By The Beachwood Illinois Reform Commission Affairs Desk
Editor’s Note: This is the fourth part of a multi-part series excerpting the final report from the Illinois Reform Commission. We don’t necessarily endorse all parts of the report, but offer it up as a starting point to generate support for bringing real structural change to Illinois’ sordid political culture.
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ENFORCEMENT
I. Introduction
For far too long, Illinois has allowed the federal government to serve as its primary check on public corruption.
The Commission recognizes that there are examples of successful corruption prosecutions in Illinois at the state and local levels, and notes that in other cases Illinois law enforcement agencies have worked jointly with the federal government. At other times, however, the ability of Illinois prosecutors to successfully investigate and prosecute corruption has been constrained by limitations on the authority and independence of state enforcement agencies, as well as the investigative and prosecutorial tools available to them.
The Commission believes that Illinois need not, and should not, rely upon the federal government to solve the problem of corruption in state government.
Our state’s history of public corruption demonstrates a clear need for stronger enforcement mechanisms. In general, the testimony heard and received by the Commission revealed major constraints on the scope of prosecutorial and investigative tools available to Illinois authorities in public corruption cases compared to their counterparts at the federal level and in many other states.
The Commission also heard testimony that made clear that adjustments to the power and independence of state enforcement agencies would greatly enhance their ability to investigate and prosecute corruption in state government.
The Commission understands that prosecutors and investigators can abuse their powers, but this abuse can occur whether the authorities are federal, state, or local, appointed or elected.
The bottom line is that state and local authorities around the country are often given the same powers and tools as their federal counterparts, and have generally used these powers and tools as appropriately as federal enforcement authorities. These powers and tools mean that the state and local authorities in other states have much greater ability to investigate and prosecute public corruption.
This is simply not the case in Illinois, where the laws hamstring the enforcement authorities in a way that is highly atypical around the country. In the Commission’s view, it is an important and healthy step for Illinois to let its enforcement authorities operate in a more normal fashion. We believe that this will have the positive effect of increasing the amount of effective law enforcement effort in the area of public corruption.
The Commission believes that, at a minimum, state and local authorities should be armed with the types of time-tested prosecutorial and investigative tools available to federal authorities and other states in corruption cases. Effective change begins, however, with a decision to make enforcement of public corruption crimes a priority. The Commission therefore also recommends removing certain structural limitations on the power and independence of enforcement agencies, which should increase public accountability by eliminating some of the often-cited excuses for why public corruption investigations have languished in the past.
Accordingly, the Commission recommends:
1. Amending and enhancing state laws to provide prosecutors and investigators with many of the same tools available to federal authorities;
2. Adding significant corruption offenses to the existing list of offenses that are non-probationable;
3. Granting the Illinois Attorney General the authority to independently conduct grand jury investigations of public corruption offenses;
4. Directing additional resources to the investigation of public corruption crimes, through an independent public corruption division created within the Illinois State Police; and
5. Modifying the laws applicable to Inspectors General’s Offices to improve the ability of Inspectors General to independently and effectively conduct investigations.
II. Information and Sources Considered
In addition to the testimony and statements provided to the Commission at its April 9, 2009 meeting on these issues, the Commission independently conducted research on the laws and practices in other jurisdictions. Additionally, interested members of the public and other witnesses submitted written and oral testimony and materials for the Commission to consider.
A. Research Reviewed. The Commission conducted research of laws and practices in Illinois and other jurisdictions regarding investigative and prosecutorial powers, as well as the structure of enforcement agencies. Federal law, in particular, provided a key reference point for the Commission in light of the success that federal authorities have had in prosecuting public corruption in Illinois and elsewhere. The Commission also reviewed laws in other states. The Commission’s research identified a number of areas in which Illinois law is deficient or needs amendment to take advantage of enforcement tools and powers that have seen demonstrated success in other jurisdictions.
A number of peculiarities in Illinois law make it more difficult for prosecutors in Illinois to investigate and prosecute public corruption crimes as compared to other jurisdictions.
For example, Illinois is one of only four states that allow neither recording of conversations with the consent of one party to the conversation, nor wiretaps in corruption investigations.
The “two-party consent” rule in Illinois makes it substantially more difficult for state prosecutors to obtain and use consensual recordings, which have played a fundamental role in numerous public corruption prosecutions at the federal level (including prosecutions of numerous corrupt Illinois officials).
Under current Illinois law, prosecutors cannot even obtain judicial approval for a wiretap in corruption cases, because corruption-related offenses are not included in the wiretap statute.
Thus, while state and local prosecutors can use wiretaps to aggressively pursue gang, drug, and gun offenses, they are barred from using wiretaps to aggressively pursue corrupt public officials, no matter how serious the alleged offense.
The Attorney General, the chief legal officer of Illinois, has authority to convene a statewide grand jury to investigate certain specified crimes – but not public corruption. This stands in stark contrast to the scope of Attorney General’s power in Pennsylvania and most other states that have adopted statewide grand jury systems.
And the existing state Racketeer Influenced and Corrupt Organizations (RICO) statute is also extremely limited as compared to those enacted under federal law and in a majority of other states, which further limits prosecutors’ ability to present evidence of systemic corruption to a jury.
In short, given the scope of the corruption problems in Illinois, the Commission believes that Illinois law should be at least equivalent to the best practices developed in other jurisdictions.
The Commission also reviewed the Principles and Standards for Offices of Inspectors General promulgated by the National Association of Inspectors General, as well as the laws and practices for Inspectors General in Illinois and in other jurisdictions. The Commission’s research reveals that the limitations imposed upon the authority of certain state Inspectors General, specifically the Inspectors General created by the Ethics Act adopted in 2003, are significantly more onerous than those found elsewhere or recommended by national experts.
Moreover, the secrecy under which the Inspectors General are required by law to proceed – even after a determination of misconduct – contributes to a lack of public awareness about the importance of ethical conduct and role of the Inspectors General, and erodes public faith in the Inspectors General’s Offices.
B. Commission Witnesses. In its public hearing on April 9, 2009, the Commission heard from a broad range of witnesses with personal knowledge of the challenges facing prosecutors in Illinois, including Governor Pat Quinn; Lisa Madigan, Illinois Attorney General; Joe Birkett, DuPage County State’s Attorney; James Wright, Illinois Executive Inspector General; Jim Burns, Inspector General for the Illinois Secretary of State; Jack Blakey, Chief of Special Prosecutions Bureau for the Cook County State’s Attorney; Scott Turow, Member of the Illinois Executive Ethics Commission, and partner at Sonnenschein, Nath, & Rosenthal LLP; Michael Newman, Associate Director, AFSCME Council 31; and several witnesses from outside of Illinois, including Tom Jordan, Deputy Director of the Oklahoma State Bureau of Investigation; and Amy Zapp and Christopher Carusone, Deputy Attorney Generals for the Pennsylvania Attorney General’s Office. Illinois Secretary of State Jesse White also submitted written testimony to the Commission.
The speakers, many of whose powers and authority might change if the State adopts the Commission’s recommendations, provided a wide variety of substantive recommendations to the Commission for proposed reforms. Illinois Attorney General Lisa Madigan, DuPage County State’s Attorney Joe Birkett, and Chief of Special Prosecutions Bureau for the Cook County State’s Attorney Jack Blakey offered a number of specific recommendations for amendments to existing Illinois law, many of which were modeled after federal law, to enhance the abilities of prosecutors to investigate and prosecute corruption.
Each of them, as well as other witnesses, supported both a one-party consent rule for recording conversations, and expansion of the wiretap statute to include corruption offenses.
They also recommended that additional resources be allocated to public corruption investigations, and both Illinois Attorney General Lisa Madigan and DuPage County State’s Attorney Joe Birkett supported amending the Statewide Grand Jury Act to allow the Attorney General to independently prosecute public corruption.
Lisa Madigan also supported the addition of significant public corruption crimes to the existing list of non-probationable offenses.
The speakers involved in a panel discussion on Inspectors General expressed general agreement that modification to the rules regarding disclosure of sustained investigations was appropriate, despite the need to find a balance between privacy interests and public disclosure.
The testimony of James Wright, Illinois Executive Inspector General, and Jesse White and Jim Burns, Illinois Secretary of State and Inspector General for the Illinois Secretary of State, respectively, highlighted some of the distinctions between the more constrained authority provided to the Executive Inspectors General in the 2003 Ethics Act and the broader authority and independence that the Secretary of State Inspector General is provided in a separate law, 15 ILL. COMP. STAT. 305/14. Scott Turow and Michael Newman helped identify for the Commission the challenges presented in developing standards regarding publication of Inspector General reports.
The witnesses from the Oklahoma State Bureau of Investigation and the Pennsylvania Attorney General’s Office provided examples of how an independent investigative body and statewide attorney general power to investigate corruption, respectively, have helped those states combat corruption.
III. Commission Findings
In light of the testimony and documentation received at the April 9, 2009 hearing, the Commission’s independent research and experience, and other comments and testimony that the Commission received through sub-group hearings and the website, the Commission finds that Illinois law in its current form does not adequately provide prosecutors and investigators with the power and tools to independently and effectively investigate and prosecute public corruption. Existing law also does not sufficiently discourage the culture of corruption that is pervasive in Illinois, or provide sufficient transparency to encourage the public to believe in the efficacy and integrity of enforcement agencies. As a result, the public has developed a cynical view of state enforcement agencies’ interest in and ability to combat public corruption.
The Commission encourages the Governor and General Assembly to implement the recommendations identified below to increase the likelihood that state authorities will successfully investigate and prosecute public corruption crimes, and to improve the public’s faith in the ability of Illinois authorities to police misconduct in state government.
IV. Commission Recommendations
The Commission recommends the following:
A. Criminal Statutes
1. Expand Wiretap Predicates to Include Corruption Offenses: In order to allow prosecutors the ability to use existing wiretap authority to investigate public corruption crimes, the Commission recommends amendments to 725 ILL. COMP. STAT. 5/108B-1, et. seq., that expand the predicate offenses for wiretap authority to include corruption crimes, including bribery, extortion, fraud, official misconduct, government contracting crimes, and RICO crimes. Current law does not allow state and local prosecutors to seek judicial approval of wiretaps for most corruption-related offenses.
2. Allow Recorded Conversations with One-Party Consent: The Commission recommends allowing state and local prosecutors to authorize use of an eavesdropping device where any one party to a conversation to be monitored has consented to such monitoring. Adoption of this recommendation would bring Illinois in line with federal law and the vast majority of states.
3. Amend State Criminal Law to Conform to Federal Law Where Appropriate. A number of time-tested federal laws have proven instrumental in combating public corruption. The Commission recommends that state laws be enacted or amended in the following ways to reduce the disparity between state and federal prosecutors when it comes to their ability to prosecute corruption:
a. State RICO: The Commission supports an expanded and strengthened version of the state RICO law to make it equivalent to the federal RICO law.
b. False Statements: The federal “False Statement” crime, 18 U.S.C. § 1001, makes it a crime to make a false statement to a federal law enforcement officer regarding a matter within the jurisdiction of the federal government. The Commission supports adoption of a similar, but more limited, false statements statute in Illinois.
Specifically, it would constitute a criminal offense for a person to: (1) knowingly make a false statement; (2) to a state or local law enforcement or criminal investigative officer; (3) regarding a criminal matter that the person knows to be under investigation by the officer; (4) if, during the interview, the person is first informed by a prosecutor who is working with the officer on the investigation that a knowing false statement to the officer relating to the investigation would constitute a criminal offense. This statute would complement the existing obstruction of justice statute, which relates to a similar subject but contains different elements – as in the federal system.
The Commission is sensitive to the fact that some are distrustful of law enforcement officials, but fundamentally believes that a statute that has served an appropriate and effective role for federal law enforcement in combating crime – particularly in the area of corruption and other white-collar offenses – is an appropriate statute for our state as well. We believe that witnesses must be discouraged from making false statements to investigative officers. Our suggested language is substantially more narrow than the federal statute, as it only pertains to false statements made (1) regarding a matter under criminal investigation, (2) that the person knows is under investigation, and (3) only when a prosecutor is involved in the investigation and gives an appropriate warning about the consequences of lying. We believe that these limitations will help ensure that the statute is applied appropriately.
c. Fraud. The Commission recommends that the current statute regarding schemes to defraud, 720 ILL. COMP. STAT. 5/17-24, be amended to delete the requirement that a person use a “wire” or “mail” communication. The wire and mail requirements were imported from analogous federal law, where they are necessary in order to establish federal jurisdiction. Under state law, however, no such jurisdictional limitations are necessary, and therefore the wire and mail requirements unnecessarily limit the scope of what otherwise should be a general fraud statute.
d. Extortion. The Commission recommends amending the state theft and intimidation statutes to create a state “extortion” law equivalent to the federal extortion law, 18 U.S.C. § 1951, without the interstate commerce requirement required for jurisdictional reasons in federal law. Federal law defines extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” This change was recommended by Attorney General Madigan, and the Commission agrees that a state extortion law would provide state officials with an appropriate compliment to the bribery law codified at 720 ILL. COMP. STAT. 5/33-1. It is of particular importance in public corruption cases for prosecutors to have use of the “under color of official right” language when attempting to prove an extortion case against a public official. The federal definition acknowledges that in some circumstances, public officials who use their official position to improperly coerce or pressure individuals to give up property may be committing extortion in as serious manner as someone who threatens an individual with violence. Including a new extortion offense that contains this language will give prosecutors an additional, important tool in the fight against public corruption.
e. Theft of public funds. Regarding the theft or embezzlement of public funds, either by public employees or others, federal law defines these offenses more broadly than Illinois law. As recommended by Attorney General Madigan, the Commission recommends that state law be amended so that Illinois law matches federal law in scope regarding these offenses. Given the importance of protecting taxpayer funds from corrupt practices, it is appropriate that Illinois prosecutors have the same tools available to them on this subject as their federal counterparts.
B. Ensuring Appropriate Penalties for Corruption Crimes
Given the scope of the corruption problems in Illinois, the significant cost of corruption to taxpayers, and the heavy damage corruption crimes inflict upon the public’s faith and trust in the integrity of public institutions, the Commission recommends that significant corruption offenses be added to the existing list of crimes that are non-probationable.
Illinois law already prohibits a judge from sentencing a defendant to probation for a wide variety of crimes, including conspiracy to deliver marijuana if the defendant possessed more than 20 marijuana plants and received more than $500, or possession of a gun by someone ineligible for a Firearms Owner Identification card.
Wherever the proper line is between probationable and non-probationable offenses, the Commission believes that significant corruption crimes do great damage to our society and that therefore at least some period of imprisonment is appropriate.
Specifically, the Commission recommends that if a defendant is convicted of a crime that involves the corruption of a public official, whether that official is the defendant or someone else, and the offense is a Class 3 felony or higher, the defendant may not be sentenced to probation and must be sentenced to a term of imprisonment if either:
(1) the defendant was an elected official at the time of the offense, or
(2) the offense involved more than $10,000 in money or property, based on either the value of any corrupt payments or the value of the item that was the object of the corrupt offense.
However, as in federal law, if the prosecutor certifies to the court at the time of sentencing that the defendant has provided substantial assistance in the case or another prosecution of substantial public importance, the prohibition against imposing a sentence of probation should not apply.
C. Attorney General Grand Jury Powers
The Commission recommends that the Statewide Grand Jury Act be amended to give the Attorney General’s Office the power to independently conduct grand jury investigations of public corruption offenses. The current Statewide Grand Jury Act allows the Attorney General of Illinois to convene a statewide grand jury, but only in certain types of cases involving drugs, gangs, or child pornography. Both Illinois Attorney General Lisa Madigan and DuPage County State’s Attorney Joe Birkett voiced their support for the expansion of the Statewide Grand Jury Act in their testimony before the Commission.
Moreover, the Commission heard testimony about the statewide grand jury powers of the Attorney General’s Office in Pennsylvania, where a statewide grand jury has been used to successfully investigate public corruption cases, apparently without any conflict between state and local prosecutors. As the state’s chief legal officer, it seems particularly important for the Attorney General to have the power to independently investigate corruption in state government.
D. Independent Public Corruption Division within Illinois State Police
The Commission recommends that the State establish an independent Public Corruption Division within the Illinois State Police, headed by an officer chosen through an independent selection process. The Illinois State Police is the State’s primary statewide investigative body and is the closest equivalent to a state Bureau of Investigation (as the Illinois State Police used to be called). We therefore believe that it is important and appropriate for this body to play a central role in investigating public corruption in state government.
However, it is a critical part of our recommendation that any Public Corruption Division within the Illinois State Police have much greater independence than the Illinois State Police currently has.
Two primary reasons justify this recommendation:
First, public comments to the Commission make it clear that there is, at minimum, a public perception that the Governor’s office has historically impeded public corruption investigations.
Second, the scope of the corruption problem in Illinois warrants additional investigative resources, a position numerous speakers echoed at the April 9, 2009 hearing.
Specifically, the Commission recommends that the State establish a Public Corruption Division within the Illinois State Police. The head of the Division should have a term of office and not be subject to removal before the expiration of any term except for cause and by a vote of the majority of the Senate after a public hearing. The Division will conduct public corruption investigations regarding criminal matters, and must work directly with a state or local prosecutor’s office on the investigation. If the matter concerns corruption in state government, they must work directly with the Attorney General’s Office, unless the Attorney General’s Office refers the matter to a county prosecutor’s office.
A seven-member panel consisting of one chief of police, one sheriff, one state’s attorney, and four lay members should make the initial appointment of the Division head, recommendation of removal, and any subsequent appointment. The Governor should appoint the panel to serve staggered seven year terms. The Commission heard testimony from the Deputy Director of the Oklahoma State Bureau of Investigation, which has a similar mechanism for oversight and appointment of a director. In Oklahoma, the independent selection process drastically reduced – and effectively ended – the historical problems that the state had experienced with politicians’ attempts to interfere or discourage certain investigations.
The Division officers and staff should be employees of the Illinois State Police but should be chosen by and report to the head of the Division. The Illinois State Police would determine that size of the Division, but a standard investigative team (usually consisting of about ten officers) and support staff would likely be appropriate.
The Illinois State Police could also consider whether the existing Internal Investigations Division, which did some joint investigative work with federal law enforcement during the investigation and prosecution of Governor Ryan, can be modified into a Public Corruption Division with the features being recommended here.
E. Inspector General’s Office
The Commission recommends a number of changes to the Offices of the Inspectors General and their powers, particularly the Inspectors General created under the 2003 State Officials and Employees Ethics Act, to (1) enhance the authority of Inspectors Generals to independently investigate public corruption; and (2) strengthen the public trust in the independence and effectiveness of the Offices of the Inspectors General.
Specifically, the Commission recommends the following:
1. Publication of Summary Reports: Summary reports of sustained findings by Offices of Inspectors General should be made public within 60 days of the report date, unless the relevant Inspector General certifies to the Executive Ethics Commission that publication would interfere with an ongoing investigation. If the ongoing investigation in question is administrative, publication may be delayed by no more than six months. If the ongoing investigation in question is criminal, publication may be delayed by no more than two years, but the Inspector General must re-certify to the Executive Ethics Commission every six months during this period that publication of the summary report would still interfere with the ongoing investigation.
a. The Executive Ethics Commission may not redact the name of any employee from a summary report recommending discipline, if the employees must file a Statement of Economic Interests. The public should have the maximum amount of information regarding summary reports that involve higher-level state employees.
b. The Executive Ethics Commission may use its discretion to decide whether it is in the public interest to redact the employee’s name from a summary report if the employee is not required by law to file a Statement of Economic Interests.
c. The Executive Ethics Commission may not redact an employees’ name in those cases involving prohibited political activity or violations of the gift ban or revolving door provisions.
This would allow the Executive Ethics Commission to strike the proper balance between transparency and privacy when the investigation did not involve higher-level state employees.
For instance, it would allow the Executive Ethics Commission to consider whether redaction of a union employee’s name is appropriate while an ongoing disciplinary appeal is pending.
Furthermore, the Inspector General may redact information in summary reports that would reveal the identity of witnesses, complainants, or informants before publication if the Inspector General determines that it is appropriate to protect their identity.
When the summary report is made public, the disciplinary decision and justification from the state agency should also be made public, along with any response from the employee if the employee wishes.
2. Removal Procedures for Inspectors General:
The Commission believes that an Inspector General should only be removed before the expiration of his or her term if the appointing elected official certifies to the Illinois Senate that there is a “for cause” reason for the Inspector General’s removal and a majority of the Senate votes to remove the Inspector General after a public evidentiary hearing.
Currently, the elected official who appoints an Inspector General (e.g., the Governor) has the power to unilaterally remove the Inspector General by citing a “for cause” reason.
There is no check on this removal power. The best practice around the country is to allow removal only if both the executive and legislative branches approve it, after a public hearing.
Another option is to have a public hearing before, and advisory vote of, the Executive Ethics Commission prior to any attempt by the Governor to remove an Inspector General.
3. Ability to Open Investigations:
The Commission recommends granting authority to Inspectors General to open investigations on their own initiative, or based on anonymous complaints, when they believe that a matter is worth investigating.
Although in his testimony before the Commission, Mr. Newman voiced some concerns about investigations based on anonymous complaints, the vast majority of the witnesses before the Commission as well as the nationwide Association of Inspectors General support a change that would allow Inspectors General to use their experience and expertise to determine which complaints or issues warrant investigation.
Further, anonymous reporting will combat a real fear of reprisal felt by many state employees contemplating reporting misconduct.
Attorney General Lisa Madigan testified before the Commission that she would support the anonymous reporting of complaints to the Inspector General’s Offices.
4. Hiring and Contract Monitors:
The Commission recommends that new units be created in each Inspector General Office to proactively monitor hiring and contracting processes in state government, as recommended by Attorney General Lisa Madigan in her testimony before the Commission.
These units should have full access to all hiring and contracting information in real-time, and should have the ability to make public reports regarding violations in the hiring and contracting processes if they find such problems and are unable to persuade state officials to correct the violation.
5. Protect Inspector General Resources:
The Offices of the Inspectors General must be given sufficient resources to do their work effectively, and their budget must be protected from political meddling by officials who may be unhappy with their work if they are strong and effective.
Accordingly, the Commission recommends that by law, each Inspector General’s annual budget should be no less than 0.1% of the relevant portion of the State annual budget.
6. Consolidation of Inspectors General Offices:
The Commission recommends that the eight Inspectors General Offices established by the 2003 Ethics Act consider and report to the General Assembly in 2009 on whether the Inspectors General should be combined into one Inspector General Office.
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See also:
* Ready For Reform: Chapter One/Executive Summary.
* Ready For Reform: Chapter Two/Campaign Finance.
* Ready For Reform: Chapter Three/Procurement.
Posted on May 12, 2009