Assessing the Assessments

A two-pronged fix The new Court Rules The New Legislation ISC Rules 452, 472, 557 and 558 Clarify who does what when imposing the assessments Adds a review process, hopefully reducing mistakes Clearly define who is responsible for what – and making sure it happens Creates a way to remedy errors after The Criminal and Traffic Assessment Act Simplify the assessment procedure – make it easier for those imposing the assessments to know what to impose Combine and streamline the imposition and collection process, eliminating errors due to confusion Provide relief to those who cannot pay

Imposing the assessments Previously, there was no procedure for who was responsible for what when it came time to impose the assessments Judge declared sentence, someone (sometimes an ASA, sometimes a clerk) prepared the accompanying order imposing fees and fines Problems with this: ASAs had to know the entire assessment system or they would impose the wrong ones (or fail to impose the right ones) Clerks had computerized systems (outside of Cook), but sometimes would make errors, and judges would not sign orders (fines are punishment, and only a judge can impose punishment)

The Supreme Court had enough Issued two new rules with the same basic goal: streamline the process and reduce the errors Makes everyone responsible for correctly imposing and reviewing the assessments Rule 452 and 557 (for criminal and traffic cases) Mandates that the court must “enter a written order imposing the sentence and all applicable fines, fees, assessments and costs against the defendant and specifying applicable credits.” The State (or prosecuting authority) must draft the order Present it to the defendant for review Then submit to the court for final imposition The Supreme Court had enough

How assessments should Now be imposed Judge imposes sentence, including fees, fines and assessments (scheduled and conditional), as well as ordering sentencing credits (days in custody and per diem) State (ASA) drafts written order, reflecting assessments (including the right schedule), fines and credits and presents it to the defendant for review Defendant (most likely through counsel) reviews the order to make sure the correct assessment is imposed, and makes sure credits are applied Both parties present the order to the judge for final review and signing

Eliminating Errors with review Overriding goal: make everyone in the courtroom accountable for making the right assessments Ensures a defendant is paying what s/he is supposed to, but not paying what s/he isn’t Goal is to collect what should have been collected while not imposing hardship on defendants who were forced to pay assessments they shouldn’t have had to pay

The 13 (14) Schedules 705 ILCS 135/15 et seq. Schedule 1: Generic felony offense $549 Schedule 2: Felony DUI offenses $1,709 Schedule 3: Felony drug offenses $2,215 Schedule 4: Felony sex offenses $1,314 Schedule 5: Generic misdemeanor offenses $439 Schedule 6: Misdemeanor DUI offenses $1,381 Schedule 7: Misdemeanor drug offenses $905 Schedule 8: Misdemeanor sex offenses $1,184 Schedule 9: Major traffic offenses $325, $362 (Cook) Schedule 10: Minor traffic offenses $226, $254 (Cook) Schedule 10.5: Truck weight/load offenses $260 Schedule 11: Conservation offenses $195 Schedule 12: ISC R. 529 Dispos (written guilty pleas) $164 Schedule 13: Non-traffic, petty or business offenses $100 The 13 (14) Schedules 705 ILCS 135/15 et seq.

Conditional Assessments 1. Arson – Fire Prevention Fund $500 2. Child Pornography $500 per conviction 3. Crime Lab Drug Analysis $100 4. DNA Analysis – ISP Database $250 5. DNA Analysis – Other $150 6. Drug-related “Full street value” Varies 6.5 Will and Kane county assessment $30 7. Meth offenses “street value” 8. Order of Protection Violation (1) $200 9. Order of Protection Violation (2) $25 10 State’s Attorney Assessment Varies 11. Construction zone – speeding $250 12. Vehicle Code Supervision $.50 13. Household victim assessment $200 per offense 14. DUI – causing accident (emergency services response) $1,000 maximum 15. Drug-related incident (emergency services response) 16. Reckless driving assessment 17. Certain trafficking- and prostitution-related offenses 18. Weapons violations $100 per conviction

the assessments are imposed Now what?

The biggest change was the addition of the assessment waiver for indigent and low-income defendants Schedules – standardizing the assessments means steadier streams of revenue from criminal cases Waivers – protects indigent and impoverished defendants who would never be able to pay and never will pay Defendants who are indigent or income is less than 200% of the federal poverty level get a full waiver Sliding scale for above 200% FPL, up to 400% of FPL The Assessment Waiver

Applying for the Waiver MUST use standardized form from the Supreme Court/AOIC Instructions and application can be found online at Illinoiscourts.gov/forms/approved/default.asp Can apply anytime once a case begins (complaint/indictment filed) MUST apply within 30 days of sentencing – or no relief Applicant/defendant may need to provide proof of indigency or income levels Waivers are mandatory; if the defendant qualifies, the court MUST grant it

Indigency Defined in the Assessment Wavier Section (725 ILCS 5/124A-20) Anyone receiving Means-Based Public Benefits – income already vetted, so no need to show income level Supplemental Security Income (SSI, not Social Security) Aid to the Aged, Blind and Disabled (AABD) Temporary Assistance for Needy Families (TANF) Supplemental Nutrition Assistance Program (SNAP, or Food Stamps) General Assistance, Transitional Assistance, or State Children and Family Assistance Overall household income is less than 200% of the federal poverty level (In 2019, $12,490 for single person, $25,740 for family of four)

If a defendant is not indigent, they can still get relief – sliding scale 75% of assessments waived if income is between 200% and 250% of FPL 50% of assessments waived if income is between 250% and 300% of FPL 25% of assessments waived if income is between 300% and 400% of FPL Sliding scale Waivers

Substantial Hardship Waivers If, in the discretion of the court, the assessments would pose a “substantial hardship” on the defendant, the court can waive them Court may require a hearing and ask for proof of the substantial hardship If the waiver is denied, Court may allow applicant to defer payment of assessments, make installment payments, or other “reasonable terms” Victim provision: If the court finds that imposition of the assessments would cause undue burden on the victim of a case, court may reduce or waive the assessments (does not require the waiver) Substantial Hardship Waivers

Notices should be in every courtroom, informing defendants they have the right to apply for the waiver Prepare the application, and be prepared to offer any kind of proof if possible If denied, the judge MUST explain why Judge MUST use form order from the Supreme Court/AOIC (found on the website with the waivers) What to expect

Fixing the errors (Or, what happens when everyone screws up, like they did for so many years)

Correction of Certain Errors in Sentencing Rules 472 and 558 (“A Rule 472 Motion”) “The circuit court retains jurisdiction to correct the following sentencing errors at any time following judgement[:]” Errors in imposition or calculation of fines, fees, assessments or costs Errors in the application of per diem credit against fines (days in custody = money saved) Errors in the calculation of presentence custody credit (AKA the “We lawyers don’t count so good” rule) Clerical errors in the written sentencing order or other part of the record resulting in discrepancy between the record and actual judgment. Any time = indefinite jurisdiction, upon motion Cannot appeal any of these decisions without first moving in the circuit court to fix the errors, but can appeal after court rules pursuant to the applicable rule