NOTE: The following information was updated to explore the effect of Public Act 101-645. Since this Act became effective on June 26, 2020, certain Illinois rules have changed concerning the expungement or sealing arrests, charges, and convictions.
Forgery is a crime that has gone through many changes under the Illinois criminal code. This offense is a Class 3 felony which is punishable by 2-5 years in prison. The maximum fine for such an offense is $25,000. But the court can also order the defendant to pay restitution, which is unlimited.
The offense is found at section 720 ILCS 5/17-3. While many parts of the statute remain unchanged, the legislature broadened the definition of forgery. The effect of the new law is that more conduct would constitute a prosecutable offense under that section.
What is the definition of forgery in Illinois?
The offense of forgery is defined as the following:
A person commits forgery when, with intent to defraud, [they] knowingly makes a false document or alters any document to make it false and that document is apparently capable of defrauding another.
See 720 ILCS 5/17-3.
It is also forgery to issue or deliver such a document or possess such a document with intent to issue or deliver, knowing it to be fraudulent. An example would be depositing a fraudulent check at a bank with knowledge that the check was fraudulent.
The new statute broadens the definition of forgery. Under the earlier law, the document had to seem as though it was created by another person in order to be illegal. This new definition provides that a document can be a forgery even where it bears the name and signature of the person who actually made it. The identity of the maker does not matter.
720 ILCS 5/17-3 Explanation
720 ILCS 5/17-3 provides that a document is a forgery where two elements are present:
- It is false; and
- The document is capable by its appearance of defrauding another.
This is a simpler definition of forgery, because it removes the necessity of proving that the document purports to have been created by another. The State now has to prove only that it was false and capable of defrauding someone in order to obtain a guilty verdict.
Illinois Forgery Penalties & Sentencing
The penalties for forgery remain the same. But one should know that in cases such as these, the court will almost always order restitution. This is the legal term for “restoring” the victim by compensation. By statute, restitution can be no more than actual loss by the victim. Where the victim was reimbursed by an insurance policy, the defendant should only be liable for paying the deductible, because that would be the only loss.
As in the case of most Class 3 felonies, the defendant is eligible for probation as opposed to a term of imprisonment. Probation for a Class 3 felony can last as long as 30 months (2.5 years). During that time, the judge can order payment of restitution and all other standard terms and conditions of probation – such as counseling, community service, random testing for alcohol and drugs, etc.
If the defendant fails to complete all that is required of him by the probation department, the case will be referred to the State’s Attorney for filing of a Petition to Revoke (PTR). This petition, called a Violation of Probation in Cook County, asks the judge to re-sentence the defendant for failing to meet all of their obligations under the sentencing order. If it is shown that the defendant violated their sentence, the court can sentence him to jail or even 2-5 years in the Illinois Department of Corrections (IDOC).
Note that the judge cannot re-sentence the defendant for failure to pay restitution unless the prosecution can prove that the non-payment was a willful refusal to pay. The principle here is the court should not punish people who do not have financial means. But just because the law says this does not mean that the courts will always follow these guidelines.
For example, many judges and defendants would disagree about how much income should go towards paying restitution. While a defendant may believe it would be unfair to have to work three jobs and live in the woods to save on rent, some judges would disagree.
And this is why a charge for forgery can be so dangerous. It is more than just a matter of paying someone back.
Furthermore, a conviction for forgery is a permanent record that can never be expunged or sealed. The Illinois State Police Bureau of Identification will transit a record of the conviction nationwide to all employers.
Additionally, the order for restitution can last even after a period of probation. A person sentenced to IDOC can, as a condition of their parole, be required to pay restitution. And the money made while working in the prison facility (e.g., stamping license plates) can be confiscated for restitution.
While the above summarizes the potential penalties for forgery, it should be understood that these are defensible cases. Ultimately, an arrest or charge for forgery that did not result in a conviction can be expunged or sealed under Illinois law. Consequently, an effective defense can go a long way in reducing the consequences of an alleged forgery offense.
Mental State of the Defendant in Forgery Cases
One of the most important issues in a forgery case is the mental state of the defendant. The question is whether the prosecution can prove that the defendant really intended to defraud anyone. Absent proof beyond a reasonable doubt, the defendant should be acquitted.
In cases where the defendant delivered a document that defrauded another, such as a fraudulent check, the issue is whether the defendant really knew it was a fraudulent check. It is fundamentally unfair to judge a defendant on the same terms as a banker. Checks and other deposit instruments come in all colors, shapes, and sizes. Some have a signature and others do not. The average person is not always expected to know the difference.
A person making a deposit should be afforded some protection by the court. It is unreasonable to place the burden on average people to figure out whether every check they receive is fraudulent.
The same principal applies to legal documents. A jury should be sympathetic to a person who is not a lawyer and having to rely on what appears to be a legal document.
One possible outcome in these cases is a reduction of the offense to a Class A misdemeanor. This outcome always depends on the offender’s background and the strength of the prosecution’s case. But most importantly, it depends on the willingness of the defense lawyer to fight for their client.