People v. Jones

Docket No. 101996.

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
MICHAEL JONES, Appellee.

Opinion filed December 21, 2006.

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.

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1–04–3117 (unpublished order under Supreme Court Rule 23).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
***

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 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.

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 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

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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

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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 fine. 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

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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).

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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,

-8-
 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.1 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),

1
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.”

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 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

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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 portion2 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

2
Specifically, “5.052/17” of 16.825%. 705 ILCS 105/27.6(a) (West
2004).

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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

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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.

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 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.

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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.

-15-
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)).

-16-
 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

-17-
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.

-18-
 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 2½% 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

-19-
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

-20-
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,

-21-
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

-22-
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

-23-
(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

-24-
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.3

3
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.

-25-
 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).

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.

-26-
 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

-27-
 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

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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.

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