Illinois Official Reports

Supreme Court

People v. Clark, 2019 IL 122891

Caption in Supreme

Court:

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. 

ELIZABETH M. CLARK, Appellee.

Docket No. 122891

Filed

Rehearing denied

June 6, 2019

October 2, 2019

Decision Under 

Review

Appeal from the Appellate Court for the Third District; heard in that 

court on appeal from the Circuit Court of Whiteside County, the Hon. 

Stanley B. Steines, Judge, presiding.

Judgment Appellate court judgment reversed. 

Circuit court judgment affirmed. 

Cause remanded.

Counsel on

Appeal

Lisa Madigan, Attorney General, of Springfield (David L. Franklin, 

Solicitor General, and Michael M. Glick and Eldad Z. Malamuth, 

Assistant Attorneys General, of Chicago, of counsel), for the People.

James E. Chadd, State Appellate Defender, Patricia Mysza, Deputy 

Defender, and Pamela Rubeo, Assistant Appellate Defender, of the 

Office of the State Appellate Defender, of Chicago, for appellee.
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Justices JUSTICE NEVILLE delivered the judgment of the court, with 

opinion.

Justices Thomas, Kilbride, and Garman concurred in the judgment and 

opinion.

Justice Burke dissented, with opinion, and dissented upon denial of 

rehearing, without opinion, joined by Chief Justice Karmeier and 

Justice Theis.

OPINION

¶ 1 Defendant, Elizabeth M. Clark, pled guilty to charges of burglary and unlawful use of a 

credit card and was released on bond pending the imposition of sentence. While awaiting 

sentencing, defendant was found guilty by the circuit court of violating section 31-6(a) of the 

Criminal Code of 2012 (Criminal Code) (720 ILCS 5/31-6(a) (West 2014)) for knowingly 

failing to report to the Whiteside County Jail, as required by her bail bond.

¶ 2 The appellate court found that defendant’s failure to report did not constitute an escape 

because she was not in custody while on bond awaiting sentencing. 2017 IL App (3d) 140987, 

¶ 11. The appellate court reversed the circuit court, and we granted the State’s petition for leave 

to appeal (Ill. S. Ct. R. 315(a) (eff. Nov. 1, 2017)). For the reasons that follow, we reverse the 

judgment of the appellate court and affirm the judgment of the circuit court.

¶ 3 I. BACKGROUND

¶ 4 The record contains the following uncontested facts. On October 31, 2012, defendant, who 

has a history of alcohol and substance abuse, pled guilty in the circuit court of Whiteside 

County to one count each of burglary and unlawful use of a debit card. While awaiting 

sentencing, defendant was released on bond so she could seek and receive substance abuse 

treatment. Defendant was sentenced to 90 days in jail, with credit for time served, followed by 

a term of 30 months’ probation. As conditions of her probation, defendant was ordered to 

satisfactorily complete substance abuse evaluation and treatment, refrain from possessing or 

consuming alcohol or other prohibited substances, submit to periodic urine tests, and pay 

certain fees and fines.

¶ 5 In January 2013, the State filed a petition alleging violation of probation. Defendant was 

taken into custody, and the court found that defendant violated the terms of her probation. In 

February 2013 she was released on a $50,000 recognizance bond to receive treatment. On April 

19, 2013, defendant’s probation was revoked, and she was resentenced to 74 days in jail, time 

served, and a new probation term of 30 months. 

¶ 6 In July 2013, the State filed another petition alleging violation of probation, and in 

September 2013, the court found that defendant violated the terms of her probation. In 

December 2013, defendant was taken into custody. On January 9, 2014, the circuit court 

released defendant on a temporary recognizance bond of $50,000. The court released defendant 

into the custody of her father for transportation directly to the White Oaks treatment center for 

inpatient substance abuse treatment.
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¶ 7 Defendant successfully completed inpatient treatment at White Oaks, and thereafter, on 

February 25, 2014, the circuit court entered an order modifying the conditions of her bond. 

Defendant’s bond was modified to require her to directly enter into the Margaret Stutsman 

Lodge, which is a halfway house featuring an extended residential care program for persons 

recovering from drug and alcohol addiction. Defendant was allowed to leave the halfway house 

for purposes of employment, medical needs, and 12-step program meetings. The modified 

bond condition also required that upon her release or discharge from the lodge, “for whatever 

reason (including but not limited to withdrawal, discharge, or successful completion of 

treatment), the Defendant must immediately return to the custody of Whiteside County Jail 

using the most direct route of travel and without delay or departure therefrom.”

¶ 8 On June 5, 2014, defendant left the halfway house but failed to report to the Whiteside 

County Jail. That same day, the State filed an application to increase defendant’s bond, and the 

circuit court issued an arrest warrant. On June 17, 2014, at the close of a hearing, defendant’s 

April 2013 sentence of probation was revoked, and she was resentenced on her original 

offenses. On the burglary conviction, defendant was sentenced to 3 years’ imprisonment with 

281 days’ credit and 2 years of mandatory supervised release. On the debit card conviction, 

she was concurrently sentenced to one year of imprisonment with 281 days’ credit and one 

year of mandatory supervised release.

¶ 9 On the day defendant failed to report to the county jail, the State also filed an information 

charging defendant with the offense of escape in violation of section 31-6(a) of the Criminal 

Code, which is divided into two independent clauses: one clause containing an escape from 

custody provision and the other clause containing a knowing failure to report provision. 720 

ILCS 5/31-6(a) (West 2014). The State charged that “defendant, having been convicted of the 

felony offense of Burglary and Unlawful Use of Debit Card, knowingly failed to report to the 

Whiteside County Jail as required on June 6, 2014, in accordance with the terms and conditions 

of her Temporary Recognizance Bond.” Defendant surrendered herself to the Whiteside 

County Jail on June 14, 2014.

¶ 10 The circuit court conducted a stipulated bench trial on September 23, 2014, in which the 

court accepted the above-recited stipulated facts. In the stipulation, defendant admitted that 

after she left the Margaret Stutsman Lodge she did not report directly to the county jail and 

acknowledged that the conditions of her bond required her to do so.

¶ 11 Seeking acquittal, defense counsel argued, inter alia, that because defendant was out on 

bond and was not serving a prison sentence at the time she failed to report to the county jail, 

this failure amounted to a violation of her bond, rather than an escape. Counsel asserted that 

escape is the unauthorized departure from custody and, since a defendant who is free on bond 

is not in custody, there is no custody from which to escape.

¶ 12 The prosecutor argued that the plain language of the knowing failure to report provision 

does not require that a defendant be “in custody.” According to the prosecutor, a convicted 

felon who knowingly fails to report to a penal institution has committed the offense. The 

prosecutor further argued that, because both of those elements were satisfied in defendant’s 

case, she was guilty of violating section 31-6(a) despite the fact that she had been released on 

bond.

¶ 13 The circuit court found defendant guilty of escape. In so doing, the court noted that 

defendant had been convicted of two felony charges and was awaiting sentencing for those 
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convictions. Further, the court observed that the terms of her recognizance bond required her 

to return immediately to the Whiteside County Jail after her discharge from the halfway house. 

The circuit court determined that defendant’s knowing failure to report to the county jail after 

leaving the halfway house constituted a violation of section 31-6(a). Accordingly, the court 

found that the State had satisfied its evidentiary burden, and the court convicted defendant of 

the offense of escape. After denying defendant’s motion for a new trial, the circuit court 

sentenced defendant to 30 months’ probation, to be served consecutively to the prison term she 

received for her original convictions of burglary and unlawful use of a debit card.

¶ 14 On direct review, the appellate court reversed defendant’s conviction for escape. 2017 IL 

App (3d) 140987, ¶¶ 16-19. Relying on this court’s holding in People v. Campa, 217 Ill. 2d 

243, 259 (2005), the appellate court determined that, in order for a convicted felon to commit 

the offense of escape, he or she must first be in custody. 2017 IL App (3d) 140987, ¶ 11. The 

appellate court drew a distinction between bail and custody and focused its analysis on whether 

defendant was in custody when she failed to report to the county jail after leaving the halfway 

house. The court stated that a “defendant released on bail or a recognizance bond is not 

considered to be in ‘custody’ per the Corrections Code.” Id.

¶ 15 The appellate court determined that defendant was not in “custody” for purposes of the 

escape statute at the time she violated the terms of her bond by failing to report to the county 

jail after leaving the halfway house. The court observed that, during the time defendant was 

out on bail, she was no longer under the authority of the sheriff or the Illinois Department of 

Corrections but rather was under the authority of the circuit court. The appellate court also 

observed that there was no requirement that personnel from either the county jail or the circuit 

court transport her to the county jail. Id. ¶¶ 13-14. The appellate court held: “Because the State 

could not establish that [defendant] was in custody, a requirement inherent in the offense of 

escape, it could not prove she was guilty of escape beyond a reasonable doubt.” Id. ¶ 16. The 

State appeals.

¶ 16 II. ANALYSIS

¶ 17 The issue presented in this case is whether the State is required to show that a convicted 

felon was in “custody” in order to prove that he or she violated the failure to report provision 

in the second clause of section 31-6(a) of the Criminal Code. 720 ILCS 5/31-6(a) (West 2014). 

Resolution of this issue involves statutory interpretation, which presents a question of law and 

is subject to de novo review. People v. Smith, 2016 IL 119659, ¶ 15. For the following reasons, 

we hold that the statute does not require the State to make such a showing.

¶ 18 The primary objective of statutory construction is to ascertain and give effect to the true 

intent of the legislature. All other canons and rules of statutory construction are subordinate to 

this cardinal principle. People v. Jamison, 229 Ill. 2d 184, 188 (2008); People ex rel. Director 

of Corrections v. Booth, 215 Ill. 2d 416, 423 (2005); People v. Botruff, 212 Ill. 2d 166, 174 

(2004); In re Detention of Lieberman, 201 Ill. 2d 300, 307 (2002).

¶ 19 A. Plain Language

¶ 20 The most reliable indicator of legislative intent is the language of the statute, given its plain 

and ordinary meaning. A court must view the statute as a whole, construing words and phrases 

in light of other relevant statutory provisions and not in isolation. Each word, clause, and 
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sentence of a statute must be given a reasonable meaning, if possible, and should not be 

rendered superfluous. The court may consider the reason for the law, the problems sought to 

be remedied, the purposes to be achieved, and the consequences of construing the statute one 

way or another. Also, a court presumes that the General Assembly did not intend absurdity, 

inconvenience, or injustice in enacting legislation. In re Appointment of Special Prosecutor, 

2019 IL 122949, ¶ 23; People v. Brown, 2013 IL 114196, ¶ 36; Botruff, 212 Ill. 2d at 174-75.

¶ 21 Section 31-6 of the Criminal Code provides in part as follows:

“§ 31-6. Escape; failure to report to a penal institution or to report for periodic 

imprisonment.

(a) A person convicted of a felony or charged with the commission of a 

felony, *** who intentionally escapes from any penal institution or from the 

custody of an employee of that institution commits a Class 2 felony; however, 

a person convicted of a felony *** who knowingly fails to report to a penal 

institution or to report for periodic imprisonment at any time or knowingly fails 

to return from furlough or from work and day release or who knowingly fails 

to abide by the terms of home confinement is guilty of a Class 3 felony.

(b) A person convicted of a misdemeanor or charged with the commission 

of a misdemeanor, *** who intentionally escapes from any penal institution or 

from the custody of an employee of that institution commits a Class A 

misdemeanor; however, a person convicted of a misdemeanor *** who 

knowingly fails to report to a penal institution or to report for periodic 

imprisonment at any time or knowingly fails to return from furlough or from 

work and day release or who knowingly fails to abide by the terms of home 

confinement is guilty of a Class B misdemeanor.

(b-1) A person in the custody of the Department of Human Services under 

the provisions of the Sexually Violent Persons Commitment Act under a 

detention order, commitment order, conditional release order, or other court 

order who intentionally escapes from any secure residential facility or from a 

Department employee or any of its agents commits a Class 2 felony.

(c) A person in the lawful custody of a peace officer for the alleged 

commission of a felony offense *** and who intentionally escapes from custody 

commits a Class 2 felony; however, a person in the lawful custody of a peace 

officer for the alleged commission of a misdemeanor offense *** who 

intentionally escapes from custody commits a Class A misdemeanor.

(c-5) A person in the lawful custody of a peace officer for an alleged 

violation of a term or condition of probation, conditional discharge, parole, 

aftercare release, or mandatory supervised release for a felony *** who 

intentionally escapes from custody is guilty of a Class 2 felony.

(c-6) A person in the lawful custody of a peace officer for an alleged 

violation of a term or condition of supervision, probation, or conditional 

discharge for a misdemeanor *** who intentionally escapes from custody is 

guilty of a Class A misdemeanor.

(d) A person who violates this Section while armed with a dangerous 

weapon commits a Class 1 felony.” 720 ILCS 5/31-6 (West 2014).
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¶ 22 “The legislature has the power to declare and define conduct constituting a crime and to 

determine the nature and extent of punishment for it.” People v. Simmons, 145 Ill. 2d 264, 269 

(1991); accord People v. Miller, 171 Ill. 2d 330, 333 (1996) (observing that “the legislature 

has wide discretion in defining crimes and prescribing penalties for those crimes”). Here, it is 

clear from the plain language of section 31-6 that the legislature has forged a single offense of 

escape that can be committed in a number of ways. The several subsections of section 31-6 

target distinct conduct and contain distinct elements. See, e.g., People v. Price, 221 Ill. 2d 182, 

189 (2006); People v. Graves, 207 Ill. 2d 478, 484-85 (2003).

¶ 23 As earlier noted, section 31-6(a) is divided into two independent clauses separated by a 

semicolon, with the second clause beginning with the word “however.” The first clause 

contains an escape from custody provision, and the second clause includes a knowing failure 

to report provision. The word “custody” appears only in the first provision, which involves 

escape from the custody of a penal institution or its employee. The word “custody” is absent 

from the failure to report provision. “When the legislature includes particular language in one 

section of a statute but omits it in another section of the same statute, courts presume that the 

legislature acted intentionally and purposely in the inclusion or exclusion [citations], and that 

the legislature intended different meanings and results [citations].” Chicago Teachers Union, 

Local No. 1 v. Board of Education of the City of Chicago, 2012 IL 112566, ¶ 24; see People v. 

Goossens, 2015 IL 118347, ¶ 12 (“It is well settled that when the legislature uses certain 

language in one instance of a statute and different language in another part, we assume different 

meanings were intended.”); People v. Hudson, 228 Ill. 2d 181, 193 (2008) (same). A court 

must not depart from a statute’s plain language by reading into it exceptions, limitations, or 

conditions that the legislature did not express. People v. Witherspoon, 2019 IL 123092, ¶ 24; 

People v. Casas, 2017 IL 120797, ¶ 18; Vincent v. Alden-Park Strathmoor, Inc., 241 Ill. 2d 

495, 506 (2011).

¶ 24 Because the plain and unambiguous language of the knowing failure to report provision of 

section 31-6(a) does not contain a “custody” element, we will not presume that the legislature 

intended to include such an element therein. We will not assign the same meaning to these two 

provisions of section 31-6(a) or engraft the custody element of the escape from custody 

provision onto the failure to report provision. See, e.g., Cassidy v. China Vitamins, LLC, 2018 

IL 122873, ¶¶ 21-22; People v. Smith, 2016 IL 119659, ¶¶ 29-30; In re Mary Ann P., 202 Ill. 

2d 393, 409 (2002).

¶ 25 In the case at bar, each of the two clauses of section 31-6(a), separated by a semicolon, 

targets distinct conduct and contains different elements. The first clause criminalizes the actual 

escape from the “custody” of a penal institution or its employee. The second clause includes a 

provision that criminalizes the knowing failure to report to a penal institution or for periodic 

imprisonment. Because the legislature used the word “custody” in the first clause of section 

31-6(a) but did not use the word “custody” in the knowing failure to report provision of the 

second clause, we conclude that the legislature did not intend to require the State to prove that 

a convicted felon was in custody before it could establish that he or she violated the knowing 

failure to report provision of section 31-6(a). 

¶ 26 The plain language of the knowing failure to report provision of the escape statute makes 

clear that the statute is violated when two elements are proved: (1) “[a] person is convicted of 

a felony,” and (2) the person “knowingly fails to report to a penal institution or to report for 
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periodic imprisonment.” 720 ILCS 5/31-6(a) (West 2014). We hold that the State is only 

required to prove these elements.1 Unless the language of a statute is ambiguous, a court 

should not resort to further aids of construction and must apply the statute as written. People 

v. Cherry, 2016 IL 118728, ¶ 13; LaSalle Bank National Ass’n v. Cypress Creek 1, LP, 242 Ill. 

2d 231, 237 (2011); Burrell v. Southern Truss, 176 Ill. 2d 171, 174 (1997).

¶ 27 B. Legislative History

¶ 28 However, defendant argues that “a close look at how the legislature has amended [section 

31-6(a)] over time shows that the intended target of either clause of [section 31-6(a)] are those 

individuals in custody.” We disagree. Although the plain language of section 31-6(a) renders 

discussion of its legislative history unnecessary, the legislative history actually supports our 

construction.

¶ 29 Section 31-6 originally provided that an escape occurred only when (a) a person convicted 

of or charged with a felony intentionally escaped from the custody of any penal institution or 

its employee, (b) a person convicted of or charged with a misdemeanor intentionally escaped 

from the custody of any penal institution or its employee, or (c) a person in the lawful custody 

of a peace officer who intentionally escaped from custody. Ill. Rev. Stat. 1961, ch. 38, ¶ 31-6. 

Each subsection prescribed a specific penalty. Id. The 1970 revised Committee Comments to 

section 31-6 explain as follows:

“Section 31-6 combines in logical sequence, with appropriate penalties which are 

substantially the same as now provided, the unrelated provisions found in [section 2807 

of chapter 23 on] escape and intent to escape from State Reformatory for Women, 

[section 121 of chapter 108 on] escape and attempt to escape from Illinois State 

Penitentiary, and [section 228b of chapter 38 on] escape and intent to escape from 

county jail. However, instead of relating the offense to the place of confinement only, 

section 31-6 uses the term ‘penal institution’ *** and then relates the penalty to the 

seriousness of the offense of which the escapee has been convicted or charged.” 720 

ILCS Ann. 5/31-6, Committee Comments-1970, at 419 (Smith-Hurd 2010).

Section 31-6 remained substantially unchanged for many years. See Ill. Rev. Stat. 1977, ch. 

38, ¶ 31-6; Ill. Rev. Stat. 1981, ch. 38, ¶ 31-6.

¶ 30 This court was required to construe section 31-6(a) as it then existed in People v. Simmons, 

88 Ill. 2d 270 (1981). Simmons was committed to the Illinois Department of Corrections for 

several felonies. He was transferred from prison to the Peoria Community Correctional Center. 

One day he was allowed six hours of “independent day release” to go shopping. A correctional 

center employee drove Simmons to a local shopping center and left him unaccompanied. 

Simmons was required to phone in periodically, and his brother was going to drive him back 

to the correctional center. Simmons never returned from his shopping trip, and he was 

eventually arrested in Davenport, Iowa. Id. at 271.

1

Actually, Illinois courts already apply the statute as written by way of jury instructions that do not 

include custody as an element of escape by failure to report. See Illinois Pattern Jury Instructions, 

Criminal, Nos. 22.25 (definition), 22.26 (issues) (approved Apr. 29, 2016); Illinois Pattern Jury 

Instructions, Criminal Nos. 22.25, 22.26 (4th ed. 2000) (same).
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¶ 31 Simmons was convicted of escape in violation of section 31-6 (Ill. Rev. Stat. 1977, ch. 38, 

¶ 31-6(a)) as described above. Before this court, Simmons argued that he did not violate section 

31-6 because he did not commit an “ ‘escape,’ ” which is prohibited, but rather only a “ ‘failure 

to return,’ ” which is not. He also argued that the correctional center was not a “ ‘penal 

institution’ ” within the meaning of the statute. Simmons, 88 Ill. 2d at 272. This court rejected 

both arguments.

¶ 32 We held that defendant escaped from the custody of the correctional center. We attributed 

a broad meaning to the word “escape” consistent with its legal and ordinary usage. Id. at 273. 

We reasoned:

“The defendant was committed to the Department of Corrections and sent to the 

Peoria Community Correctional Center. However much the limits of his confinement 

were temporarily enlarged, or the restrictions on his conduct temporarily lessened, he 

was still legally in the custody of the Center, and had a legal duty to submit to that 

custody. When he exceeded the lawful limits of his liberty, whether by stepping across 

the invisible boundary around the shopping center or by standing still while the 

boundary, with the passage of time, shrank to the physical confines of the Peoria 

Community Correctional Center itself, he escaped from the Center.” (Emphases 

added.) Id. at 273-74.

This court also held that the correctional center was a “penal institution” within the meaning 

of section 31-6(a). Id. at 274-75.

¶ 33 This court revisited the issue of escape from a penal institution in two consolidated cases. 

People v. Marble, 91 Ill. 2d 242 (1982). Defendant Marble was sentenced to imprisonment at 

the Cook County Jail with a provision for work release at the jail’s work release center. He 

was allowed to leave the jail on work release but had to return by 8 p.m. One day he failed to 

return. Defendant Cole was sentenced to work release at the Peoria Community Correctional 

Center. One day he violated the conditions of his work release and failed to return. Each 

defendant was subsequently apprehended and found guilty of escape in violation of section 31-

6(a) as it then existed. Id. at 245-46. Following the reasoning of Simmons, this court held that 

each defendant was sentenced to a penal institution and that “a failure to return from a 

temporary release may violate section 31-6(a).” Id. at 247.

¶ 34 Shortly after Simmons and Marble, the legislature amended section 31-6 to codify that the 

failure to return from furlough or from work and day release constitutes escape. People v. 

Campa, 217 Ill. 2d 243, 258 (2005); Ill. Rev. Stat. 1983, ch. 38, ¶ 31-6.

¶ 35 However, as amended in 1983, section 31-6(a) did not prohibit the knowing failure to 

report. Two years later, the legislature addressed this gap. Introduced as House Bill 332, Public 

Act 84-1083 (eff. Dec. 2, 1985) amended section 31-6(a) to add the failure to report provisions. 

Ill. Rev. Stat. 1985, ch. 38, ¶ 31-6. During the legislative debates, Representative Koehler 

observed that the statute permitted law enforcement officers to apprehend persons who failed 

to return from furlough. However, she explained: “But the law did not provide that that person 

who did not show up for the first time of periodic imprisonment, there was no mechanism 

whereby that individual could... could be charged with an offense for simply not showing up.” 

(Emphasis added.) 84th Ill. Gen. Assem., House Proceedings, Mar. 13, 1985, at 32 (statements 

of Representative Koehler). Representative Cullerton likewise observed that if someone who 

was sentenced to periodic imprisonment “showed up the first day but didn’t come back the 
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second day, it would be an escape.” 84th Ill. Gen. Assem., House Proceedings, Mar. 13, 1985, 

at 33 (statements of Representative Cullerton). He explained: “The purpose of the Bill was to 

provide that if someone was sentenced to periodic imprisonment and they didn’t show up for 

the first day that they were suppose[d] to appear that we deem that the offense of escape.” Id.

¶ 36 During the Senate’s consideration of House Bill 332, Senator Smith explained:

“House Bill 332 covers a gap. [It] amends the Criminal Code for failure to report for 

periodic imprisonment. Someone who has received a sentence of periodic 

imprisonment and if they fail to report to begin their sentence, they have committed a 

crime ***. Nothing in the law presently makes it a crime for not showing up for the 

first day.” (Emphases added.) 84th Ill. Gen. Assem., Senate Proceedings, June 5, 1985, 

at 17 (statements of Senator Smith).

¶ 37 The evolution of section 31-6 makes clear the intent of the legislature that subsection (a) 

provides for distinct situations. The original situation, escape from custody, is addressed in the 

first clause of subsection (a). Other situations, such as failure to return to custody from furlough 

or work and day release, are addressed in the second clause of subsection (a). 

¶ 38 Yet another situation, at issue here, is failure to report, which is also addressed in the second 

clause of subsection (a). The statements of Representative Koehler and Senator Smith indicate 

that the legislature addressed a distinct and specific gap in then-existing law. Further, the 

statements of Representative Cullerton and Senator Smith indicate the legislature’s discrete 

response: (1) if a person is sentenced to periodic imprisonment and (2) if that person fails to 

report to begin the sentence, then that person has committed a crime, denominated as escape. 

Custody is simply not an element in the distinct situation of failing to report, based on the plain 

language of section 31-6(a) and expressly confirmed in the legislative debates. Therefore, 

rather than supporting defendant’s argument, the legislative history of section 31-6 actually 

confirms the statute’s plain and ordinary meaning, that custody is irrelevant to the crime of 

failing to report.

¶ 39 Relying on language from this court in Campa, 217 Ill. 2d 243, the appellate court 

determined that, in order for a convicted felon to commit the offense of escape, he or she must 

first be in custody. 2017 IL App (3d) 140987, ¶ 11. In Campa, this court was required to 

construe the term “custody” within the meaning of the speedy-trial provision of the Code of 

Criminal Procedure of 1963 (725 ILCS 5/103-5(a) (West 2000)). Campa, 217 Ill. 2d at 254. 

This court concluded that “the legislature did not intend that the term ‘custody,’ as it is used in 

the speedy-trial statute, be equated to confinement. Rather, we believe that the legislature 

intended the term ‘custody’ to have a broad meaning and encompass lesser forms of restraint 

than confinement.” Id.

¶ 40 As support for this construction of the speedy-trial statute, this court in Campa discussed 

the Simmons and Marble decisions, as well as the subsequent amendments to section 31-6. We 

concluded as follows:

“Since escape is the unauthorized departure from custody (Simmons, 88 Ill. 2d at 

272-73), a defendant cannot escape unless he is first in custody. *** The escape statute 

shows that the legislature intended the crime of escape to evolve with the changing 

terms of detention used as part of the programs at our correctional institutions. A 

defendant must necessarily be in ‘custody’ while participating in these programs if he 
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is to be held accountable for ‘escape’ for failure to comply with the terms of the 

programs.” (Emphasis added.) Id. at 259.

¶ 41 Our analysis of the plain language of section 31-6, confirmed by its legislative history, 

clearly supports the second and third above-quoted sentences. “Custody” is an essential 

element in failing to return to custody from furlough or work and day release. However, our 

analysis clearly shows that escape by failure to report does not contain a custody element. 

Therefore, the emphasized sentence was an overstatement, and we hereby abrogate it to the 

extent it effectively nullifies the failure to report provision in section 31-6. Consequently, the 

appellate court’s reliance thereon was erroneous. 

¶ 42 Proceeding under the premise that escape by failure to report contains a custody element, 

the appellate court discussed case law construing “custody” as it relates to other statutes. 2017 

IL App (3d) 140987, ¶¶ 11-14. Particularly, relying on this court’s statement that “defendants 

released on bail or on their own recognizance are no longer in the custody of law enforcement” 

(People v. Hunt, 234 Ill. 2d 49, 63 (2009)), the appellate court concluded that defendant, who 

was released on bond, was not in custody and could not be charged with failure to report. 2017 

IL App (3d) 140987, ¶¶ 14-15. Likewise, we are invited to consider the meaning of “custody” 

in the context of statutes pertaining to bail (725 ILCS 5/110-1 et seq. (West 2014)), violation 

of bail bond (720 ILCS 5/32-10 (West 2014)), speedy trial (725 ILCS 5/103-5 (West 2014)), 

and presentence credit (730 ILCS 5/5-4.5-100(b) (West 2014)).

¶ 43 We decline the invitation. We have held that custody is not an element of the offense of 

escape by failure to report based on its clear and unambiguous language. “When the statutory 

language is clear and unambiguous, it must be given effect without resort to other tools of 

construction.” People v. Christopherson, 231 Ill. 2d 449, 454-55 (2008). Therefore, we need 

not and do not consider whether defendant was or was not “in custody” pursuant to other 

statutes.

¶ 44 C. “Constructive” Custody

¶ 45 In support of the appellate court’s decision, defendant argues that each of the situations 

covered in the second clause of section 31-6(a) “is a type of detention involving constructive 

custody. Thus, even though the exact word ‘custody’ is not contained in that subsection, under 

the statute’s plain language, it only applies when an individual fails to return or report from 

constructive custody.” We reject this argument. 

¶ 46 This court has construed the word “custody” within the meaning of other statutes. We have 

recognized that the word “custody” is very elastic and expansive and encompasses not only 

actual physical custody but also “constructive” custody, which denotes control by legal 

authority. People v. Beachem, 229 Ill. 2d 237, 245-46 (2008) (construing 730 ILCS 5/5-8-7(b) 

(West 2004) (presentence credit)); Campa, 217 Ill. 2d at 253-54 (construing 725 ILCS 5/103-

5(a) (West 2000) (speedy trial)). 

¶ 47 However expansive the concept of “custody,” the plain language of the failure to report 

provision of section 31-6(a), as confirmed by its legislative history, makes clear that custody 

is not an element of the offense. The legislature addressed a gap in section 31-6(a) that lacked 

a mechanism of enforcement. “Nothing in the law” made it a crime to fail to report for the first 

day to a penal institution or to periodic imprisonment. Rather than invoke “constructive 

custody,” the legislature proscribed conduct that heretofore was not illegal. The legislature 
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simply created another means of committing the offense of escape that does not include 

custody as an element. See 84th Ill. Gen. Assem., Senate Proceedings, June 5, 1985, at 17 

(statements of Senator Smith). This court may not “constructively” add a requirement to a 

statute that the legislature plainly chose not to include. See, e.g., Witherspoon, 2019 IL 123092, 

¶ 24; People v. Johnson, 2013 IL 114639, ¶ 12; People v. Lewis, 223 Ill. 2d 393, 402-03 (2006). 

“No rule of construction authorizes this court to declare that the legislature did not mean what 

the plain language of the statute imports, nor may we rewrite a statute to add provisions or 

limitations the legislature did not include.” Smith, 2016 IL 119659, ¶ 28; accord People v. 

Woodard, 175 Ill. 2d 435, 443 (1997).

¶ 48 Construing the plain and unambiguous language of the knowing failure to report provision 

of section 31-6(a) of the Criminal Code, we hold that custody is not an element of the offense. 

The knowing failure to report provision applies to defendant’s conduct because she failed to 

report to the Whiteside County Jail after leaving the halfway house as required by her bail 

bond. Therefore, the State established that defendant violated the escape statute when it proved 

that defendant, a convicted felon, knowingly failed to report to a penal institution as required 

by the conditions of her bail bond.

¶ 49 D. Prosecutorial Discretion: Failure to Report

or Violation of Bail Bond

¶ 50 Thus, it was ultimately within the discretion of the prosecutor to charge defendant with 

either violation of bail bond (720 ILCS 5/32-10 (West 2014)) or escape by failure to report (id.

§ 31-6(a)). At trial, the parties disagreed as to which crime was more appropriate for defendant 

to be charged with. 

¶ 51 A court may not order the state’s attorney to file a particular charge against a defendant. 

In re J.J., 142 Ill. 2d 1, 7 (1991); People ex rel. Daley v. Moran, 94 Ill. 2d 41, 46 (1983). 

Rather, the state’s attorney has the exclusive discretion to decide which of several charges shall 

be brought or whether to prosecute at all. People v. Jamison, 197 Ill. 2d 135, 161 (2001) 

(collecting cases); People v. Pankey, 94 Ill. 2d 12, 16 (1983). It is also quite established that 

“the State has the discretion to prosecute under either of two statutes where a defendant’s 

conduct violates both statutes and the statutes contain different elements.” People v. Buffalo 

Confectionery Co., 78 Ill. 2d 447, 458 (1980) (collecting cases); see Jamison, 197 Ill. 2d at 

162. 

¶ 52 We have held that a person commits the offense of escape by failure to report, as provided 

by section 31-6(a), when he or she is convicted of a felony and fails to report to a penal 

institution or for periodic confinement. 720 ILCS 5/31-6(a) (West 2014). In contrast, a person 

commits the offense of violation of bail bond when he or she has forfeited bail and wilfully 

failed to surrender within 30 days after the forfeiture. Id. § 32-10(a); People v. Ratliff, 65 Ill. 

2d 314, 318 (1976) (stating elements); People v. Costa, 2013 IL App (1st) 090833, ¶ 20 (same).

¶ 53 In the case at bar, given defendant’s probation record, it was entirely reasonable for the 

prosecutor to charge defendant with escape by failure to report to jail upon her departure from 

the halfway house, rather than wait for 30 days to charge defendant with violation of bail bond. 

Probation is a type of judgment after the defendant has been found guilty. People v. Allegri, 

109 Ill. 2d 309, 314 (1985). Probation simultaneously serves as a form of punishment and a 

method of rehabilitation. People v. Meyer, 176 Ill. 2d 372, 379 (1997). The purpose of 
- 12 -

probation is to benefit society by restoring a defendant to useful citizenship, rather than 

allowing a defendant to become a burden as a habitual offender. Id. “It is employed when the 

defendant’s continued presence in society would not be threatening and the defendant’s 

rehabilitation would be enhanced.” Allegri, 109 Ill. 2d at 314. A court’s subject-matter 

jurisdiction over a defendant on probation lasts only for the duration of the probation (People 

v. Carter, 165 Ill. App. 3d 169, 172 (1988)) and ends with the probation expiration date (People 

v. Wilson, 293 Ill. App. 3d 339, 31 (1997)). “Once the probation period ends,” “probation is 

terminated and there is nothing left to revoke or modify.” Id.

¶ 54 Here, through probation, the circuit court retained jurisdiction over defendant to provide 

her with the opportunity to receive treatment. See, e.g., People v. Neckopulos, 284 Ill. App. 3d 

660, 663-64 (1996). However, she repeatedly violated the terms of her probation. On April 19, 

2013, the circuit court revoked defendant’s original sentence of probation and resentenced her 

to a 30-month probation term. In September 2013 the court found that defendant violated the 

terms of her probation. However, it is noteworthy that the court did not revoke the April 2013 

probation order. Rather, the court released her for inpatient substance abuse treatment and 

subsequently for an extended residential care program at a halfway house. Thus, the April 2013 

probation order was in effect in June 2014 when defendant was charged with escape for failing 

to report to jail after leaving the halfway house and remained in effect until June 17, 2014, 

when that order was revoked and defendant was resentenced to imprisonment on her original 

offenses. Indeed, the court’s retention of jurisdiction over defendant shows that the court was 

striving to enhance her rehabilitation. We hold that it was within the discretion of the 

prosecutor to charge defendant with failure to report to jail upon her departure from the halfway 

house, rather than to wait for 30 days in order to charge her with violation of bond.

¶ 55 III. CONCLUSION

¶ 56 “Where, as here, a statute is clear and unambiguous, it must be enforced as written.” Booth, 

215 Ill. 2d at 426. If our construction of section 31-6(a) is not what the General Assembly 

intended, we invite that body to review this statutory scheme and revise it for purposes of 

clarity. See, e.g., People v. Pearse, 2017 IL 121072, ¶ 48.

¶ 57 For the foregoing reasons, we reverse the appellate court’s judgment and affirm the circuit 

court’s judgment finding defendant guilty of escape in violation of section 31-6(a) of the 

Criminal Code. We remand the matter to the circuit court for proceedings consistent with this 

opinion.

¶ 58 Appellate court judgment reversed. 

¶ 59 Circuit court judgment affirmed. 

¶ 60 Cause remanded.

¶ 61 JUSTICE BURKE, dissenting:

¶ 62 The majority states the issue in this case as “whether the State is required to show that a 

convicted felon was in ‘custody’ in order to prove that he or she violated” the portion of the 

escape statute that makes it a felony offense to knowingly fail to report to a penal institution. 

Supra ¶ 17; see 720 ILCS 5/31-6(a) (West 2014). This question could have been answered 

easily by reference to our long-standing case law. As this court has held, escape is the 
- 13 -

unauthorized departure from custody (People v. Simmons, 88 Ill. 2d 270, 272-73 (1981)), and 

therefore, “ ‘defendant cannot escape unless he is first in custody.’ ” People v. Beachem, 229 

Ill. 2d 237, 254 (2008) (quoting People v. Campa, 217 Ill. 2d 243, 259 (2005)). Nevertheless, 

the majority concludes, in direct contravention to our case law, that custody is not an element 

of this offense. 

¶ 63 I disagree with the majority and would hold, in accord with our case law, that a defendant 

must necessarily be in custody to be held accountable for escape. Accordingly, I respectfully 

dissent.

¶ 64 BACKGROUND

¶ 65 On October 31, 2012, the defendant, Elizabeth M. Clark, pled guilty to charges of burglary 

and unlawful use of a credit card in the circuit court of Whiteside County. She was sentenced 

to 30 months’ probation, with the conditions that she not possess or consume alcohol, that she 

submit to a weekly urine test, and that she complete an evaluation and obtain treatment for 

substance abuse. 

¶ 66 On January 15, 2013, the State filed a petition alleging that defendant failed to comply with 

the conditions of her probation. Defendant was taken into custody on January 18, 2013, and at 

a hearing on January 25, 2013, the court found defendant had violated her probation. 

Thereafter, on April 19, 2013, a sentencing hearing was held, and defendant was resentenced 

to a new term of 30 months’ probation with substantially the same conditions as her previous 

sentence.2

¶ 67 On July 29, 2013, the State filed a second petition alleging that defendant failed to comply 

with the conditions of her probation. At a September 6, 2013, hearing, the circuit court accepted 

a written admission prepared by defendant and found her in violation of probation. A 

presentencing report was ordered, and the matter was continued for resentencing at a later date. 

With defendant in custody, a hearing was held on January 3, 2014, at which time the circuit 

court agreed to release defendant on a $50,000 recognizance bond3 if and when inpatient 

treatment for substance abuse became available. The court also continued the matter for 

sentencing to February 7, 2014.

¶ 68 On January 9, 2014, while defendant was still awaiting resentencing for violation of 

probation, an order was entered pursuant to the court’s ruling on January 3, releasing defendant 

2Neither of defendant’s probation orders are contained in the record. The descriptions of the 

conditions imposed in the probation orders are taken from the presentence investigation report prepared 

for defendant’s sentencing in her escape trial.

3Section 110-2 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-2 (West 2016)) 

provides: 

“When from all the circumstances the court is of the opinion that the defendant will appear as 

required either before or after conviction and the defendant will not pose a danger to any person or 

the community and that the defendant will comply with all conditions of bond, *** the defendant 

may be released on his or her own recognizance. *** A failure to appear as required by such 

recognizance shall constitute an offense subject to the penalty provided in Section 32-10 of the 

Criminal Code of 2012 [(720 ILCS 5/32-10 (West 2016))] for violation of the bail bond, and any 

obligated sum fixed in the recognizance shall be forfeited and collected in accordance with 

subsection (g) of Section 110-7 of this Code.” 
- 14 -

on a $50,000 recognizance bond so that she could participate in inpatient substance abuse 

treatment at the White Oaks treatment center. Among other conditions, the bond included a 

requirement that, upon her release or discharge from the program at White Oaks, defendant 

“immediately return to the custody of the Whiteside County Jail, using the most direct route 

of travel and without delay or departure therefrom.” The bond also stated that defendant 

understood and “is on notice that if she fails to appear at the Whiteside County Jail or in court 

when required by the Court *** sentencing could proceed in her absence” and that “any 

violation of the conditions of this bond may result in [defendant] being subject to re-arrest and 

confinement.” The bond did not inform defendant that her failure to return to the jail could 

result in her arrest for the offense of escape.

¶ 69 On February 25, 2014, the circuit court modified defendant’s recognizance bond to permit 

her to reside at a halfway house known as Margaret Stutsman Lodge upon her release from 

White Oaks in order to receive “aftercare” treatment. The modified bond order continued to

require defendant to “immediately return” to the Whiteside County Jail upon her release or 

discharge from the halfway house.

¶ 70 Defendant successfully completed the inpatient treatment program at White Oaks and was 

discharged on March 5, 2014, at which time she began residing at Margaret Stutsman Lodge. 

Importantly, at this time, defendant still had not been resentenced following the court’s 

September 6, 2013, finding that she had violated probation. Rather, she remained released on 

a $50,000 recognizance bond while awaiting resentencing. And, because defendant was not 

yet sentenced to any term of incarceration, the Whiteside County Jail had no lawful authority 

to detain defendant or control her movements. Instead, the legal authority to control 

defendant’s movements and defendant’s legal obligation to return to the jail stemmed solely 

from the circuit court’s modified bond order. 

¶ 71 On June 5, 2014, defendant was discharged from Margaret Stutsman Lodge. Although the 

facility advised defendant that she was obligated by the terms of her bond to travel directly to 

the Whiteside County Jail upon her discharge, defendant did not do so. As a result, that same 

day the State filed an application to increase bond.4 After hearing testimony from Whiteside 

County Court Services, the court issued a warrant for defendant’s arrest. Defendant 

surrendered herself to the jail nine days later, on June 14, 2014, at which time the warrant was 

served, returned, and filed. 

¶ 72 On June 6, 2014, the day after the State filed its application to increase bond, the State 

charged defendant by information with committing “the offense of ESCAPE,” in violation of 

section 31-6(a) of the Criminal Code of 2012 (720 ILCS 5/31-6(a) (West 2014)). This 

provision provides, in relevant part, that a person commits the felony offense of escape if he 

or she “knowingly fails to report to a penal institution.” Id. The State alleged in the information 

that defendant “knowingly failed to report” to the Whiteside County Jail as required “in 

accordance with the terms and conditions of her Temporary Recognizance Bond.” 

4

An application to increase bond may be filed by the State pursuant to section 110-6 of the Code of 

Criminal Procedure of 1963 (725 ILCS 5/110-6 (West 2014)). Section 110-6(b) provides that a 

violation of “any special conditions of bail as ordered by the court shall constitute grounds for the court” 

to increase the amount of bail, alter the conditions of bail, or, in some instances, revoke bail. Id. § 110-

6(b).
- 15 -

¶ 73 A stipulated bench trial was held on September 23, 2014.5 Defense counsel argued to the 

court that defendant was not guilty of escape under section 31-6(a). Counsel observed that the 

portion of the statute that defines escape as “fail[ing] to report to a penal institution” applies 

only when the defendant has been “convicted of a felony.” Counsel maintained that the failure 

to report provision has to “relate” to this felony. That is, according to counsel, a defendant is 

only guilty of failing to report to a penal institution under the escape statute if he or she fails 

to report for service of the sentence imposed for the felony. By way of example, counsel 

explained that if a defendant, after being convicted of a felony and sentenced to a term of 

imprisonment, is “given a stayed mittimus and they don’t show up, that is an escape.” If “a 

person doesn’t comply with the condition of [a] bond, that is not an escape.” 

¶ 74 Counsel argued this had to be the correct understanding of the statute because otherwise 

the provision making it a felony offense to fail to report to a penal institution would apply to 

every defendant with a previous felony conviction. This would mean that every pretrial 

detainee with a felony conviction from a previous, unrelated offense, who is released on bond 

and who then violates the bond by failing to report, would be guilty of escape rather than a 

bond violation. Counsel contended this would be an absurd result and could not be what the 

legislature intended.

¶ 75 Turning to the facts of this case, defense counsel noted that defendant’s obligation to report 

to the jail did not stem from any sentence imposed. Rather, the obligation stemmed solely from 

the terms of the recognizance bond. Therefore, according to defense counsel, while defendant 

failed to comply with the terms of her recognizance bond, her failure to return to the Whiteside 

County Jail was not a failure to report for service of sentence and, thus, was not an escape.

¶ 76 In response to this argument, the court asked the prosecutor why defendant, who had not 

yet been sentenced and was released on a recognizance bond, was charged with escape, while 

in other cases where a defendant is admitted to bail while awaiting sentencing, the failure to 

appear is simply a violation of the bail bond. The court asked why these identical situations 

were being treated differently. The prosecutor responded that she believed the escape statute 

applies in all situations where a defendant has previously been convicted of a felony and a bail 

bond requires the defendant to report to jail. The prosecutor “couldn’t say why” it was 

sometimes charged as escape and sometimes not. The circuit court, after a brief recess, entered 

its ruling, finding defendant guilty of escape.

¶ 77 On appeal, the appellate court reversed defendant’s conviction. The appellate court began 

its analysis by noting that failing to report to a penal institution under section 31-6(a) is an 

escape and that this court has long held that “[t]o commit the offense of escape, a defendant 

must first be in custody.” 2017 IL App (3d) 140987, ¶ 11 (citing Campa, 217 Ill. 2d at 259). 

From this, the appellate court went on to explain that defendant could not have escaped from 

the Whiteside County Jail when she failed to report on June 5, 2014, because she was not in 

the custody of the jail at that time.

5

Prior to her trial for escape, on June 17, 2014, defendant’s probation was revoked, and she was 

sentenced to three years’ imprisonment and two years’ mandatory supervised release for the original 

burglary offense and a concurrent, one-year term of imprisonment and one year mandatory supervised 

release for unlawful use of a credit card. See 730 ILCS 5/5-6-4(e) (West 2014) (when probation is 

revoked, the circuit court “may impose any other sentence that was available *** at the time of initial 

sentencing”). 
- 16 -

¶ 78 The appellate court noted that “custody” has been defined broadly by this court to include 

both physical and constructive custody. Id. Constructive custody means “ ‘custody of a person 

(such as a parolee or probationer) whose freedom is controlled by legal authority but who is 

not under direct physical control.’ ” Beachem, 229 Ill. 2d at 245 (quoting Black’s Law 

Dictionary 412 (8th ed. 2004)). Thus, a defendant who fails to report to a prison to serve a 

sentence defies the legal authority granted the prison by the sentencing order and, therefore, 

escapes from the prison’s constructive custody. In this case, however, the appellate court 

recognized that, when defendant was released on bond from the Whiteside County Jail, the jail 

had no legal authority of any sort, whether in the form of a sentencing order, mittimus, or order 

of commitment, that would have permitted the jail to detain defendant or control her 

movements. 2017 IL App (3d) 140987, ¶ 13. For this reason, defendant could not, and did not, 

disobey or defy any legal authority that the jail possessed over her when she failed to report 

back. Instead, the legal authority defendant violated was the circuit court’s bond order—a 

violation the jail had no way of knowing occurred. Therefore, the appellate court concluded, 

defendant was not in the custody of the jail (either physical or constructive) and could not have 

escaped from that penal institution when she failed to report. Rather, she committed a bond 

violation. This appeal followed.

¶ 79 ANALYSIS

¶ 80 I

¶ 81 The question before this court is whether defendant’s knowing failure to report to the 

Whiteside County Jail as required by the terms of her recognizance bond constitutes an escape 

as defined under section 31-6(a) of the Criminal Code of 2012 (720 ILCS 5/31-6(a) (West 

2014)). Section 31-6(a) provides:

“(a) A person convicted of a felony or charged with the commission of a felony *** 

who intentionally escapes from any penal institution or from the custody of an 

employee of that institution commits a Class 2 felony; however, a person convicted of 

a felony *** who knowingly fails to report to a penal institution or to report for periodic 

imprisonment at any time or knowingly fails to return from furlough or from work and 

day release or who knowingly fails to abide by the terms of home confinement is guilty 

of a Class 3 felony.” Id.

¶ 82 The State contends the appellate court erred in reversing defendant’s conviction. According 

to the State, the plain language of the escape statute requires only that the State prove the 

defendant knowingly failed to report to a penal institution, regardless of why or how the 

obligation to report was imposed. In other words, in the State’s view, any and all failures to 

report to a penal institution are made felony offenses by the escape statute, regardless of 

whether the defendant is in the constructive custody of the penal institution. In so arguing, the 

State takes a dictionary approach to statutory interpretation. The word “report” means “to 

present oneself.” Webster’s Third New International Dictionary 1925 (1993). Defendant did

not present herself to the Whiteside County Jail on the day of her discharge from the Margaret 

Stutsman Lodge. According to the State, “that should be the end of the inquiry.”

¶ 83 Defendant, in response, argues for a contextual reading of the term “fails to report to a 

penal institution.” Defendant maintains that, when read in context, it is clear that the term “fails 

to report to a penal institution” is meant to apply only in those instances when a convicted 
- 17 -

defendant fails to report to the penal institution for service of his or her sentence. This might 

occur, for example, when a defendant’s sentence of incarceration is stayed by the circuit court 

for a short time so that the defendant may attend to a personal or family matter before beginning 

to serve the sentence imposed and the defendant is ordered to report to prison sometime later. 

If the defendant does not report, then he or she will have escaped from the lawful authority of 

the prison to detain and control the defendant granted by the sentencing order, i.e., the 

defendant will have escaped from the constructive custody of the prison. Defendant maintains 

that it is only in this situation that the failure to report to a penal institution under section 31-

6(a) constitutes an escape. I agree.

¶ 84 Determining the meaning of the term “fails to report to a penal institution” in section 31-

6(a) presents an issue of statutory interpretation. The fundamental rule of statutory 

interpretation is to ascertain and give effect to the legislature’s intent. People v. Ward, 215 Ill. 

2d 317, 324 (2005). The best indicator of legislative intent is the statutory language, given its 

plain and ordinary meaning. People v. Alexander, 204 Ill. 2d 472, 485 (2003). Where the 

language is clear and unambiguous, it is given effect as written without resort to other aids of 

statutory interpretation. Peterson v. Wallach, 198 Ill. 2d 439, 445 (2002).

¶ 85 Contrary to the State’s contentions, determining whether a statutory “term is unambiguous 

*** does not turn solely on dictionary definitions of its component words.” Yates v. United 

States, 574 U.S. ___, ___, 135 S. Ct. 1074, 1081 (2015). Instead, “[t]he plainness or ambiguity 

of statutory language is determined [not only] by reference to the language itself, [but also by] 

the specific context in which that language is used, and the broader context of the statute as a 

whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). In other words, the plain meaning 

rule requires that statutory terms always be considered in context. As the United States 

Supreme Court has stated, it is a “fundamental principle of statutory construction (and, indeed, 

of language itself) that the meaning of a word cannot be determined in isolation, but must be 

drawn from the context in which it is used. [Citations.]” Deal v. United States, 508 U.S. 129, 

132 (1993).

¶ 86 Corbett v. County of Lake, 2017 IL 121536, illustrates this point. In Corbett this court 

rejected a dictionary definition of the word “trail.” Based on the context of the statute at issue, 

we concluded that the word “trail” meant “primitive, rustic, or unimproved trail,” despite the 

fact that the words primitive, rustic, and unimproved did not appear in the statute. In so holding, 

we emphasized that “dissecting an individual word or phrase from a statutory provision and 

mechanically applying to it a dictionary definition is clearly not the best way of ascertaining 

legislative intent.” Id. ¶ 28; see also, e.g., Yates, 574 U.S. at ___, 135 S. Ct. at 1087 (holding, 

based on statutory context, that the term “tangible object” does not include fish); Gustafson v. 

Alloyd Co., 513 U.S. 561, 575 (1995) (based on statutory context, the term “any 

communication” means only public communication); United States v. Alvarez-Sanchez, 511 

U.S. 350, 358 (1994) (based on statutory context, the term “arrest or other detention” means 

only an arrest or detention for a violation of federal law). 

¶ 87 When the term “fails to report to a penal institution” is read in context of the escape statute, 

as it must be, it is clear that defendant’s interpretation of the term is correct. First, and foremost, 

failing to report to a penal institution is, by definition, a type of escape. For almost 40 years, 

since Simmons, 88 Ill. 2d 270, this court has held that the plain and ordinary meaning of the 
- 18 -

term “escape,” as employed in the escape statute, means an intentional and unauthorized 

absence of a committed person from either physical or constructive custody.

¶ 88 In Simmons, this court considered whether a defendant who fails to return from an 

unaccompanied day release from a penal institution may be prosecuted for the offense of 

escape under section 31-6(a). The defendant in Simmons was committed to the Department of 

Corrections after being sentenced on several felonies. Id. at 271. He was eventually transferred 

to the Peoria Community Correctional Center and, on one occasion, was allowed six hours of 

“independent day release” to go shopping. Id. The defendant never returned from his shopping 

trip and was thereafter charged and convicted of escape under section 31-6(a). Id. This court 

affirmed. Id. at 279.

¶ 89 At the time of the defendant’s offense in Simmons, paragraph (a) of the escape statute 

contained only the first portion of the current statute. That is, the statute provided only that 

“ ‘(a) A person convicted of a felony, or charged with the commission of a felony who 

intentionally escapes from any penal institution commits a Class 2 felony.’ ” Id. at 272 (quoting 

Ill. Rev. Stat. 1977, ch. 38, ¶ 31-6(a)). Thus, to determine whether the defendant was properly

found guilty, this court had to define the meaning of the term “escape.” This court held that 

“escape,” as used in section 31-6(a), should be given a “broad meaning.” Id. at 273. Borrowing 

a definition taken from the Unified Code of Corrections, this court held that “escape” means 

an “ ‘intentional and unauthorized absence’ of a committed person from the custody” of a penal 

institution. Id. at 272 (quoting Ill. Rev. Stat. 1977, ch. 38, ¶ 1003-1-2(i)). 

¶ 90 This court then went on to hold that the defendant had been committed to the Peoria 

Community Correctional Center, a penal institution, and that he escaped from the custody of 

that institution when he failed to return from his shopping trip. The court explained: 

“However much the limits of his confinement were temporarily enlarged, or the 

restrictions on his conduct temporarily lessened, he was still legally in the custody of 

the Center, and had a legal duty to submit to that custody. When he exceeded the lawful 

limits of his liberty, whether by stepping across the invisible boundary around the 

shopping center or by standing still while the boundary, with the passage of time, 

shrank to the physical confines of the Peoria Community Correctional Center itself, he 

escaped from the Center.” (Emphasis added.) Id. at 273-74.

The Simmons court recognized that the defendant, because he was still serving a sentence of 

incarceration, had a legal duty to submit to the authority of the Peoria Community Correctional 

Center, even if at times he was not physically within the confines of the center. This principle 

is known as constructive custody. Beachem, 229 Ill. 2d at 245. 

¶ 91 Simmons expressly held that a failure to return is an escape from custody and, in so doing, 

adopted a straightforward principle: When a defendant is committed to a penal institution by 

virtue of a sentencing order, that order gives the institution the legal right to physically detain 

and control the defendant until the conclusion of his sentence. If, while serving his sentence, 

the defendant is temporarily released from physical custody and then fails to return to the 

institution, he has escaped from the institution’s lawful authority, i.e., escaped from 

constructive custody. As the Simmons court stated, when a defendant in these circumstances 

fails to return, he is doing nothing less than “evading his punishment” and is, therefore, guilty 

of escape. Simmons, 88 Ill. 2d at 278.
- 19 -

¶ 92 Since Simmons, this court has repeatedly reaffirmed that, to be guilty of escape under 

section 31-6(a), a defendant must absent himself from physical or constructive custody. In 

People v. Marble, 91 Ill. 2d 242 (1982), this court repeated the definition of escape adopted in 

Simmons and held that a defendant serving a term of imprisonment who fails to return from 

work release and a defendant serving a term of imprisonment who fails to return from an 

unescorted furlough are both guilty of escaping from the custody of a penal institution and are, 

therefore, guilty of escape under section 31-6(a).6

¶ 93 In Campa, 217 Ill. 2d 243, this court again confirmed that escape is defined as an 

unauthorized absence from physical or constructive custody. In Campa, this court addressed 

whether a defendant in a county sheriff’s day reporting program was in custody for purposes 

of the speedy trial statute. In holding that he was, we relied heavily on the reasoning of 

Simmons and Marble. Id. at 255-59. We also examined the legislative history of the escape 

statute in detail—including the provision that defines escape as a failure to report to a penal 

institution—and expressly reaffirmed “that the failure to report for imprisonment constitutes

escape.” Id. at 259. We then stated the following:

“Since escape is the unauthorized departure from custody (Simmons, 88 Ill. 2d at 

272-73), a defendant cannot escape unless he is first in custody. Thus, reference to the 

escape provision of the Criminal Code, and the amendments thereto, supports our 

construction of the term ‘custody’ as used in the speedy-trial statute. The escape statute 

shows that the legislature intended the crime of escape to evolve with the changing 

terms of detention used as part of the programs at our correctional institutions. A 

defendant must necessarily be in ‘custody’ while participating in these programs if he 

is to be held accountable for ‘escape’ for failure to comply with the terms of the 

programs.” Id.

This understanding of the escape statute was confirmed yet again in Beachem where, once 

more, this court unanimously held that a “ ‘defendant cannot escape unless he is first in 

custody’ ” (Beachem, 229 Ill. 2d at 253 (quoting Campa, 217 Ill. 2d at 259)) and once more 

reaffirmed that escape from custody, whether physical or constructive, is the unifying principle 

that underlies all the forms of escape set forth in section 31-6(a).

¶ 94 For almost 40 years, this court has held that the plain and ordinary meaning of escape under 

section 31-6(a) means an intentional, unauthorized departure from physical or constructive 

custody. Failing to report to a penal institution is a type of escape. Thus, the State’s contention 

that this provision has nothing to do with constructive custody cannot be reconciled with this 

court’s long-standing holdings regarding the plain meaning of the term “escape” as used in the 

escape statute. This alone is reason to reject the State’s interpretation of section 31-6(a).

¶ 95 And there are additional concerns with the State’s statutory analysis—it is also at odds with 

the principle of noscitur a sociis (a word is known by the company it keeps). When considering 

statutory context, we rely on this principle to “avoid ascribing to one word a meaning so broad 

that it is inconsistent with its accompanying words, thus giving unintended breadth” to 

legislative enactments. (Internal quotation marks omitted.) Gustafson, 513 U.S. at 575; see also 

Misch v. Russell, 136 Ill. 22, 25 (1891) (“general and specific words which are capable of an 

6

In 1983, shortly after Simmons and Marble were decided, the General Assembly added language 

to the escape statute that codified the decisions in those cases.
- 20 -

analogous meaning being associated together, take color from each other, so that the general 

words are restricted to a sense analogous to the less general”).

¶ 96 Here, the second portion of section 36-1(a) (the portion after the semicolon) lists several 

other situations, in addition to failing to report to a penal institution, in which the failure to 

report or return is deemed an escape. These are sentences of periodic imprisonment (730 ILCS 

5/5-7-1 (West 2014)), furloughs (id. § 3-11-1), work and day releases (id. §§ 13-1 to 13-6), 

and terms of home confinement (id. § 5-6-3(b)(10)). All these statutory provisions address 

instances where a defendant’s failure to return or report would constitute a violation of a 

sentence and, thus, a breach of constructive custody. If, for example, a defendant is sentenced 

to a term of periodic imprisonment but then fails to report for the first required day of custody, 

then she has escaped from the lawful authority of the penal institution to control her movements 

granted by the circuit court’s sentencing order. In other words, just as in Simmons and Marble, 

she has escaped from the constructive custody of the penal institution. Simmons, 88 Ill. 2d 270;

Marble, 91 Ill. 2d 242. The same is also true of furloughs, work and day release, and home 

confinement. 

¶ 97 Given the context in which it appears, it is apparent the legislature intended the term “fails 

to report to a penal institution” to apply only when a defendant has been sentenced on a felony 

conviction and then fails to report to the penal institution for service of that sentence. In this 

situation, as in the other situations listed after the semicolon in the statute, the defendant would 

be in breach of constructive custody and, therefore, would be guilty of escape. To hold 

otherwise would require us to ignore the principle of noscitur a sociis and disregard the context 

in which the term “fails to report to a penal institution” appears. This would give an 

“unintended breadth” (Gustafson, 513 U.S. at 575) to the term that the legislature could not 

reasonably have intended. 

¶ 98 Legislative history further confirms that the term “fails to report to a penal institution” 

applies only when a defendant fails to report for service of his sentence. In 1985, in Public Act 

84-1083 (eff. Dec. 2, 1985), the General Assembly amended section 31-6(a) of the escape 

statute to add both the failure to report to a penal institution and the failure to report for periodic 

imprisonment provisions. Public Act 84-1083 began its life as House Bill 332. This bill added 

the language making it an offense to fail to report for periodic imprisonment. Representative 

Cullerton explained:

“Right. I just thought I’d try to clarify if there’s any confusion with regard to the 

Amendment. The purpose of the Bill was to provide that if someone was sentenced to 

periodic imprisonment and they didn’t show up for the first day that they were 

suppose[d] to appear that we deem that the offense of escape.” (Emphasis added.) 84th 

Ill. Gen. Assem., House Proceedings, Mar. 13, 1985, at 33 (statements of 

Representative Cullerton). 

¶ 99 Senator Smith offered similar statements:

“House Bill 332 covers a gap. [It] amends the Criminal Code for failure to report for 

periodic imprisonment. Someone who has received a sentence of periodic 

imprisonment and if they fail to report to begin their sentence, they have committed a 

crime ***. Nothing in the law presently makes it a crime for not showing up for the 

first day.” (Emphases added.) 84th Ill. Gen. Assem., Senate Proceedings, June 5, 1985, 

at 17 (statements of Senator Smith).
- 21 -

¶ 100 Subsequently, House Bill 332 was substituted with another, identical bill, Senate Bill 844. 

That bill was adopted by both houses and sent to then-Governor Thompson, who exercised his 

amendatory veto. In his veto message, Governor Thompson expressed full agreement with 

Senate Bill 844 but recommended that the legislature add to the bill the language “fails to 

report to a penal institution.” Journal of the Senate of the 84th Ill. Gen. Assem., at 7162; see I 

Final Legislative Synopsis and Digest of the 84th Ill. Gen. Assem. (No. 20), at 537. This 

recommendation was approved by both houses. Senator Dudycz explained the Governor’s 

recommendation when it was presented to the Senate:

“Thank you Mr. President. The Governor’s recommendation adds into the escape 

offense the failure to report to jail after being sentenced. I ask for a favorable vote on 

the motion to accept the Governor’s recommendations for change.” (Emphasis added.) 

84th Ill. Gen. Assem., Senate Proceedings, Oct. 16, 1985, at 78 (statements of Senator 

Dudycz). 

¶ 101 We presume that the legislature amends a statute with knowledge of judicial decisions 

interpreting the statute. Hubble v. Bi-State Development Agency of the Illinois-Missouri 

Metropolitan District, 238 Ill. 2d 262, 273 (2010). Moreover, once “ ‘this court has construed 

a statute, that construction becomes, in effect, a part of the statute’ ” until the General 

Assembly changes it. Village of Vernon Hills v. Heelan, 2015 IL 118170, ¶ 19 (quoting 

Mitchell v. Mahin, 51 Ill. 2d 452, 456 (1972)). Clearly, at the time both of the failure to report 

provisions were added to section 31-6(a) of the escape statute, it was understood by the General 

Assembly that escape means an intentional and unauthorized absence of a committed person 

from either physical or constructive custody. And clearly, it was also understood by the 

General Assembly that the failure to report provisions were forms of escape, based on the 

failure of the defendant to comply with the authority granted a penal institution by a sentencing 

order. Accordingly, the General Assembly knew, as explained in Simmons and Marble, that 

the failure to report, like the failure to return, is a breach of constructive custody. Indeed, 

Senator Dudycz’s comments eliminate any doubt on this point. 

¶ 102 And there is additional support for defendant’s construction of the term “fails to report to 

a penal institution.” This term only applies to those defendants who have been “convicted” of 

a felony. 720 ILCS 5/31-6(a) (West 2014). The word “convicted” does not have a fixed 

meaning. Depending on the context, it may refer to an adjudication of guilt or an adjudication 

of guilt and imposition of sentence. People v. Woods, 193 Ill. 2d 483, 487-88 (2000). The 

Criminal Code of 2012 itself defines the term “conviction” as “a judgment of conviction or 

sentence entered upon a plea of guilty or upon a verdict or finding of guilty of an offense, 

rendered by a legally constituted jury or by a court of competent jurisdiction authorized to try 

the case without a jury.” (Emphasis added.) 720 ILCS 5/2-5 (West 2014). The word 

“judgment,” in turn, is defined as “an adjudication by the court that the defendant is guilty or 

not guilty and if the adjudication is that the defendant is guilty it includes the sentence 

pronounced by the court.” (Emphasis added.) 725 ILCS 5/102-14 (West 2014).

¶ 103 Nothing in the context of the escape statute suggests that the legislature intended to depart 

from the statutory definitions of the words “convicted” and “judgment,” and nothing suggests 

that the word “convicted” as used in the escape statute means only an adjudication of guilt. 

Thus, the term “fails to report to a penal institution” applies only to those defendants who have 

been “convicted” of a felony, i.e., adjudicated guilty and sentenced to a term of incarceration. 
- 22 -

Further underscoring this point is the fact that the first portion of section 31-6(a) (which 

addresses the physical escape from the four walls of a penal institution) states that it applies to 

those persons who have been “convicted of a felony or charged with the commission of a 

felony.” 720 ILCS 5/31-6(a) (West 2014). The statutory meaning is apparent. The first portion 

of section 31-6(a) applies both to (1) those persons who are in a penal institution because they 

have been charged with a felony offense and are awaiting trial and to (2) those who are in a 

penal institution to serve a sentence. However, the second portion of section 31-6(a) applies 

only to those persons who have been sentenced to a term of incarceration. At the time she failed 

to return to the Whiteside County Jail, defendant in this case had not been sentenced to a term 

of incarceration, and the jail had no legal authority to detain her or control her movements. 

Accordingly, she was not “convicted” within the meaning of the escape statute and could not 

be guilty of failing to report. 

¶ 104 The State’s interpretation of the term “fails to report to a penal institution” also omits any 

consideration of section 110-2 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-2 

(West 2014)). This provision governs recognizance bonds, the type of bond under which 

defendant was released, and provides explicit instructions on how to proceed if the defendant 

fails to appear as required by the bond. Section 110-2 states:

“A failure to appear as required by such recognizance shall constitute an offense subject 

to the penalty provided in Section 32-10 of the Criminal Code of 2012 [(720 ILCS 

5/32-10 (West 2014))] for violation of the bail bond, and any obligated sum fixed in 

the recognizance shall be forfeited and collected in accordance with subsection (g) of 

Section 110-7 of this Code [(725 ILCS 5/110-7(g) (West 2014))].” Id.

¶ 105 Subsection (g) of section 110-7 of the Code of Criminal Procedure of 1963 states that an 

order declaring the bail to be forfeited shall be entered by the court if the defendant does not 

comply with the conditions of the bail bond. Importantly, however, no monetary judgment may 

be entered for the State until 30 days have elapsed. Id. § 110-7(g). Similarly, section 32-10 of 

the Criminal Code of 2012, which is the statute that defines the criminal offense of “violation 

of bail bond,” states that any person who has been admitted to bail and has incurred a forfeiture 

of the bail commits the offense of violation of bail bond but only if the person “fails to surrender 

himself or herself within 30 days following the date of the forfeiture.” 720 ILCS 5/32-10(a) 

(West 2014).

¶ 106 Through its incorporation of section 32-10, section 110-2 provides a defendant who is 

released on a recognizance bond with a 30-day grace period after the return date set forth in 

the bond before the failure to return becomes a criminal offense. See People v. Costa, 2013 IL 

App (1st) 090833. Stated simply, a defendant has not committed a crime if she appears within 

30 days of the return date. Defendant in this case was released on a recognizance bond and 

appeared nine days after the return date on the bond. According to section 110-2, she was 

entitled to a 30-day grace period and, thus, under the plain terms of that provision, was not 

guilty of any criminal offense.

¶ 107 In light of the grace period provided in section 110-2, it is apparent that failing to limit the 

failure to report provision to situations involving constructive custody, and applying it in all 

situations where a defendant is released on a recognizance bond, would create a statutory 

conflict: On the one hand, the legislature has stated in section 110-2 that a defendant who fails 

to appear on the due date of a recognizance bond has a 30-day grace period and that returning 
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9 days past the due date is not a criminal offense. Yet, on the other hand, according to the State, 

the legislature has also stated in the escape statute that a defendant who fails to appear on her 

due date does not have a 30-day grace period and that returning even 1 day past the due date 

is an immediate, felony offense.

¶ 108 This is not a minor problem. To avoid due process concerns, criminal statutes must give a 

person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited 

so that he or she may act accordingly. People v. Howard, 2017 IL 120443, ¶ 25. The 

construction of the statute proposed by the State raises serious due process concerns because, 

under that construction, it is unclear whether defendant’s conduct is actually criminal. See, 

e.g., State v. McKown, 461 N.W.2d 720 (Minn. Ct. App. 1990).7

¶ 109 Furthermore, as defendant’s trial counsel observed in the circuit court, the State’s 

construction of the term “fails to report to a penal institution” leads to overly broad results. In 

the State’s view, the term applies to every defendant who violates his bond by failing to report 

to a penal institution and who has a previous felony conviction. This means, according to the 

State, that every pretrial detainee with a felony conviction from a previous, unrelated offense 

who is released on bond and who then violates the bond by failing to report back to jail, would 

be guilty of escape rather than a bond violation. This would effectively nullify the violation of 

bond statute for pretrial detainees with a prior felony conviction. This cannot reasonably have 

been what the legislature intended.

¶ 110 We have an obligation, where reasonably possible, to construe statutes in such a way so as 

to affirm their constitutionality and avoid absurd results. Howard, 2017 IL 120443, ¶ 24. 

Limiting the term “fails to report to a penal institution” to situations involving constructive 

custody removes any concern regarding constitutional infirmity or absurd results and explains 

the relationship between the escape statute and section 110-2. The escape statute does not 

contain a 30-day grace period but, instead, treats failing to report to a penal institution as an 

immediate, felony offense. It does this because the statute applies only to those defendants who 

escape from the constructive custody of a penal institution after being committed to the 

institution following sentencing. In short, failing to report for service of sentence is a more 

serious offense than simply failing to report as required by a recognizance bond and, logically, 

is treated more seriously.

¶ 111 Finally, the State’s contention that the term “fails to report to a penal institution” should be 

given the broadest construction disregards the rule of lenity. This rule provides that, when “a 

reasonable doubt persists about a statute’s intended scope even after resort to ‘the language 

and structure, legislative history, and motivating policies’ of the statute” (emphasis in original) 

(Moskal v. United States, 498 U.S. 103, 108 (1990) (quoting Bifulco v. United States, 447 U.S. 

381, 387 (1980))), we must resolve that doubt in favor of the defendant rather than imputing 

to the General Assembly an “ ‘undeclared will’ ” to criminalize conduct (United States v. 

Santos, 553 U.S. 507, 515 (2008) (quoting Bell v. United States, 349 U.S. 81, 83 (1955))). See 

People v. Davis, 199 Ill. 2d 130, 140 (2002) (“where a criminal statute is capable of two 

7

Defendant was never informed by any authority that her failure to return to the Whiteside County 

Jail could be prosecuted as an escape. In a letter written to the circuit court before her trial for escape, 

defendant stated that she knew she was violating her bond when she did not return to the jail and 

apologized for her actions. However, she stated that she “didn’t realize I was committing another 

offense, especially escape.”
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constructions, courts must adopt the one that operates in favor of the accused”). The rule of 

lenity ensures that criminal statutes will provide fair warning of what constitutes criminal 

conduct, minimizes the risk of arbitrary enforcement, and strikes the appropriate balance 

between the legislature and the judicial branch in defining criminal liability. Yates, 574 U.S. at 

___, 135 S. Ct. at 1088.

¶ 112 At a minimum, the points I have outlined above raise an objectively reasonable question 

as to whether a narrow or broad construction should be given to the term “fails to report to a 

penal institution” in the escape statute. Accordingly, the rule of lenity compels the conclusion 

that the term should be construed narrowly in favor of defendant. 

¶ 113 In my view, the legislature’s intent is clear. The term “fails to report to a penal institution” 

in the escape statute applies only when a convicted person escapes from constructive custody. 

This means the provision applies only when the person fails to report to the penal institution 

for service of sentence and not otherwise. In this case, defendant was ordered to return to the 

Whiteside County Jail by the terms of her recognizance bond, not a sentencing order. 

Defendant did not escape from the constructive custody of the jail. The judgment of the 

appellate court should, therefore, be affirmed.

¶ 114 II

¶ 115 The majority, however, reverses the judgment of the appellate court. In so holding, the 

majority explains that

“section 31-6(a) is divided into two independent clauses separated by a semicolon, with 

the second clause beginning with the word ‘however.’ The first clause contains an 

escape from custody provision, and the second clause includes a knowing failure to 

report provision. The word ‘custody’ appears only in the first provision, which involves 

escape from the custody of a penal institution or its employee. The word ‘custody’ is 

absent from the failure to report provision.” Supra ¶ 23.

¶ 116 The majority then observes that, “ ‘[w]hen the legislature includes particular language in 

one section of a statute but omits it in another section of the same statute, courts presume that 

the legislature acted intentionally and purposely in the inclusion or exclusion [citations] and 

that the legislature intended different meanings and results [citations].’ ” Supra ¶ 23 (quoting 

Chicago Teachers Union, Local No. 1 v. Board of Education of the City of Chicago, 2012 IL 

112566, ¶ 24). From this, the majority concludes that it cannot “presume that the legislature 

intended to include” an element of custody in the definitions of escape that appear after the 

semicolon in section 31-6(a). Supra ¶ 24. The majority states that it “will not assign the same 

meaning to these two provisions of section 31-6(a) or engraft the custody element of the escape 

from custody provision onto the failure to report provision.” Supra ¶ 24. In short, according to 

the majority, custody plays no role in any of the versions of escape that appear in the second 

portion of section 31-6(a) and, thus, is not an element of the offense at issue here. I disagree.

¶ 117 The concept of custody, specifically constructive custody, is inherent in each of the 

offenses listed after the semicolon in section 31-6(a). Apart from failing to report to a penal 

institution, the offenses listed are failing to report for a sentence of periodic imprisonment (730 

ILCS 5/5-7-1 (West 2014)), failing to return from a furlough (id. § 3-11-1), failing to return 

from work or day release (id. §§ 13-1 to 13-6), and failing to abide by the terms of home 

confinement (id. § 5-6-3(b)(10)). In each of these situations, a sentence has been imposed on 
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the defendant. In each of these situations, the defendant’s failure to return or report would 

constitute a violation of a sentence and, thus, by definition would amount to a breach of 

constructive custody. This was the point that was made in Simmons. If a defendant is sentenced 

to a term of periodic imprisonment, this means she has “a legal duty to submit to that custody.” 

Simmons, 88 Ill. 2d at 273. If she fails to report for the first required day of custody, then she 

has escaped from the lawful authority of the penal institution to control her movements granted 

by the circuit court’s sentencing order. That is, she has escaped from the constructive custody 

of the penal institution. Simmons, 88 Ill. 2d 270; Marble, 91 Ill. 2d 242. The same analysis also 

applies to furloughs, work and day release, and home confinement. Thus to state, as the 

majority does, that custody is not a part of any of the offenses listed in the second part of 

section 31-6(a) is plainly incorrect. 

¶ 118 To be sure, the General Assembly has divided section 31-6(a) into two sections, separated 

by a semicolon. But this is not because the offenses listed after the semicolon are completely 

unrelated offenses that have nothing to do with long-standing concepts of custody or escape. 

Rather, these offenses are set off by a semicolon because they have been given a lesser penalty. 

Breaches of constructive custody, such as failing to return from a furlough or failing to report 

for periodic imprisonment, are inherently less dangerous acts than breaking out of the physical 

confines of a prison. It is therefore entirely appropriate and logical that the General Assembly 

would separate the two types of escape and penalize breaches of constructive custody as Class 

3 felonies while penalizing breaches of physical custody as Class 2 felonies. See, e.g., 83d Ill. 

Gen. Assem., House Proceedings, June 21, 1983, at 201 (statements of Representative 

Cullerton) (noting that it “makes sense” to provide a lesser penalty for someone who fails to 

return from work release than for someone who escapes from prison).

¶ 119 The majority fundamentally misconstrues the meaning of constructive custody and, 

therefore, incorrectly disregards the context of section 31-6(a). The term “fails to report to a 

penal institution” appears on a list that contains nothing but offenses that involve escape from 

constructive custody. There is no reason why the offense of failing to report to a penal 

institution should be interpreted any differently.

¶ 120 Other aspects of the majority’s reasoning are equally unpersuasive. The majority agrees 

that, in section 31-6, “the legislature has forged a single offense of escape.” Supra ¶ 22. Nor is 

there any dispute that this court has held, for close to 40 years, that the plain and ordinary 

meaning of the word “escape” means an intentional, unauthorized departure from either 

physical or constructive custody. Yet, with respect to the offenses of failing to report to a penal 

institution and failing to report for periodic imprisonment, the majority concludes that the 

“offense of escape *** does not include custody as an element.” Supra ¶ 47. In other words, 

according to the majority, with respect to these provisions, “escape” does not mean “escape.” 

¶ 121 Recognizing this problem, the majority takes the exceptional step of “abrogat[ing]” a 

sentence from Campa that defines escape as the unauthorized departure from custody. Supra

¶ 41. This is problematic for several reasons. First, the definition set forth in Campa was taken

from our earlier decision in Simmons, and the analysis and holding of Simmons rest on that 

understanding of escape. Simmons, 88 Ill. 2d at 272-73. Thus, the majority is not simply 

“abrogating” a sentence in a single opinion of this court, it is overruling long-standing 

precedent. The majority makes no mention of stare decisis and makes no attempt to justify its 

actions under that doctrine. Further, at the same time the majority abrogates Campa and 
- 26 -

overrules Simmons, it leaves in place Marble and Beachem, two cases that also hold that escape 

is the unauthorized departure from custody. Thus, the majority’s abrogation of Campa, instead 

of providing clarity, leaves the law of escape in a state of considerable confusion.

¶ 122 The majority takes extraordinary measures to reach the conclusion that the offense of 

failing to report to a penal institution does not contain a custody element. The majority 

unnecessarily overturns long-standing case law when, properly understood, our case law and 

section 31-6(a) are completely consistent. 

¶ 123 The majority also points to legislative history to support its conclusion that custody is not 

a part of the offense of failing to report to a penal institution. Here, too, the majority errs. The 

majority quotes the following statement from Senator Smith:

“House Bill 332 covers a gap. [It] amends the Criminal Code for failure to report for 

periodic imprisonment. Someone who has received a sentence of periodic 

imprisonment and if they fail to report to begin their sentence, they have committed a 

crime ***. Nothing in the law presently makes it a crime for not showing up for the 

first day.” 84th Ill. Gen. Assem., Senate Proceedings, June 5, 1985, at 17 (statements 

of Senator Smith). 

See supra ¶ 36. According to the majority, this statement shows the intent of the legislature to 

establish an offense called “escape” that has nothing to do with custody. Supra ¶¶ 36-43. 

However, the opposite is true. As Senator Smith stated, periodic imprisonment is a sentence. 

A person who fails to report for periodic imprisonment has, therefore, violated the terms of his 

or her sentence and evaded the lawful authority of the penal institution. This is the definition 

of a breach of constructive custody. 

¶ 124 Further, the legislative history quoted by the majority addresses only the offense of failing 

to report for periodic imprisonment, not failing to report to a penal institution, the offense at 

issue here. And that leads to a troubling aspect of the majority opinion. There is one statement 

in the legislative record that relates directly to the offense of failing to report to a penal 

institution. After then-Governor Thompson proposed adding the language setting out the 

offense, Senator Dudycz stated the following:

“Thank you Mr. President. The Governor’s recommendation adds into the escape 

offense the failure to report to jail after being sentenced. I ask for a favorable vote on 

the motion to accept the Governor’s recommendations for change.” (Emphasis added.) 

84th Ill. Gen. Assem., Senate Proceedings, Oct. 16, 1985, at 78 (statements of Senator 

Dudycz). 

This statement should eliminate any doubt that the term “fails to report to a penal institution” 

means “fails to report for service of sentence.” Yet the majority chooses not to mention this 

quote. There is no justification for this.

¶ 125 For the foregoing reasons, I respectfully dissent.

¶ 126 CHIEF JUSTICE KARMEIER and JUSTICE THEIS join in this dissent.