2019 IL 122891

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 122891)

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

ELIZABETH M. CLARK, Appellee.

Opinion filed June 6, 2019.

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, 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 
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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 
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transportation directly to the White Oaks treatment center for inpatient substance 

abuse treatment.

¶ 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 three years’ imprisonment with 281 days’

credit and two 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.
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¶ 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 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 
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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).
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¶ 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 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.
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(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).

¶ 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).
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¶ 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 
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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 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:

 

1Actually, 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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“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.

¶ 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 
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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 
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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 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: if (1) 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.
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¶ 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 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 
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(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” 
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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 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 
- 16 -

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 

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 
- 17 -

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.
- 18 -

¶ 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 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

 

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.
- 19 -

¶ 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 bond3if 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 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 

 

3

Section 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.” 
- 20 -

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.” 

 

4An 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).
- 21 -

¶ 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 

 

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”). 
- 22 -

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.

¶ 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, 
- 23 -

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 defendant fails to report to the penal institution 
- 24 -

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 
- 25 -

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 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, 
- 26 -

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.
- 27 -

¶ 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 

 

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.
- 28 -

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 

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. 
- 29 -

¶ 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).
- 30 -

¶ 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 
- 31 -

“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. 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 
- 32 -

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 9 days past the due 
- 33 -

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 

 

7Defendant 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.”
- 34 -

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 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, 
- 35 -

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 

12-6), and failing to abide by the terms of home confinement (id. § 5-6-3(b)(10)). 
- 36 -

In each of these situations, a sentence has been imposed on 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., 83rd 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.
- 37 -

¶ 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 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 
- 38 -

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.