and Fees
Felony Complaint Filed-Clerk — $ 190
Felony Complaint Conviction-State’s Attorney — $ 60
Preliminary Hearing-State’s Attorney — $ 20
State DNA ID System — $ 200
Violent Crime Victim Assistance — $ 20
Criminal/Traffic Conviction Surcharge-Additional Penalty — $ 4
Automation-Clerk — $ 5
Document Storage-Clerk — $ 5
Court Services-Sheriff — $ 15
Controlled Substance/ Cannabis/ Hypodermic Needles Offenses
Assessment Controlled Substance — $ 500
Crime Lab Drug Analysis-Northern — $ 100
Trauma Fund — $ 100
Trauma Fund Spinal Cord — $ 5
TOTAL — $ 1224″
On appeal, the appellate court affirmed defendant’s conviction
and sentence of imprisonment, but modified the costs and
fees order against defendant to reflect a credit of $604
against the $4 “Criminal/Traffic Conviction
Surcharge-Additional Penalty” (see 730 ILCS 5/5-9-1(c-9)
(West 2004)), the $500 “Assessment Controlled Substance”
(see 720 ILCS 570/411.2(a)(4) (West 2004)), and the $100
charge marked “Trauma Fund” (see 730 ILCS 5/5-9-1.1(b)
(West 2004)). No. 1-04-3117 (unpublished order under
Supreme Court Rule 23). The court held that these charges
were all “fines” and were thus wiped out by the credit to
which defendant was entitled for his presentence
incarceration. See 725 ILCS 5/110-14 (West 2004). The
appellate court also struck from the order the $5 charge
for “Trauma Fund Spinal Cord” (see 730 ILCS 5/5-9-1.1(c)
(West 2004)). This charge, the court held, violated
defendant’s substantive due process rights.
In its analysis the appellate court drew heavily on People
v. Rodriguez, 362 Ill. App. 3d 44 (2005), and People v.
Fort, 362 Ill. App. 3d 1 (2005). Decided mere weeks apart,
these two decisions contain the analytical underpinning of
the appellate court’s analysis of all of the statutory
issues raised in the instant case. Because Rodriguez and
Fort were so critical to the decision of the appellate court
in the instant case, we briefly summarize them.
Rodriguez was the first case to address a defendant’s due
process challenge to the $5 charge payable to the Spinal
Cord Injury Paralysis Cure Research Trust Fund (the Spinal
Cord Paralysis charge), imposed by section 5-9-1.1(c) of
the Unified Code of Corrections (730 ILCS 5/5-9-1.1(c)
(West 2004)). The court first addressed whether the charge
constituted a “fine” or a “fee.” Rodriguez, 362 Ill. App. 3d
at 48-52. The court concluded that the charge was a fee,
based on the plain language of the statute so labeling it.
Rodriguez, 362 Ill. App. 3d at 51-52. The court
acknowledged that the legislature was not always rigorous
about labeling charges fines and fees. Rodriguez, 362 Ill.
App. 3d at 51 (noting that same charge was labeled a “fine”
in one statute and a “fee” in another). The court also
considered the State’s argument that the legislature
intended the charge to be a fine because it was placed
within article 9 of chapter V of the Unified Code of
Corrections, which is entitled “Fines,” and because it was
imposed on only defendants who have been convicted.
Rodriguez, 362 Ill. App. 3d at 51. However, the court noted
that other charges which were clearly fees were imposed on
convicted defendants under article 9. Rodriguez, 362 Ill.
App. 3d at 51. Accordingly, the court saw no reason to look
beyond the plain language of the statute, and held that the
charge was a fee. Rodriguez, 362 Ill. App. 3d at 51-52.
Because of this, the court held that it need not address
“whether the use of the proceeds of a fine must bear a
reasonable relationship to the offense for which the fine is
imposed.” Rodriguez, 362 Ill. App. 3d at 49.
The court proceeded to analyze the constitutionality of the
charge as a fee. The court held that for purposes of
rational-relation due process analysis, the offense of
possession of a controlled substance bore no rational
relationship to spinal cord injury or research. After
reviewing this court’s precedent, including Arangold Corp.
v. Zehnder, 204 Ill. 2d 142 (2003), People v. Lindner, 127
Ill. 2d 174 (1989), and Crocker v. Finley, 99 Ill. 2d 444
(1984), the court concluded that mere possession of a
controlled substance was too remote from spinal cord injury
to support requiring persons convicted of the former to
fund research into the latter. The court acknowledged but
rejected the State’s argument that the legislature “could
have found that the possession of a controlled substance is
related to driving under the influence of a controlled
substance and that driving under the influence of a
controlled substance causes automobile accidents, which are
the primary cause of spinal cord injuries.” Rodriguez, 362
Ill. App. 3d at 54. The court stated that although this
reasoning could have supported the legislature’s decision
to impose a $5 fee earmarked for the Spinal Cord Paralysis
fund on defendants convicted of driving under the influence
of alcohol or drugs (see 730 ILCS 5/5-9-1(c-7) (West
2004)), the instant statute imposed the fee for mere
possession, which does not require or involve the use of a
motor vehicle, and was therefore too remote. Rodriguez, 362
Ill. App. 3d at 54.
Presiding Justice Quinn dissented. Rodriguez, 362 Ill.
App. 3d at 54-55 (Quinn, P.J., dissenting). He noted that a
court has a responsibility to construe a statute so as to
uphold its constitutionality if it is reasonably possible
to do so, and observed that the majority seemed to have
implicitly admitted that section 5-9-1.1(c) would be
constitutional if the $5 charge imposed therein was a fine.
Rodriguez, 362 Ill. App. 3d at 55 (Quinn, P.J.,
dissenting). Justice Quinn would have found section 5-9-1.1
ambiguous, based on its location within article 9 of
chapter V of the Unified Code of Corrections-entitled
“Fines”-as well as the fact that the charge was imposed
only on those convicted of a felony drug offense.
Rodriguez, 362 Ill. App. 3d at 55 (Quinn, P.J., dissenting).
Justice Quinn believed that the charge could reasonably be
construed as a fine, and argued that the court had the
obligation to so construe it. Rodriguez, 362 Ill. App. 3d
at 55 (Quinn, P.J., dissenting).
Fort also considered the constitutionality of section
5-9-1.1(c) of the Unified Code of Corrections (730 ILCS
5/5-9-1.1(c) (West 2004)). However, Fort did not add to the
analysis of Rodriguez. Rather, the court quoted the
discussion from Rodriguez noted above, concerning the lack
of relationship between spinal cord injury and simple
possession of a controlled substance (as opposed to
operation of a motor vehicle under the influence of a
controlled substance). Fort, 362 Ill. App. 3d at 9-10. The
court stated that because the State’s arguments in favor of
constitutionality were “virtually identical” to the
arguments in Rodriguez, the court saw “no reason to depart
from the holding in Rodriguez.” Fort, 362 Ill. App. 3d at
10.
Fort did, however, conduct an extensive analysis of the
issue of whether a defendant may claim a credit for
presentencing incarceration (see 725 ILCS 5/110-14 (West
2004)) against a drug assessment imposed pursuant to
section 411.2 of the Illinois Controlled Substances Act
(720 ILCS 570/411.2 (West 2004)). The court noted that the
resolution of this issue depended on whether the charge was
a “fine” or “something else, like a fee or court cost,
which is a charge taxed by a court, compensatory in
nature.” Fort, 362 Ill. App. 3d at 4. Only if the charge
were a fine, the court held, would a defendant be entitled
to the credit allowed by section 110-14 of the Code of
Criminal Procedure of 1963. Fort, 362 Ill. App. 3d at 4.
The court noted that numerous previous decisions of the
appellate court had addressed the issue of whether a
defendant was entitled to a presentencing credit against a
drug assessment, concluding that the decisions amounted to
“a shutout against the State.” Fort, 362 Ill. App. 3d at 5.
Although the State argued that all of the previous
decisions were erroneous, the court “decline[d] the State’s
invitation to reject the consistent line of appellate
decisions that allows the sentence credit against the drug
assessment.” Fort, 362 Ill. App. 3d at 6.
The court offered several reasons for its conclusion that
the charge was a “fine.” The first was the ambiguity of the
statutory language. Fort, 362 Ill. App. 3d at 7. Militating
against construing the charge to be a fine were the facts
that the statute imposing the charge was located in a
section “separate from the fines provision for convictions
under the Controlled Substances Act” and the fact that the
statute never explicitly referred to the charge as a ine.
Fort, 362 Ill. App. 3d at 7. The court found countervailing
evidence in the fact that the statute did refer to the
assessment as a “penalty.” Fort, 362 Ill. App. 3d at 7.
Concluding that the statute was ambiguous, the court looked
to the legislative history, and noted that one of the
sponsors of the bill enacting section 411.2 repeatedly
referred to the charge imposed as a fine. Fort, 362 Ill.
App. 3d at 7, quoting 87th Ill. Gen. Assem., Senate
Proceedings, July 18, 1991, at 186-87 (statements of
Senators Cullerton and Barkhausen). Fort buttressed its
conclusion that the charge was a fine by noting that not
only had numerous decisions of the appellate court so
construed it, but the legislature had not reacted to those
decisions. The court observed that although cases addressing
“the credit against amendment issue” were decided in 1993,
1994 and 1995, and the legislature had amended section
411.2 in 1994, 1995, and 1997, none of the amendments
addressed this issue. Noting the rule of construction that
“`[w]hen the legislature amends a statute, but leaves
unchanged portions which have been judicially construed,
the unchanged position will retain the construction given
prior to the amendment,'” the court concluded that this
inaction on the legislature’s part constituted additional
strong evidence that the previous decisions were correct.
Fort, 362 Ill. App. 3d at 8, quoting People v. Agnew, 105
Ill. 2d 275, 280 (1985).
As noted, the appellate court in the instant case relied
heavily on Fort and Rodriguez. The court relied directly on
these two cases to hold that the Spinal Cord Paralysis
charge was unconstitutional and that the drug assessment
was subject to offset by the presentencing incarceration
credit. The court also held that defendant was entitled to
credit against the $4 “Criminal/Traffic Conviction
Surcharge” (see 730 ILCS 5/5-9-1(c-9) (West 2004)), and the
$100 “Trauma Fund” charge (see 730 ILCS 5/5-9-1.1(b) (West
2004)), which the appellate court also found to be fines.
ANALYSIS
As previously noted, the only issues before this court
concern the charges imposed on defendant in conjunction
with his conviction. The arguments can be broken into two
categories: preincarceration credit and constitutionality.
We address each in turn.
I. Presentencing Incarceration Credit
We turn first to the appellate court’s ruling that
defendant’s presentencing incarceration entitled him to a
$604 credit against the $4 Criminal/Traffic Conviction
Surcharge, the $500 Assessment Controlled Substance, and
the $100 Trauma Fund charge. The statute establishing the
presentencing credit is section 110-14(a) of the Code of
Criminal Procedure, which provides:
“Any person incarcerated on a bailable offense who does
not supply bail and against whom a fine is levied on
conviction of such offense shall be allowed a credit of $5
for each day so incarcerated upon application of the
defendant. However, in no case shall the amount so
allowed or credited exceed the amount of the fine.” 725
ILCS 5/110-14(a) (West 2004).
The parties do not dispute that defendant was incarcerated
on a bailable offense for 274 days before sentencing, and
accordingly is entitled to a credit of up to $1,370. The
parties also agree that the credit under section 110-14
operates to offset only fines, not fees. See 725 ILCS
5/110-14 (a) (West 2004). Accordingly, whether defendant
was entitled to the credit against any charge imposed on
him turns solely on whether that charge constituted a
“fine” or a “fee.”
This is a matter of statutory interpretation. The
construction of a statute is a question of law, which is
reviewed de novo. In re Estate of Dierkes, 191 Ill. 2d 326,
330 (2000). The fundamental rule of statutory construction
is to ascertain and give effect to the legislature’s
intent. Michigan Avenue National Bank v. County of Cook,
191 Ill. 2d 493, 503-04 (2000). Accordingly, courts should
consider the statute in its entirety, keeping in mind the
subject it addresses and the legislature’s apparent
objective in enacting it. People v. Davis, 199 Ill. 2d 130,
135 (2002). The best indication of legislative intent is
the statutory language, given its plain and ordinary
meaning. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469,
479 (1994). Where the language is clear and unambiguous, we
must apply the statute without resort to further aids of
statutory construction. Davis v. Toshiba Machine Co.,
America, 186 Ill. 2d 181, 184-85 (1999). We construe
statutes as a whole, so that no part is rendered meaningless
or superfluous. People v. Jones, 214 Ill. 2d 187, 193
(2005); Bonaguro v. County Officers Electoral Board, 158
Ill. 2d 391, 397 (1994). When construing criminal statutes,
the rule of lenity requires that any ambiguity must be
resolved in that manner which favors the accused. People v.
Davis, 199 Ill. 2d 130, 140 (2002), citing People ex rel.
Gibson v. Cannon, 65 Ill. 2d 366, 370-71 (1976). However,
this rule must not be stretched so far as to defeat the
legislature’s intent. In re Detention of Powell, 217 Ill.
2d 123, 142 (2005) (citing People v. Brooks, 158 Ill. 2d
260, 264 (1994), and People v. Washington, 343 Ill. App. 3d
889, 903 (2003)).
Our appellate court has had cause to consider the
distinguishing characteristics of a fee and a fine, and
explained them as follows:
“A `fine’ is a pecuniary punishment imposed as part of a
sentence on a person convicted of a criminal offense.
People v. Despenza, 318 Ill. App. 3d 1155, 1157 (2001). A
`cost’ is a charge or fee taxed by a court such as a
filing fee, jury fee, courthouse fee, or reporter fee.
Despenza, 318 Ill. App. 3d at 1157. Unlike a fine, which
is punitive in nature, a cost does not punish a defendant
in addition to the sentence he received, but instead is a
collateral consequence of the defendant’s conviction that
is compensatory in nature. People v. Terneus, 239 Ill.
App. 3d 669, 672 (1992). A `fee’ is a charge for labor or
services, especially professional services. Black’s Law
Dictionary 629 (7th ed. 1999).” (Emphasis added.) People
v. White, 333 Ill. App. 3d 777, 781 (2002).
We agree with this characterization. See also Black’s Law
Dictionary 647, 664 (8th ed. 2004) (a “fee” is a “charge
for labor or services, especially professional services,”
whereas a “fine” is a “pecuniary criminal punishment or
civil penalty payable to the public treasury”). Broadly
speaking, a “fine” is a part of the punishment for a
conviction, whereas a “fee” or “cost” seeks to recoup
expenses incurred by the State — to “compensat[e]”
the State for some expenditure incurred in prosecuting the
defendant.[fn1] With these rules in mind, we turn to the
specific provisions at issue in this case.
A. Criminal/Traffic Conviction Surcharge
We first consider the $4 Criminal/Traffic Conviction
Surcharge. This charge was imposed pursuant to section
5-9-1(c-9) of the Unified Code of Corrections (730 ILCS
5/5-9-1(c-9) (West 2004)). At the time of defendant’s
conviction this statute provided as follows:
“There shall be added to every fine imposed in sentencing
for a criminal or traffic offense, except an offense
relating to parking or registration, or offense by a
pedestrian, an additional penalty of $4 imposed. The
additional penalty of $4 shall also be added to every
fine imposed upon a plea of guilty, stipulation of facts
or findings of guilty, resulting in a judgment of
conviction, or order of supervision in criminal, traffic,
local ordinance, county ordinance, or conservation cases
(except parking, registration, or pedestrian violations),
or upon a sentence of probation without entry of judgment
under Section 10 of the Cannabis Control Act or Section
410 of the Controlled Substances Act. Such additional
penalty of $4 shall be assessed by the court imposing the
fine and shall be collected by the circuit clerk in
addition to any other fine, costs, fees, and penalties in
the case. Each such additional penalty of $4 shall be
remitted to the State Treasurer by the circuit clerk
within one month after receipt. The State Treasurer shall
deposit the additional penalty of $4 into the Traffic and
Criminal Conviction Surcharge Fund. The additional penalty
of $4 shall be in addition to any other fine, costs,
fees, and penalties and shall not reduce or affect the
distribution of any other fine, costs, fees, and
penalties.” 730 ILCS 5/5-9-1(c-9) (West 2004).
As defendant notes, the plain language of section
5-9-1(c-9) strongly suggests that the charge ought to be
considered to be in the nature of a fine, not a fee. The
statute repeatedly refers to the charge as a “penalty,”
which connotes a fine, not a fee. See White, 333 Ill. App.
3d at 781. Moreover, the statute states that the “penalty”
is to be “added” to the “fine.” This statutory language
strongly suggests that the legislature intended the
surcharge in section 5-9-1(c-9) to constitute a fine. As
the State notes, the label used by the legislature is not
necessarily definitive. See Crocker v. Finley, 99 Ill. 2d
444, 452 (1984) (holding that although a $5 charge was
consistently labeled a “fee” within the statute imposing
it, it was “in reality a tax”); People v. Elizalde, 344
Ill. App. 3d 678, 682 (2003) (both legislature’s
characterization of charge and charge’s substantive
character are relevant to determination of whether charge
is subject to offset under section 110-14(a)). However, the
label is strong evidence of the legislature’s intent,
especially because the legislature not only referred to the
charge in a consistent fashion as a “penalty” to be “added”
to the “fine” but also used other labels-“other fine,
costs, fees, and penalties” (730 ILCS 5/5-9-1(c-9) (West
2004))-within the same statute, buttressing the conclusion
that the terms used were intentional.
Nevertheless, the State argues that the charge is actually
in the nature of a fee, not a fine. The State calls our
attention to the statute creating the traffic and criminal
conviction surcharge fund, section 9 of the Illinois Police
Training Act (50 ILCS 705/9 (West 2004)). The State notes
that the fund is to be used to train governmental employees
in law enforcement techniques (see 50 ILCS 705/9(2), (4),
(5) (West 2004)), and argues that this makes the charge a
“fee,” according to the definition that a fee is intended to
compensate the State for the costs of prosecuting the
defendant. See White, 333 Ill. App. 3d at 781.
Defendant responds that the State’s argument sweeps far too
broadly, and we agree. The fact that the proceeds of this
charge may be used for general police training does not
mean that the charge reimburses the State for the cost of
prosecuting the defendant and is therefore a fee. As
defendant and our appellate court have noted, section
27.6(a) of the Clerks of Courts Act directs that with
limited exceptions, some portion[fn2] of all “fees, fines,
costs, additional penalties, bail balances assessed or
forfeited, and any other amount paid by a person to the
circuit clerk equalling an amount of $55 or more” are to be
deposited into the Traffic and Criminal Conviction Surcharge
Fund. 705 ILCS 105/27.6(a) (West 2004). This does not mean
that every charge is a fee.
The State also argues that the charge should be considered
a fee based on the precedent of Ali v. Danaher, 47 Ill. 2d
231 (1970). There, we considered the constitutionality of a
$1 “library fee” imposed on all litigants filing civil
actions, which fee was intended to help finance the
construction or upkeep of county law libraries. Several
arguments were raised against the fee: the plaintiff
contended that the fee violated separation of powers
principles, that it constituted an improper “litigation
tax,” and that it was not assessed equally to all
litigants. Ali, 47 Ill. 2d at 234. We upheld the fee. In so
holding, we stated that funding a county law library is a
proper purpose for a “fee,” because such a library “is
conducive to a proper and even improved administration of
justice.” Ali, 47 Ill. 2d at 237. The State argues that
training government employees in law enforcement techniques
is similarly conducive to an improved administration of
justice and therefore the charge at issue in this case
ought be construed as a fee.
The case is clearly distinguishable, for the fundamental
reason that Ali did not involve any attempt to distinguish
between a “fee” and a “fine.” Indeed, the statute imposing
the fee at issue in Ali specified that the fee was to be
assessed only in civil litigation and “`shall not be
charged in any criminal or quasi-criminal case.'” Ali, 47
Ill. 2d at 234, quoting Ill. Rev. Stat. 1969, ch. 81, par.
81. The statement to which the State directs our attention
is taken entirely out of context and is not sufficient to
support the State’s argument that we should override the
statutory language indicating that the charge is a
“penalty.” Moreover, as a final note, we later clarified
that the charge imposed in Ali was in fact not a “fee” but
a “tax,” because the charge was not imposed to defray costs
specific to the litigation in which it was imposed.
Crocker, 99 Ill. 2d at 452 (“court charges imposed on a
litigant are fees if assessed to defray the expenses of his
litigation” (emphasis added)). See also Arangold, 204 Ill.
2d at 148-49 (reaffirming that the charge at issue in Ali,
although labeled a fee, “in reality, was a tax”). Although
the State need not demonstrate that a fee represents the
exact cost incurred in defendant’s litigation (see, e.g.,
White, 333 Ill. App. 3d at 782 (finding probation and lab
analysis fees are fees, not fines, even though State did
not show that they reflected actual costs the state
incurred in prosecuting the defendant’s case)), a fee must
at least relate to charges incurred in the defendant’s
case.
The State also argues that the legislature cannot have
intended to allow this charge to be offset, because
everyone who is arrested spends at least part of one day in
jail and would thus be entitled to at least a $5 credit for
time served. Because this charge is only $4, a $5 credit
would wipe out this charge in all cases. However, as was
observed at oral argument, this fails to consider the fact
that the charge could survive any case where this was not
the only fine imposed against defendant. Our ruling here
does not have the practical effect of extinguishing this
charge in all cases, as the State suggests.
Finally, the State notes that in 2005, subsequent to
defendant’s conviction, the legislature repealed subsection
(c-9) and added the $4 surcharge previously imposed in this
section to a similar $5 surcharge imposed in subsection
(c). Noting that subsection (c) expressly provides that the
charge is not subject to offset for presentencing
incarceration, the State contends that the legislature must
have intended the same to be true of subsection (c-9) all
along. We do not find this argument convincing.
We faced a similar argument in People v. Hare, 119 Ill. 2d
441, 450-51 (1988). There, as here, at the time of the
defendant’s conviction the statute imposing the fine at
issue lacked any provision excluding the fine from offset
for presentencing incarceration credit. In Hare, the
statute imposing the fine was subsequently amended to so
provide. We acknowledged the rule of construction that an
amendment to a statute may be a legislative attempt to
clarify the meaning of the statute, but we also noted a
countervailing rule that an amendment “gives rise to the
presumption that the new legislation was intended to effect
a change in the law as it formerly existed.” Hare, 119 Ill.
2d at 450-51. We stated that which of the two rules should
apply depends on the circumstances involved, specifically,
whether the statute was unclear prior to the amendment. We
concluded in Hare that the statute was not unclear before
the amendment adding the provision excluding the fine from
offset and, accordingly, concluded that the amendment
constituted a change. The same reasoning applies here.
Indeed, as defendant notes, this case would be an even less
likely candidate than Hare for interpreting an amendment as
a clarification of prior legislative intent, because the
legislature did not amend subsection (c-9); it repealed
that subsection.
Finally, we note that although subsection (c) has existed
for a number of years, subsection (c-9) enjoyed a
comparatively brief existence, enacted in 2003 and repealed
in 2005. For the entire time that subsections (c) and (c-9)
coexisted, subsection (c) contained the provision that the
charge imposed therein was not subject to offset, while
subsection (c-9) contained no such provision. This fact,
that the legislature enacted subsection (c-9) without the
exclusion when subsection (c) of the same statute did
contain such a provision, further strengthens our
conclusion that the “penalty” imposed pursuant to
subsection (c-9) was not intended to be exempted from
offset.
Accordingly, we conclude that the charge imposed by section
5-9-1(c-9) is subject to offset.
B. Assessment Controlled Substance
We next address the $500 “Assessment Controlled Substance.”
This charge, imposed pursuant to section 411.2(a) of the
Illinois Controlled Substances Act (720 ILCS 570/411.2(a)
(West 2004)), is commonly referred to as a “drug
assessment.” Section 411.2 provides in relevant part as
follows:
(a) Every person convicted of a violation of this Act,
and every person placed on probation, conditional
discharge, supervision or probation under Section 410 of
this Act, shall be assessed for each offense a sum fixed
at:
* * *
(4) $500 for a Class 3 or Class 4 felony;
* * *
(e) A defendant who has been ordered to pay an assessment
may petition the court to convert all or part of the
assessment into court-approved public or community
service. One hour of public or community service shall be
equivalent to $4 of assessment. The performance of this
public or community service shall be a condition of the
probation, conditional discharge or supervision and shall
be in addition to the performance of any other period of
public or community service ordered by the court or
required by law.
(f) The court may suspend the collection of the
assessment imposed under this Section; provided the
defendant agrees to enter a substance abuse intervention
or treatment program approved by the court Upon
successful completion of the program, the defendant may
apply to the court to reduce the assessment imposed under
this Section by any amount actually paid by the defendant
for his participation in the program. The court shall
not reduce the penalty under this subsection unless the
defendant establishes to the satisfaction of the court
that he has successfully completed the intervention or
treatment program.” (Emphasis added.) 720 ILCS
570/411.2(a), (e), (f) (West 2004).
Our appellate court has consistently concluded that a
section 411.2 drug assessment is a “fine,” not a “fee,” and
thus is subject to offset by presentencing incarceration
credit. See, e.g., People v. Youngblood, 365 Ill. App. 3d
210, 214-15 (2006); People v. McNeal, 364 Ill. App. 3d
867, 873-74 (2006); Fort, 362 Ill. App. 3d at 5-8 (and
cases cited therein); People v. Gathing, 334 Ill. App. 3d
617, 620 (2002); People v. Brown, 242 Ill. App. 3d 465, 466
(1993). We agree with these decisions.
Fort is instructive on this point. There, the appellate
court noted that by labeling the charge an “assessment,”
the legislature did not clearly indicate whether the charge
was in the nature of a fine, subject to offset, or in the
nature of a fee. However, the legislature did refer to the
charge as a “penalty” in subsection (f), a term which
denotes a fine, not a fee. Fort, 362 Ill. App. 3d at 7.
Moreover, assuming that the statute was ambiguous, Fort
noted that the legislative history characterized the charge
as a fine:
“Referring to the proposed section 411.2, Senator
Cullerton asked: `I’m just curious, though, if-does this
reallocate money which is now being sent somewhere, or
does it purport to increase the fines for people who are
charged with drug offenses?’ (Emphasis added.) Senator
Barkhausen, a sponsor of the bill, answered:
`Yes, it’s an increase. It’s a new fine; although, we had
amended the bill a second time through, and I believe the
provisions are here again-I was just looking for them-to
give the court some discretion to require community
service work for those who can’t pay fines. But this is
new money. It’s not a reallocation of any old money.’
(Emphasis added.)” Fort, 362 Ill. App. 3d at 7, quoting
87th Ill. Gen. Assem., Senate Proceedings, July 18, 1991,
at 186-87 (statements of Senators Cullerton and
Barkhausen).
Finally, Fort noted that although the drug assessment had
been construed as a fine for several years, and the
legislature had numerous times amended section 411.2, the
legislature had never taken action to override the
unanimous conclusion that the drug assessment was subject
to offset. This fact lends support to the conclusion that
the legislature acquiesced in the earlier decisions, and
constitutes a strong reason to adhere to the prior
decisions. Fort, 362 Ill. App. 3d at 8 (quoting Agnew, 105
Ill. 2d at 280, and citing People ex rel. Department of
Labor v. Tri State Tours, Inc., 342 Ill. App. 3d 842, 847
(2003)).
The State acknowledges the above authority. Indeed, the
State admits in its brief to this court that the assessment
is “punitive in nature” and “its purpose is not related to
compensating the state for the costs of criminal
investigation and prosecution.” However, the State argues
that the legislature has the authority to exempt specific
charges from the $5 credit allowed by section 110-14 of the
Code of Criminal Procedure and contends that the
legislature did implicitly exempt the section 411.2 drug
assessment by providing that the assessment could be
reduced or removed if the defendant performed community
service or participated in a substance abuse intervention
or treatment program. See 720 ILCS 570/411.2(e), (f) (West
2004). The State argues that permitting a defendant to
receive presentencing incarceration credit would violate
the legislative intent to promote community service and drug
treatment by providing that community service and drug
treatment would be the only ways to reduce the drug
assessment.
We reject this argument. Nothing in the statute indicates
that the legislature intended that community service and
drug treatment would be the exclusive means to reduce a
drug assessment. The notion that the legislature intended
to preempt presentencing credit is dealt a severe blow by
the fact that the presentencing credit is mandatory, whereas
the reductions provided for in subsections (e) and (f) are
discretionary. Compare 725 ILCS 5/110-14(a) (West 2004)
(“Any person shall be allowed a credit of $5 for each
day” (emphasis added)) with 720 ILCS 570/411.2(e) (West
2004) (“[a] defendant may petition the court to convert
all or part of the assessment into court-approved public or
community service” (emphasis added)) and 720 ILCS
570/411.2(f) (West 2004) (“The court may suspend the
collection of the assessment imposed under this Section;
provided the defendant agrees to enter a substance abuse
intervention or treatment program approved by the court
Upon successful completion of the program, the
defendant may apply to the court to reduce the assessment
imposed under this Section by any amount actually paid by
the defendant for his participation in the program”
(emphases added)).
Moreover, the State provides no explanation why the
legislature would have taken such a circuitous route of
implicit preemption when it could simply have spelled out
that the assessment was not subject to reduction for
presentencing incarceration credit, as the legislature has
done in numerous other statutes. See, e.g., 705 ILCS
105/27.6(b) (West 2004) (“This additional fee of $100 shall
not be considered a part of the fine for purposes of any
reduction in the fine for time served either before or
after sentencing”); 705 ILCS 105/27.6(b-1) (West 2004)
(“This additional fee of $5 shall not be considered a part
of the fine for purposes of any reduction in the fine for
time served either before or after sentencing”); 705 ILCS
105/27.6(c) (West 2004) (“This additional fee of $100 shall
not be considered a part of the fine for purposes of any
reduction in the fine for time served either before or
after sentencing”); 705 ILCS 105/27.6(c-1) (West 2004)
(“This additional fee of $5 shall not be considered a part
of the fine for purposes of any reduction in the fine for
time served either before or after sentencing”); 730 ILCS
5/5-9-1(c) (West 2004) (“Such additional penalty shall not
be considered a part of the fine for purposes of any
reduction in the fine for time served either before or
after sentencing”); 730 ILCS 5/5-9-1(c-5) (West 2004)
(“This additional fee of $100 shall not be considered a
part of the fine for purposes of any reduction in the fine
for time served either before or after sentencing”); 730
ILCS 5/5-9-1(c-7) (West 2004) (“This additional fee of $5
shall not be considered a part of the fine for purposes of
any reduction in the fine for time served either before or
after sentencing”); 730 ILCS 5/5-9-1.1(c) (West 2004)
(“This additional fee of $5 shall not be considered a part
of the fine for purposes of any reduction in the fine for
time served either before or after sentencing”); 730 ILCS
5/5-9-1.6 (West 2004) (“Such additional penalty shall not
be considered a part of the fine for purposes of any
reduction in the fine for time served either before or
after sentencing”); 730 ILCS 5/5-9-1.10 (West 2004) (“This
additional fee of $100 shall not be considered a part of the
fine for purposes of any reduction in the fine for time
served either before or after sentencing”); 730 ILCS
5/5-9-1.11(a) (West 2004) (“The additional penalty shall
not be considered a part of the fine for purposes of any
reduction in the fine for time served either before or
after sentencing”). Clearly the legislature knows how to
provide that a particular charge is not to be subject to
reduction by credit for presentencing (or postsentencing)
incarceration, and the legislature did not do so with
respect to the drug assessment.
Further, the State’s argument ignores the fact observed in
Fort that the drug assessment has consistently been
construed as a fine subject to reduction for presentencing
incarceration, and the legislature has never amended the
statute in any way so as to repudiate those holdings. This
indicates legislative acquiescence in the construction
accorded to the statute by the previous decisions. Agnew,
105 Ill. 2d at 280; Tri State Tours, Inc., 342 Ill. App. 3d
at 847. Accordingly, we agree with the appellate court that
the drug assessment is subject to reduction by credit for
presentencing incarceration pursuant to section 110-14 (a)
of the Code of Criminal Procedure (725 ILCS 5/110-14(a)
(West 2004)).
C. Trauma Fund
The final charge which the appellate court determined was
subject to the presentencing incarceration credit is the
$100 Trauma Fund charge. The statutory authority for this
charge is found in section 5-9-1.1(b) of the Unified Code
of Corrections (730 ILCS 5/5-9-1.1(b) (West 2004)), which
provides as follows:
“(b) In addition to any penalty imposed under subsection
(a) of this Section [which mandates imposition of a fine
at least equivalent to the street value of the drugs
seized], a fine of $100 shall be levied by the court, the
proceeds of which shall be collected by the Circuit Clerk
and remitted to the State Treasurer under Section 27.6
of the Clerks of Courts Act for deposit into the Trauma
Center Fund for distribution as provided under Section
3.225 of the Emergency Medical Services (EMS) Systems
Act.” 730 ILCS 5/5-9-1.1(b) (West 2004).
There is no question that the $100 Trauma Fund charge is a
fine. Not only is it called a fine, it is also referred to
as an “addition to” a “penalty,” and it is clearly not
intended to reimburse the state for any expense of
prosecution or investigation. Moreover, section 5-9-1.1(b)
does not contain any provision to the effect that the
Trauma Fund charge is not subject to setoff.
The State concedes all of these points. Nevertheless, the
State contends that the legislature did not intend for this
fine to be subject to reduction for time served prior to
sentencing. The State bases its argument on the reference
to section 27.6 of the Clerks of Courts Act. That section
provides in pertinent part as follows:
“(c) In addition to any other fines and court costs
assessed by the courts, any person convicted for a
violation of [inter alia, the Illinois Controlled
Substances Act] shall pay an additional fee of $100 to the
clerk of the circuit court. This amount, less 2Ë?% that
shall be used to defray administrative costs incurred by
the clerk, shall be remitted by the clerk to the Treasurer
within 60 days after receipt for deposit into the Trauma
Center Fund. This additional fee of $100 shall not be
considered a part of the fine for purposes of any
reduction in the fine for time served either before or
after sentencing.” (Emphasis added.) 705 ILCS
105/27.6(c) (West 2004).
The State contends that section 27.6(c) of the Clerk of
Courts Act, along with its explicit direction that the $100
charge is not subject to reduction for presentencing
incarceration, is incorporated by reference into section
5-9-1.1(b) of the Unified Code of Corrections. In two
recently published decisions the appellate court has
agreed with this argument, and concluded that the $100
Trauma Center Fund charge is not subject to offset for
presentencing incarceration. See People v. Jones, 366 Ill.
App. 3d 666 (2006); People v. Squire, 365 Ill. App. 3d 842
(2006).
Defendant raises a compelling response to this analysis,
however. Defendant notes that sections 5-9-1.1(c) and
5-9-1.10 of the Unified Code of Corrections (730 ILCS
5/5-9-1.1(c), 5-9-1.10 (West 2004)) not only refer to
section 27.6 of the Clerks of Courts Act but also expressly
state that the charges assessed therein are exempt from
presentencing credit offset. Defendant argues that to
conclude that the reference to section 27.6 of the Clerks
of Courts Act is sufficient to preclude offset would render
the anti-offset language in these other statutes redundant
and superfluous. The State responds, essentially, that
these other statutes are irrelevant because the
legislature’s intent is perfectly clear.
We find defendant’s argument convincing. Sections
5-9-1.1(c) and 5-9-1.10 not only provide that the charges
assessed therein are to be remitted pursuant to section
27.6 of the Clerks of Courts Act but also explicitly state
that the charges are not subject to offset. If the
legislature intended the mere reference to the Clerks of
Courts Act to suffice to exempt the charges from offset, as
the State argues, then the anti-offset language contained
in sections 5-9-1.1(c) and 5-9-1.10 would be entirely
redundant and superfluous. We reject the State’s contention
that we should ignore this fact; our rule that we construe
statutes as a whole is intended to avoid just such a
situation as the defendant brings to our attention, where
one possible construction would render another statutory
provision meaningless or superfluous. See Jones, 214 Ill.
2d at 193; Bonaguro, 158 Ill. 2d at 397. This is not to say
that defendant’s construction is clearly correct; his
argument that the Trauma Fund charge imposed by section
5-9-1.1(b) is subject to offset would seem to render
meaningless the anti-offset language in the Clerks of
Courts Act. Neither construction is perfect, and it is not
clear which construction the legislature would prefer. In
such circumstances, we are guided by the rule that
ambiguity in criminal statutes must be resolved in that
manner which favors the accused. Davis, 199 Ill. 2d at 140;
Brooks, 158 Ill. 2d at 264. Accordingly, we conclude that
the Trauma Fund charge is subject to setoff.
We invite the legislature to clarify this ambiguity. Unless
and until it does so, however, we must agree with the
appellate court that the Trauma Fund charge is subject to
setoff. To the extent that the decisions in Jones, 366 Ill.
App. 3d 666, and Squire, 365 Ill. App. 3d 842, conflict
with our holding, they are overruled.
II. Constitutionality of Section 5-9-1.1(c) of the Unified
Code of Corrections
The other issue in this case is the constitutionality of
section 5-9-1.1(c) of the Unified Code of Corrections (730
ILCS 5/5-9-1.1(c) (West 2004)). The State argues that the
appellate court erred in finding the statute
unconstitutional. The State argues that the $5 charge is a
fine, not a fee, and fines need not satisfy the same due
process concerns as fees. In the alternative, the State
contends that collecting a $5 fee from drug offenders is
reasonably related to the goal of funding spinal cord
injury and paralysis research. Defendant responds that the
statute must satisfy due process whether the charge is
labeled a fee or a fine, and argues that the appellate
court was correct in holding that simple drug possession is
too attenuated from spinal cord injury for this court to
find a rational relation between the two.
Statutes are presumed constitutional (Arangold Corp. v.
Zehnder, 187 Ill. 2d 341, 351 (1999)), and we have the duty
to construe statutes so as to uphold their
constitutionality if there is any reasonable way to do so
(People v. Inghram, 118 Ill. 2d 140, 146 (1987)). The party
challenging the validity of a statute has the burden of
clearly establishing a constitutional violation. In re
R.C., 195 Ill. 2d 291, 296 (2001). Because
constitutionality is a pure question of law, our standard
of review is de novo. Davis v. Brown, 221 Ill. 2d 435, 443
(2006).
Defendant argues specifically that section 5-9-1.1(c)
violates substantive due process. The parties agree that
the statute does not impact on fundamental rights.
Accordingly, the relevant standard by which the statute is
evaluated is rational basis review. Davis, 221 Ill. 2d at
450. To be upheld under this standard, the statute need
merely bear a rational relationship to a legitimate state
interest. Davis, 221 Ill. 2d at 450. Although this standard
of review is quite deferential, it is not “toothless”
(Mathews v. De Castro, 429 U.S. 181, 185, 50 L. Ed. 2d 389,
394, 97 S. Ct. 431, 434 (1976)), and we must strike down
provisions which run afoul thereof (People v. Lindner, 127
Ill. 2d 174, 184 (1989)).
The appellate court found that section 5-9-1.1(c) failed to
pass the rational basis test. In so holding, the court,
following Rodriguez, 362 Ill. App. 3d 44, and Fort, 362
Ill. App. 3d 1, focused solely on whether the statute bore
a rational relationship to the interest of funding research
into finding a cure for spinal-cord-injury-related
paralysis. The court held that whatever connection might
exist between possession of a controlled substance and
spinal-cord-injury-related paralysis was simply too tenuous
and abbreviated to satisfy due process. Several recent
decisions of the First District of the appellate court have
reached the same conclusion, also relying on Fort and
Rodriguez. See People v. Gorosteata, No. 1-04-2469 (
September 29, 2006); People v. Morrison, 367 Ill. App. 3d
581 (2006); People v. Blakney, 366 Ill. App. 3d 925 (2006);
People v. Jones, 366 Ill. App. 3d 666, 670 (2006). See also
People v. McNeal, 364 Ill. App. 3d 867, 875 (2006) (finding
statute unconstitutional in context of possession with
intent to deliver).
The parties agree that the State has a legitimate interest
in finding a cure for spinal-cord-injury-related paralysis.
The dispute with respect to that interest centers on
whether section 5-9-1.1(c) bears a rational relationship
thereto. However, the State also argues that the charge
imposed by the statute is a fine, and thus serves another
interest: punishment of a convicted criminal. When viewed in
this light, the State argues, the $5 charge imposed by
section 5-9-1.1(c) is clearly a rational
nondisproportionate penalty to impose for the offense of
which the defendant has been convicted, possession of a
controlled substance. The State contends that it is
irrelevant that the money collected is earmarked for a
particular purpose, the only inquiry should be whether the
charge imposed is rationally related to punishment for
defendant’s crime. The State argues that in light of the
fact that possession of a controlled substance can incur a
fine of up to $25,000 (see 730 ILCS 5/5-9-1(a)(1) (West
2004)), the $5 charge imposed pursuant to section
5-9-1.1(c) cannot be considered disproportionate. The State
argues that therefore the charge ought to be upheld.
Defendant disagrees. He argues that the charge is a fee, as
indicated by the plain language of the statute, and argues
further that the State ought to be estopped from arguing
otherwise, because the State argued that the charge was a
fee in the appellate court proceedings. Defendant reasons
that if the charge is a fee, it does not have the purpose
of punishment, and thus the appellate court’s analysis must
be followed. Defendant argues in the alternative that even
if we were to find the charge to be a fine, this court’s
precedent still requires that there be a rational
relationship between the crime committed and the interest
served by the particular punishment the legislature has
chosen to impose, citing Lindner, 127 Ill. 2d 174.
A. “Fee” or “Fine”?
Thus the first question we must address is whether the
charge imposed by section 5-9-1.1(c) is a fee or a fine.
As a threshold matter, defendant argues that the State
should not be permitted to take the position that the
charge imposed by section 5-9-1.1(c) is a fine, because the
State stated that the charge was a fee in a footnote in its
appellate court brief. We disagree that the State is
precluded from arguing that the charge is a fine.
Defendant’s complaint sounds in the doctrine of judicial
estoppel. As this court has explained,
“Five elements are generally required for the doctrine of
judicial estoppel to apply: the party to be estopped must
have (1) taken two positions, (2) that are factually
inconsistent, (3) in separate judicial or quasi-judicial
administrative proceedings, (4) intending for the trier of
fact to accept the truth of the facts alleged, and (5)
have succeeded in the first proceeding and received some
benefit from it.” (Emphasis added.) People v. Caballero,
206 Ill. 2d 65, 80 (2002).
Application of the doctrine is discretionary. Caballero,
206 Ill. 2d at 80.
The doctrine does not apply in this case for a number of
reasons. First, the State’s two positions were not
factually inconsistent-there was no dispute that the charge
was imposed, the only question was whether the charge was a
“fine” or a “fee.” These positions were merely legally
inconsistent. Second, the State’s two positions were not
adopted in separate proceedings. The appeal before this
court is a continuation of the proceedings before the
appellate court and the proceedings before the circuit
court. Finally, the doctrine cannot apply because the State
did not succeed or receive any benefit from its position in
the appellate court. Accordingly, we proceed to the merits.
Section 5-9-1.1(c) provides as follows:
“In addition to any penalty imposed under subsection (a)
of this Section, a fee of $5 shall be assessed by the
court, the proceeds of which shall be collected by the
Circuit Clerk and remitted to the State Treasurer under
Section 27.6 of the Clerks of Courts Act for deposit into
the Spinal Cord Injury Paralysis Cure Research Trust
Fund. This additional fee of $5 shall not be considered a
part of the fine for purposes of any reduction in the fine
for time served either before or after sentencing.” 730
ILCS 5/5-9-1.1(c) (West 2004).
As defendant notes, the statute does call the charge a
“fee.” This constitutes strong evidence as to how the
charge should be characterized. However, as previously
noted, the label attached by the legislature is not
necessarily definitive. See Crocker, 99 Ill. 2d at 452 (a
charge labeled a “fee” was “in reality a tax”); Elizalde,
344 Ill. App. 3d at 682. We note that the statute is
ambiguous, in that although the statute does label the
charge a fee it also states that the charge “shall not be
considered a part of the fine for purposes of any reduction
in the fine for time served either before or after
sentencing.” If the charge were truly a fee, there would be
no need for the legislature to have included this language
because, as the parties agree, the credit for presentence
incarceration can only reduce fines, not fees. See 725 ILCS
5/110-14 (West 2004). Thus to conclude the charge is a fee
would render this section of the statute superfluous, a
construction to be avoided. Jones, 214 Ill. 2d at 193;
Bonaguro, 158 Ill. 2d at 397.
In this case, notwithstanding the label attached by the
legislature, we believe that the charge at issue is in fact
a fine. The legislature’s label is strong evidence, but it
cannot overcome the actual attributes of the charge at
issue, as we have repeatedly recognized. See Boynton v.
Kusper, 112 Ill. 2d 356, 365 (1986) (holding that a portion
of the marriage license “fee” which had no relation to the
services supposedly supported by that fee “is a tax”);
Crocker, 99 Ill. 2d at 452 (although legislature labeled
charge a “fee” it was “in reality a tax” because “court
charges imposed on a litigant are fees if assessed to
defray the expenses of his litigation”). See also Arangold,
204 Ill. 2d at 148-49 (noting that the charges at issue in
Boynton and Crocker, although labeled fees, were in fact
taxes). In this case, the $5 charge imposed pursuant to
section 5-9-1.1(c) possesses only the attributes of a fine
and none of the attributes of a fee. To begin, the charge
is imposed only after conviction for a criminal offense, it
is contained in article 9 of chapter V of the Unified Code
of Corrections-an article entitled “Fines”-and it is
payable to the state treasury. The appellate court in
Rodriguez found these characteristics insufficient to
override the plain language of the statute. See Rodriguez,
362 Ill. App. 3d at 51-52. But Rodriguez does not appear to
have considered what we consider to be the most important
fact, that this charge does not seek to compensate the
state for any costs incurred as the result of prosecuting
the defendant. This is the central characteristic which
separates a fee from a fine. A charge is a fee if and only
if it is intended to reimburse the state for some cost
incurred in defendant’s prosecution. Boynton, 112 Ill. 2d
at 364-65; Crocker, 99 Ill. 2d at 452; White, 333 Ill. App.
3d at 781; People v. Terneus, 239 Ill. App. 3d 669, 672
(1992). In this case, with respect to this charge, all
evidence is to the contrary-indeed, defendant’s central
argument is that the purpose of the charge is not even
rationally related to the crime he committed. The charge is
clearly a fine, the label notwithstanding.
Defendant argues that the charge is not in the nature of a
fine because the amount of the charge does not vary
depending on the severity of defendant’s conduct, citing
People v. Youngblood, 365 Ill. App. 3d 210 (2006). We find
this argument unconvincing. In Youngblood, the court
addressed the question of whether the drug assessment
pursuant to section 411.2 was subject to offset for
presentencing credit pursuant to section 110-14. The court
concluded that the drug assessment was in the nature of a
fine-and, thus, subject to offset-because, inter alia, the
funds are payable to a public treasury, and nothing
indicated that the assessment was intended as a charge for
labor or services. Youngblood, 365 Ill. App. 3d at 214. The
court went on to note that the State argued that the
assessment should be construed as a fee because it was
“`unrelated to the relative infamy of the defendant’s
behavior.'” Youngblood, 365 Ill. App. 3d at 214. The court
dispensed with this argument by simply noting that the
assessment did vary with the seriousness of the defendant’s
conduct. Youngblood, 365 Ill. App. 3d at 214-15, citing 720
ILCS 570/411.2 (West 2002). Youngblood does not stand for
the proposition that a charge must vary with the severity of
conduct in order to constitute a fine, and we decline to
create any such rule. In this case, despite the fact that
the charge does not vary with severity of behavior, the
other attributes of the charge convince us that it is
properly characterized as a fine, not a fee. Accordingly,
the $5 charge may properly be viewed as a criminal
penalty.[fn3]
B. Due Process
Defendant argues that even viewed as a criminal penalty,
the $5 charge still violates his due process rights. It is
true that even criminal penalties must comport with due
process. People v. Upton, 114 Ill. 2d 362, 373 (1986).
However, it is well established that the legislature has
broad authority to determine the nature and extent of
criminal penalties. Courts will not interfere with the
legislature’s determinations in this regard unless a
challenged penalty clearly exceeds what is permitted by the
“very broad and general constitutional limitations
applicable.” People ex rel. Carey v. Bentivenga, 83 Ill. 2d
537, 542 (1981).
There can be no serious argument that a $5 fine is so
disproportionate to the offense of possession of a
controlled substance as to violate defendant’s substantive
due process rights, and defendant does not so argue.
Rather, he argues that it violates his due process rights
that this portion of his fine is designated specifically
for deposit in the Spinal Cord Injury Paralysis Cure
Research Trust Fund. We reject this argument. A defendant
has no basis for protesting the usage to which his criminal
fines are put. The sole inquiry is whether the amount of
the fine is excessive when compared to the criminal conduct
in which the defendant is found to have engaged. So far as
the propriety of inflicting a pecuniary punishment on a
defendant is concerned, it makes no difference whether the
fines are designated for deposit in the Spinal Cord Injury
Paralysis Cure Research Trust Fund or the general state
treasury. As our appellate court has noted,
“We are unaware of a decision of a court of review in
which the fact that the proceeds from a fine or penalty is
earmarked for a particular fund serving a governmental
purpose has affected the validity of the fine or penalty.
No case has been called to our attention in which as
here, fines or penalties are earmarked for a fund and
a particular relationship has been required to exist
between the offense for which the fine is imposed and the
use to be made of the fund.” People v. Wilson, 144 Ill.
App. 3d 290, 295 (1986).
Indeed, if due process required that fines only go to
purposes related to the particular crime committed by the
defendant who incurred the fine, all fines might be called
into question. Section 27.6(a) of the Clerks of Courts Act,
with very few exceptions, guides the disbursement of all
fines collected (among numerous other charges), and
clearly not all moneys collected are directed to purposes
specifically related to the crimes that individual
defendants have committed. For instance, section 27.6(a)
directs that a portion of all fines go to the Violent Crime
Victims Assistance Fund, another portion to the Traffic and
Criminal Conviction Surcharge Fund, another portion to the
Drivers Education Fund, and still another portion is
directed for deposit into the Trauma Center Fund. 705 ILCS
105/27.6(a) (West 2004). Given the wide variety of ends to
which those moneys are directed, it is difficult to
conceive of any crime with respect to which the fines might
be upheld were defendants permitted to contest their fines
on the basis that they went to purposes unrelated to their
particular crime.
Defendant contends that our decision in Lindner did strike
down a criminal penalty because the end served by the
punishment was insufficiently related to the crime. We
disagree with this reading of Lindner. There, we struck
down on due process grounds a section of the Illinois
Vehicle Code which provided for automatic revocation of the
driver’s licenses of convicted sex offenders. Initially we
determined that the purpose of the revocation statute was
the “safe and legal operation and ownership of motor
vehicles,” based on explicit statutory language to that
effect in the Vehicle Code. See Lindner, 127 Ill. 2d at
182. We found that the revocation in question bore no
rational relationship to that interest, because the crime
of which the defendant was convicted neither involved a
motor vehicle nor bore any rational relationship to his
ability to drive a motor vehicle safely. Lindner, 127 Ill.
2d at 182-83.
We went on to consider the State’s arguments as to
alternate purposes the statute might serve. The first
purpose suggested by the State was punishment. We assumed,
arguendo, that the license revocation constituted
punishment but stated that, even so,
“We fail to see, however, how identifying the purpose as
punishment cures the constitutional infirmity. The
revocation of defendant’s license would then be an
additional penalty for a criminal offense, and the same
rational-basis test would apply. [Citations.] The penalty
of license revocation bears no relationship to the
offense. Moreover, if punishment is the purpose, the
statute is arbitrary for the same reason we identified
earlier. There is no rational basis for choosing the
particular offenses in section 6-205(b)(2), as opposed to
other offenses not involving a vehicle, to receive the
punishment of revocation. If the legislature may punish
these offenses with revocation, nothing prohibits it
from imposing that penalty for violating any provision of
the Criminal Code, a result that would be plainly
irrational.” (Emphasis added and omitted.) Lindner, 127
Ill. 2d at 184-85.
Our decision in Lindner does not support defendant’s
argument-quite the opposite. Defendant argues that even if
the charge is a fine, we must evaluate whether spinal cord
paralysis research bears a rational relation to drug
possession-the crime of which he was convicted. But we did
not engage in this analysis in Lindner. There, once we
assumed for purposes of analysis that license revocation
was punishment, we did not address whether safe roads were
related to sexual assault, the crime there at issue.
Rather, we considered whether it was rational to inflict
the punishment of license revocation for the offense of
sexual assault. We did not look beyond the punishment
inflicted to any other purpose that punishment might serve.
Thus, Lindner would dictate that in this case, once having
determined that the charge at issue was a punishment, we
consider only whether it is rational to impose the
punishment of a $5 fine for the offense of drug possession.
The answer is clearly yes. Lindner does not support
looking beyond the fine to whatever other purpose the fine
might serve, i.e., spinal cord injury paralysis research.
Nor does the last above-quoted sentence from Lindner
suggest a different result, as it could not be considered
“plainly irrational” for the legislature to choose to add a
$5 fine to all provisions of the Criminal Code.
Our decision in Crocker, 99 Ill. 2d 444, noted above, also
does not support defendant’s position. The case is
distinguishable. There, the charge at issue constituted a
litigation tax on matrimonial litigants. Here, by contrast,
the charge is a fine imposed as punishment for a criminal
conviction. The analysis in Crocker is inapposite to the
present case.
The $5 charge imposed by section 5-9-1.1(c) of the Unified
Code of Corrections, although labeled a “fee,” is in fact
in the nature of the fine. Thus, its purpose is punitive.
Accordingly, the fact that the proceeds of that fine are
earmarked for a specific purpose is irrelevant to its
constitutionality. So far as the defendant who is subject to
a monetary fine is concerned, due process requires only
that the punishment imposed be rationally related to the
offense on which he is being sentenced. In the context of
fines, the inquiry is whether the amount of the fine is
grossly disproportionate to the offense. In this case, that
test is clearly satisfied. Accordingly, the judgment of the
appellate court on this issue is reversed. All other
judgments of the appellate court which have held this
statute invalid are hereby overruled on this point.
Because we find the charge constitutional on this basis, we
need not address the State’s alternate argument that there
is a rational relation between simple drug possession and
spinal cord injury paralysis research.
CONCLUSION
For the reasons above stated, we affirm in part and reverse
in part the judgment of the appellate court. We reverse the
appellate court’s determination that section 5-9-1.1(c) of
the Unified Code of Corrections (730 ILCS 5/5-9-1.1(c)
(West 2004)) violates due process. However, we affirm the
appellate court’s determination that the Traffic and
Criminal Conviction Surcharge (730 ILCS 5/5-9-1(c-9) (West
2004)), the “drug assessment” (720 ILCS 570/411.2(a)(4)
(West 2004)), and the Trauma Fund charge (730 ILCS
5/5-9-1(b) (West 2004)) are subject to offset for
presentencing incarceration credit. Accordingly, we conclude
that defendant is entitled to a credit of $604.
Appellate court affirmed in part and reversed in part.
[fn1] Because this case does not require us to differentiate
between a “fee” and a “cost,” we will hereinafter simply
refer to them both as “fees,” as opposed to a “fine.”
[fn2] Specifically, “5.052/17” of 16.825%. 705 ILCS
105/27.6(a) (West 2004).
[fn3] This determination serves to distinguish all of the
appellate court cases holding that section 5-9-1.1(c)
violates due process. Of all of these decisions, only the
seminal case, Rodriguez, even purported to address the
State’s argument that the charge was a fine, rather than a
fee. However, as noted in the text, Rodriguez did not
consider the essential character of the charge. See
Rodriguez, 362 Ill. App. 3d at 51-52. Notably, Rodriguez
drew a dissent on this precise point. See Rodriguez, 362
Ill. App. 3d at 54-55 (Quinn, P.J., dissenting). None of
Rodriguez’s progeny even attempted to perform any analysis
of their own of the fee/fine distinction; every case simply
deferred to the Rodriguez majority. See People v.
Gorosteata, No. 1-04-2469 (September 29, 2006); Morrison,
367 Ill. App. 3d 581; Blakney, 366 Ill. App. 3d 925; Jones,
366 Ill. App. 3d at 670; McNeal, 364 Ill. App. 3d at 875.