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03/26/96 DEPARTMENT CORRECTIONS v. MATTHEW ADAMS

March 26, 1996

THE DEPARTMENT OF CORRECTIONS, FOR THE USE OF THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MATTHEW ADAMS, #N60078, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Logan County. No. 92L42. Honorable Gerald G. Dehner, Judge Presiding.

Rule 23 Order Redesignated Opinion and Ordered Published April 23, 1996. Released for Publication April 23, 1996. As Corrected August 28, 1996.

Justices: Honorable Robert J. Steigmann, J., Honorable Rita B. Garman, J., Concurring, Honorable Frederick S. Green, J., Dissenting

The opinion of the court was delivered by: Steigmann

The Honorable Justice STEIGMANN delivered the opinion of the court:

In October 1992, plaintiff, Illinois Department of Corrections (Department), sued defendant, Matthew Adams, to recover costs it had incurred during Adams' incarceration, pursuant to section 3-7-6 of the Unified Code of Corrections (Code) (730 ILCS 5/3-7-6 (West 1992)). Following a bench trial in October 1994, the trial court entered judgment for plaintiff in the amount of $88,988.29.

Defendant appeals, arguing first that section 3-7-6 of the Code is unconstitutional because it (1) violates the ex post facto clause of the United States Constitution (U.S. Const., art. I, § 10) as applied to defendant, (2) constitutes cruel and unusual punishment in violation of the eighth amendment of the United States Constitution (U.S. Const., amend. VIII) and violates the limitation of penalties after conviction clause in article I, section 11, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 11), and (3) violates the due process clause of the fifth amendment of the United States Constitution as applied to the states through the fourteenth amendment (U.S. Const., amends. V, XIV). Defendant also argues that the Department did not prove his ability to pay and that the trial court erred in admitting statistical summaries to prove the costs of incarcerating him.

We affirm.

I. BACKGROUND

Department records show two periods of incarceration for defendant: (1) one beginning on January 10, 1986, and ending March 27, 1988; and (2) another beginning April 12, 1991, and continuing through the date of the bench trial in October 1994. At trial, the Department presented evidence showing the periods that defendant was incarcerated at each of several correctional facilities, the actual expenditure for each facility during the period of defendant's confinement, the average daily population for each facility during that period, and the average cost of incarceration for a generic inmate at each facility during that period. Based on this evidence, the Department calculated the total cost of defendant's incarceration at $88,988.29. The Department also presented testimony that defendant had a balance of $833.12 in his inmate trust fund and that $774.94 of that balance was not protected from a collection action. Defendant offered no evidence, choosing not to appear at trial.

More than three years before defendant was first incarcerated, the Illinois legislature added the following provision to the Code:

"The Director may require convicted persons committed to Department correctional institutions or facilities to reimburse the Department for the expenses incurred by their incarceration to the extent of their ability to pay for such expenses. The Attorney General, upon authorization of the Director, may institute actions in the name of the people of the State of Illinois to recover from convicted persons committed to Department correctional institutions or facilities the expenses incurred by their confinement. Such expenses recovered shall be paid into the General Revenue Fund." Ill. Rev. Stat. 1983, ch. 38, par. 1003-7-6.

See also Pub. Act 82-717, § 2, eff. July 1, 1982 (1981 Ill. Laws 3819, 3820).

In 1987, the legislature eliminated the last sentence of this section regarding submission of the expenses to the general revenue fund. Ill. Rev. Stat. 1989, ch. 38, par. 1003-7-6; see Pub. Act 85-736, § 2, eff. Sept. 22, 1987 (1987 Ill. Laws 3145, 3146). Then in 1991, the legislature substituted the phrase, "The Director shall, when reasonably able, require" (Pub. Act 86-1320, § 6, eff. Jan. 1, 1991 (1990 Ill. Laws 2387)) for the phrase "The Director may require" (Ill. Rev. Stat. 1989, ch. 38, par. 1003-7-6). Further, the phrase "shall institute actions" (Pub. Act 86-1320, § 6, eff. Jan. 1, 1991 (1990 Ill. Laws 2387)) was substituted for "may institute actions" (Ill. Rev. Stat. 1989, ch. 38, par. 1003-7-6). Thus, when the trial court entered judgment for the Department in October 1994, section 3-7-6 of the Code read as follows:

"The Director shall, when reasonably able, require convicted persons committed to Department correctional institutions or facilities to reimburse the Department for the expenses incurred by their incarceration to the extent of their ability to pay for such expenses. The Attorney General, upon authorization of the Director, shall institute actions in the name of the people of the State of Illinois to recover from convicted persons committed to Department correctional institutions or facilities the expenses incurred by their confinement." 730 ILCS 5/3-7-6 (West 1992).

II. CONSTITUTIONAL ISSUES

Illinois courts always begin their analysis of the constitutionality of legislation with the presumption that the statute is constitutional. Rehg v. Illinois Department of Revenue, 152 Ill. 2d 504, 511-12, 605 N.E.2d 525, 529, 178 Ill. Dec. 731 (1992), overruled on other grounds Wilson v. Department of Revenue, 169 Ill. 2d 306, 662 N.E.2d 415, 214 Ill. Dec. 849 (1996). The party challenging the statute bears the burden of "clearly establishing that the statute is unconstitutional." Rehg, 152 Ill. 2d at 512, 605 N.E.2d at 529.

A. The Ex Post Facto Clause

Defendant argues that section 3-7-6 of the Code, as applied to him, violates the federal constitution's ex post facto prohibition by increasing his punishment for past crimes. See U.S. Const., art. I, § 10; Dobbert v. Florida, 432 U.S. 282, 292-93, 53 L. Ed. 2d 344, 355-56, 97 S. Ct. 2290, 2298 (1977). However, the ex post facto clause only applies to laws which are criminal or penal. In re Bell, 147 Ill. 2d 15, 34, 588 N.E.2d 1093, 1101, ...


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