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Illinois: Prisoner Who Commits Disciplinary Infraction May Also Be Prosecuted In Court

In November 2011, the Illinois Court of Appeal held that a single unlawful act by a state prisoner may give rise to both disciplinary and criminal charges.

In August 2000, Anthony Gay, a prisoner at Pontiac Correctional Center, threw a urine-like liquid substance at a guard, striking him in the face with it. Gay was charged with violating offense No. 102, an assault under prison regulations. In July 2003, the State charged Gay with aggravated battery, a criminal offense, for the same misconduct. Two years later, after a jury trial, a jury found Gay guilty as charged. In October 2005, he was sentenced to an extended term of six years' imprisonment.

On appeal, Gay argued that, in violation of due process, the citation he was issued by the Department of Corrections (DOC) did not advise him that the misconduct for which he was disciplined under title 20, section 504, of the Illinois Administrative Code also exposed him to possible criminal prosecution.

Gay contended that, in order to charge him with a criminal act, the DOC was required to cite him for violating offense No. 501, "VIOLATING STATE OR FEDERAL LAWS," rather than merely violating offense No. 102, "ASSAULTING ANY PERSON." In Gay's view, by enacting offense No. 501, "the State undertook to provide any prisoner with notice that his action subjects him to potential future prosecution."

The Court of Appeal found that Gay's contention misconstrued the role of offense No. 501 in the disciplinary scheme and that, consequently, his argument failed on the merits. Characterizing Gay's position as "absurd," the Court held that "nothing in the statutory or administrative laws prevents an inmate from facing DOC disciplinary charges and State criminal charges for a single unlawful act." See: People v. Gay, 2011 IL App (4th) 100009.

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Related legal case

People v. Gay