ILLINOISREFORM COMMISSION MEETING
Thursday, April 9, 2009
Introduction
Thank you Chairman Collins and members of the Commission for this opportunity to address you on the topic of enforcement of laws related to public and political corruption in our state. I applaud the Illinois Reform Commission and I agree with most of the recommendations you have made thus far. We can and we should tighten our laws to make corruption less likely in Illinois. I have a few proposals of my own that I will discuss in a few minutes. But I want to make the point that Mr. Collins and other members of this Commission have made, there are no sure fire ways to end corruption. In the words of one of your presenters, “There is no silver bullet.” The best way to clean up corruption in Illinois is to elect and appoint honest leaders. We don’t need new laws to tell them what is right and what is wrong. At a recent seminar on public corruption Michael J. Hutter stated, “Unfortunately, our review of public corruption convictions in the states indicates that there is apparently little correlation between strong laws and integrity – if a public official wants to violate his or her trust, the laws don’t stand in the way.” (Presentation by Michael J. Hutter, “Prosecuting Public Corruption Officials/Figures For Corruption: The Approach in the United States”)
Prosecutors in Illinois devote a majority of their resources to battling street crime. We also recognize the challenge to prosecutors in Illinois today to exercise leadership in the law enforcement structure to enhance public confidence in government. “If street crime threatens the social fabric of American life, governmental crime destroys the political fabric by undermining trust and belief in the legitimacy of government on which our entire political system is based.” Charles Silverman, Criminal Violence, Criminal Justice. Prosecutors are well aware of the fact that simply put public corruption breeds disrespect and contempt for all laws.
The Chicago Tribune and other media outlets have been critical of Illinois prosecutors for not doing enough. In a February 15, 2009 editorial, the Chicago Tribune asked, “Can we entice state and local prosecutors to more aggressively pursue public corruption – a duty that until now they’ve left largely to the feds.” While this may in many instances be true, I can tell you that in my office the investigation and prosecution of both public corruption and other forms of white collar crime have been a top priority since I was first elected. You have before you a sampling of about 40 cases in the past several years involving allegations of official misconduct by both elected officials and public employees. That is not to say more cannot be done in my own county. The reality is that in many areas Illinois laws are archaic. There is no question, as this Commission and members of the media have pointed out, that the federal government has more financial resources and investigative powers than their Illinois state counterparts. In order for Illinois prosecutors to meet the challenge of rooting out corruption and restoring faith and confidence in government we must be given the tools to do so effectively.
SPECIFIC PROPOSALS
(Extend statute of limitations for public corruption)
Public corruption cases almost always involve conspiracies and cover ups. The investigations are lengthy and burdensome. They involve paper, computerized data, public and private business records, bank records, intellectual property, securities, etc. We have often found that by the time we open a case we are in jeopardy of blowing the statute of limitations. That means we have to drop or ignore other pending matters in order to fully investigate the suspected criminal activity. The Illinois statute of limitations for any offense involving misconduct by a public officer or employee can be extended one year after a prosecutor becomes aware of the offense, but not more than three years beyond the expiration of the traditional three year statute. The statute itself (720 ILCS 5/3-6(b)) is confusing. Theoretically, when reading the statutes together, prosecutors have three plus no more than three years from the commission of the offense to bring an indictment. It would be preferable to simply make the statute a six year (or longer) limitations for public corruption.
AMEND THE OFFICIAL MISCONDUCT STATUTE
It is a commonly understood principle that people, whether in the public or private sector, who have a fiduciary duty to others should not be allowed to use confidential information available to them only by virtue of that office or employment for actual or anticipated financial gains for themselves or others. The official misconduct statute as currently worded incorporates this principle, however a violation occurs only if the public officer or employee while obtaining an advantage for himself or another performs an act in excess of his lawful authority. The official misconduct statute should be amended to incorporate the “Insider information” offense found in the Illinois Procurement Code 30 ILCS 500/50-50, which states, “Insider information. It is unlawful for any current or former elected or appointed State official or State employee to knowingly use confidential information available only by virtue of that office or employment for actual or anticipated gain for themselves or another person.” This conduct under the Procurement Code amounts to only a Class A Misdemeanor. Obviously, the amendment to the official misconduct statute would make this prohibition applicable to all government officials and employees.
EXAMINE PENALTIES FOR PUBLIC CORRUPTION
With the exception of theft in excess of $500,000, which is a Class 1 non- probationable felony, and theft of government property exceeding $100,000, which is a Class X felony, many of our criminal laws addressing public corruption carry lenient penalties. For example, under the Procurement Code it is illegal for a state employee or state contractor doing work with the state to participate in contract negotiations on behalf of the state and also have a contract for future employment or be negotiating for future employment with that same entity. This conduct is currently a business offense carrying a maximum penalty of a $5,000 fine. This is just one example of many laws which are intended to discourage corruption and enhance integrity and public trust in state government, which need to be reviewed and revised if they are ever to achieve their purpose.
I have proposed a bill to amend the public contractor misconduct statute (725 ILCS 5/33-7) to add a padding element. Senate Bill 1819 and House Bill 2651 have both passed their respective houses and have been passed to the other body for consideration. This new law will give us clear authority to go after corrupt contractors who pad their bills to government for goods and services costing the taxpayers millions of dollars a year, even at the local level. This bill also provides that any person or corporation convicted is banned for 10 years from doing business with government or holding public office. The provision also gives the Attorney General or the State’s Attorney authority to bring a civil suit and recover treble damages from the offending contractors on behalf of the injured government body.
ENFORCEMENT TOOLS
As I mentioned in my opening remarks, Illinois prosecutors lack the effective enforcement tools available at the federal level. For example, we are one of only 12 states in the country that criminalizes one-party consent recorded conversations, even at the request of law enforcement absent a court order or some specific exemption which to this date has not included a public corruption exemption. It is no wonder that public corruption prosecutions by state prosecutors are considered rare in Illinois. One need only research the public contractor section of our criminal code. You will find that under Article 33 E (Public Contracts) there has not been a single reported Appellate Court decision in more than 20 years.
STATE’S ATTORNEY INVESTIGATIVE SUBPOENAS
I am fortunate to be the State’s Attorney in a county with two sitting grand juries. The investigative authority of the grand jury allows me to fulfill my clear responsibility to develop available evidence sufficient to support criminal charges and equally, if not more importantly, to clear persons who have been wrongly accused. Unfortunately, the majority of counties in Illinois do not have sitting grand juries and as a result prosecutors and their law enforcement partners are extremely limited in uncovering relevant evidence where they have less than probable cause, but more than a mere suspicion that a crime has occurred. I have proposed that Illinois take a long overdue step and enact a State’s Attorney Investigative Subpoena Statute. Senate Bill 1815 and House Bill 2671 are still pending in their respective bodies. Our proposal simply codifies the existing authority of State’s Attorneys to investigate criminal activity through the issuance of a court ordered subpoena. The proposal provides for judicial oversight, guarantees subpoenaed parties a right to counsel and insures secrecy, similar to our current grand jury statute. This proposal is not new and is a result of my conversations with my colleagues across Illinois, particularly in downstate counties. While the passage of this law will be especially helpful in those counties without a sitting grand jury, it will also provide an opportunity to obtain crucial information in emergency situations, such as cases involving flight or the imminent destruction of evidence. A recent survey of Illinois State’s Attorneys, as well as conversations with law enforcement officials across Illinois, demonstrates overwhelming support for this legislation. The need for this legislation is highlighted in the remarks on the surveys from my colleagues:
- State’s Attorneys should be able to provide an independent voice to inquire or investigate matters where law enforcement may not have an interest or tools to properly flesh out a public problem.
- Investigative subpoenas would not only establish probable cause, but avoid wrongful charging decisions.
- There is no question that a continuous investigative subpoena power is necessary for our offices, especially with the rise of identity theft and financial crimes.
- Investigative subpoenas would be a great asset in all financial investigations.
- Recently had difficulty seeking to use an investigative subpoena in a financial exploitation of the elderly case. A judge has taken our request for bank records under advisement.
- With a lack of a grand jury or investigative subpoena power, we have lost crucial information such as text messages.
- Because we have a two month gap between grand juries we cannot obtain documents we need to further an investigation.
- Our county cannot afford to empanel a grand jury. Could not even pay the travel money. (Several counties)
- Several counties responded saying that they had not had a grand jury convened ever, within the last 8 years, 5 years, 4 years, etc.
The proposal that we put forward will require training on an annual basis by the Illinois State’s Attorney’s Association in cooperation with the Illinois Attorney General on the legal, ethical and practical aspects of investigative subpoenas. This is the approach that has been taken in many states, including Michigan, where the Attorney General’s Office has put together an excellent manual on investigative subpoenas which discusses the law in detail and provides forms and suggestions on procedures. Investigative subpoenas, such as we have proposed are now available to prosecutors in a number of states, including Utah, Maryland, Michigan, Missouri, Arkansas, Delaware, Florida, Hawaii, Iowa, Indiana, Kansas, Montana, and Oregon. There is legislation pending in several other states along a similar vein because it just makes sense. As the Illinois Appellate Court for the Fourth District said in People v. Nohren, 219 Ill.Dec.320 (Fourth District 1996) “If State’s Attorneys did not have such investigative power, it would lead to the perverse result that the State must formally charge an individual prior to investigating the factual basis for the charge.” This observation was made by current Illinois Supreme Court Justice Rita Garman.
ELECTRONIC EAVESDROPPING
During the course of the past 20 years I have worked with law enforcement and with the General Assembly in order to bring Illinois out of the dark ages when it comes to obtaining arguably the best evidence in any investigation, the targets’ words on tape. Applications for eavesdropping orders are time consuming and tedious. Furthermore, where a party is consenting there is no federal or state constitutional right involved. I fully support Cook County State’s Attorney Anita Alvarez’ proposal to add public corruption/official misconduct investigations to the exemption under the eavesdropping act where there has been prior notification and approval of the State’s Attorney. I also have an eavesdropping bill pending in the House Rules Committee. This proposal, House Bill 3958, would create a whistleblower exemption to our eavesdropping statute similar to the exemption for private citizens who have reasonable suspicion to believe a crime has been committed or is about to be committed against them or a family member. 725 ILCS 5/14-3(i). The bottom line is this, Illinois’ archaic eavesdropping statute deprives the people of the State of Illinois of an opportunity to both hold offenders accountable and to ascertain the truth in many cases, especially public corruption cases. When offenders’ conversations are recorded, the number of cases litigated decreases dramatically, resulting in tremendous cost savings to the taxpayers. Even with our existing laws, I have encouraged law enforcement to take advantage of obtaining an eavesdropping order whenever possible. (In 2008 nearly 100 were approved) We do this in public corruption cases, narcotics cases, and even to a limited degree child sexual abuse cases. The simple fact is the truth becomes clearer and the only issue is punishment.
OTHER SUGGESTIONS
In 1978 the state of Maryland created the Office of the State Prosecutor to restore public confidence in state government. The Office has successfully prosecuted various cases involving public corruption.
The Illinois Attorney General should create a public integrity strike force within her office in partnership with the Illinois State Police and Illinois’ State’s Attorneys. These strike forces could be modeled after our successful Metropolitan Enforcement Groups and funding could in part be found through creative amendments to our fine and forfeiture laws. There is clearly a lack of coordination in prosecution of public corruption in our state. Most Illinois state’s attorneys have small offices and have no investigative resources. Furthermore, many do not have the accumulated skill and experience or the variety of personnel necessary for the optimum functioning of a public integrity/financial crimes unit. Even in my office, which has achieved tremendous success in investigation and prosecution of public corruption and white collar crime, resources are scarce. The next administration must invest heavily in fraud detection, including both law enforcement personnel as well as forensic computer labs. The statewide grand jury act should be amended to allow the Attorney General to conduct public corruption investigations in cooperation with the state’s attorneys. The Attorney General currently takes conflict cases and assists local state’s attorneys when requested. The Attorney General should be able to open investigations where appropriate, wherever public corruption is occurring and the local state’s attorney either requests her assistance or lacks the resources to get the job done.
TRAINING
Public corruption and white collar crime are simply not on the radar screen for most law enforcement agencies with the exception of offenses like forgery, etc. which have identifiable victims in their communities. With the exception of a few people who pay attention and the media, hardly anyone pays attention to the low level corruption that has become epidemic in our state. I believe in applying the “broken windows” philosophy to public corruption. Unfortunately, many of these crimes are not investigated because even low level corruption investigations require tremendous time and resources. Through training, the Illinois State’s Attorneys Association and the Attorney General can go a long way to changing attitudes in our state and convincing prosecutors to bring these cases. By doing so, we will restore public faith in government and meet our responsibility to exercise leadership on this issue. I have provided you with some numbers that reflect what our office has done during the past 10 years by making white collar crime and public corruption priorities. The spreadsheet you have lists cases that involved allegations of official misconduct. All of the offenders were elected officials or public employees. We have doubled the number of investigations and nearly doubled the number of grand jury subpoenas issued.
As the prosecution of former Governor George Ryan demonstrated, training of government lawyers on ethics, politics and public policy is critically important. Lawyers representing public agencies represent the public not the office holder. That is not to say that attorney-client privilege and the work product doctrine have no place in government representation, however it is critically important that both public officials and attorneys are fully apprised of the ethical limitations and their respective responsibilities.
CONCLUSION
It has often been said that the costs of public corruption are incalculable. Perhaps the greatest cost is the loss of young people who are deterred from public and political service because of the reputation the wrongdoers have created.
