Articles Posted in Sentencing

3scbuulajgg-matthew-hamilton-300x200Knowledge of sentencing guidelines is not only important for those defendants who have been found guilty of a crime in Chicago, but it is also important for those who intend to enter a guilty plea or have a reasonable expectation of being found guilty. The guidelines act like a framework within which the court is expected to operate. They offer guidance to the judge as to the minimum and maximum sentences anticipated depending on the facts of the case. The range can be quite significant, and many offenses lie in the middle. It is for this reason that a sliding scale of punishment has been adopted.

Understanding the Difference Between Potential and Actual Punishments

Unlike some jurisdictions where sentencing is a technical and artificial exercise of matching index points to a punishment scale, Chicago, like the rest of the USA, demands a much more sophisticated approach. This includes weighing up the relative aspects of the aggravating and mitigating features. Two people who have been involved in an identical crime might get significantly different sentences under the guidelines. The public may perceive this to be unfair, but in reality, it is a reflection of the true nature of crime in which the differences are often more important than the similarities.

o_498v1-nbc-rachel-paprocki-300x201The felony charge sits just below terrorism and treason when ranking the criminal offenses that are known in the Chicago statues. It is a step up from the misdemeanor and carries a lot of serious consequences for the defendant including the loss of their liberty and a debilitating criminal record. As a rule of thumb, an offense becomes a felony if it is capable of attracting a punishment that exceeds one year in jail. Some jurisdictions have gone as far as setting mandatory sentencing for certain felonies in order to control the court process in such a way as not to dent public confidence in the system. Others have classified obsolete felonies as being non-prosecutable.

There is considerable public debate as to whether the classification of felonies is appropriate for this century. For a start, the idea of a permanent criminal record might sound good in terms of retribution and public safety. However, the reality is that people who are unable to find work will inevitably turn back to crime, which means that the vicious circle will never end. Nevertheless, the trial judge tends to take into consideration a number of factors at the sentence hearing including:

  • Previous known criminality,

https://www.chicagocriminallawyerblog.com/files/2017/01/U.S._Court_House_Chicago_Ill_72168-300x194.jpgUpon arrest, a defendant is normally taken through a preliminary hearing according to the provisions of statutory instrument number 725 ILCS 5/110-5. This is a critical step for the defense lawyers because that is when a finding of probable cause is considered. It can be undertaken by either a judge in chambers or the grand jury. The litmus test is the preponderance of evidence. This evidence is adduced through testimony and some limited cross examination by the prosecutor. Defending attorneys sometimes complain that this stage of proceedings is so obviously dominated by the prosecutor that they can literally set the agenda from the word go.

The finding of a probable cause then leads to the arraignment and assignment. The rules and practice in Chicago is to take no more than two weeks after the preliminary hearing or grand jury indictment. The presiding judge first assigns the defendant his trial judge. This is the senior judicial officer that will hear the case right through the determination of innocence/guilt, including the consequent punishment phase. The reason for using one judge are rooted in the need to ensure consistency and fairness. In any case, it is expected that the trial judge will have an intimate knowledge of the case which might become critical when handling matters of appeal.

Advice from Seasoned Attorneys

w33-zg-dnl4-rami-al-zayat-300x200The internet has not only opened up new avenues of communication, but has also created an entire category of crimes that require bespoke responses from the legislature. It is from that perspective that Chicago has come up with an internet solicitation legal framework which captures cyber sex crimes (720 ILCS 5/11-6.6 for enticement), among other things. On the other hand, the rules as they exist have left the door open for vigilantes and ingénues to entice otherwise ordinary citizens into compromising situations. The web sting has become an effective tool for police to target suspected pedophiles and other types of online offenders. More recently the phenomenon of revenge porn and unsolicited sexting has plagued legislatures across the globe. For the defense attorney, entrapment might be one of the critical issues that needs to be examined.

How the Law is Designed and Implemented

For a person to fall within the ambit of the law, they must knowingly engage in acts that amount to criminality, but the lines are blurred when undercover agents effectively encourage predisposed people to engage in illegal acts. At other times the law is the only way of being able to capture those sophisticated offenders who have a secretive network of contacts that are able to access some of the most offensive material that is currently available on the internet. Typically the offender is so unsympathetic that the public is unable to pay any attention to the civil liberties issues that may have been raised during his or her arrest, trial, conviction, and sentencing. Ignorance and apathy remain key characteristics of the type of offender that engages with the internet in this way (see 720 ILCS 5/11-6 for indecent solicitation and online sexual solicitation rules). Some may consider it relatively harmless to surf certain pages while others are simply unaware that they are breaking specific laws in Chicago.

Justice3Prosecutorial discretion in Chicago has always been a controversial issue particularly if the public feels that there is an element of unfair selection and victimization. One of the leading practitioners of the deferred prosecution program is the Cook Country State Attorney. This program has been in operation since 2011 but is not without its detractors. For example, it has been subjected to an evaluation by the Illinois Criminal Justice Information Authority. The grant for this research was offered by the Loyola University Chicago. The success of the program has led to its being designated as the model of good practice for the Offender Initiative Program. All these interventions are enshrined in the Illinois Statute book under 730 ILCS 5/5-6-3.3. The three major objectives of the program are as follows:

  • Increase and protect public safety
  • Ensure the best use of available resources

RIP_Freddie_Gray_flyerSometimes it is hard to tell who is a victim and who is a perpetrator when it comes to intimidation and extortion crimes in Chicago. Defense attorneys have too often found themselves changing their roles in order to effectively prosecute the police department for a series of failings including gross incompetence and outright violations of the defendant’s rights. Some have argued that so called “predictive policing” is nothing more than a ploy to cover up the misdeeds of the law enforcement agencies who harass citizens particularly those from seemingly powerless and marginalized communities.

Woe befall an attorney defending someone on the “Heat List.” Effectively that person is branded a potential gang member based on fuzzy models. An arrest soon follows (sometimes repeatedly) whilst the real criminals continue to roam the streets. Nevertheless, is not too hard to sympathize with the Chicago law enforcement agencies who are faced with an increasing crime rate and the state’s reputation for grand lawlessness. They have to stab at something in the absence of a reliable predictor of criminality. In any case the US Constitution is not particularly supportive of the notion of “Preventative Arrest.” However, in their zeal to protect the public, the Chicago law enforcement agencies have gotten the basics wrong.

The Never-Ending Plight of Minority Communities

DSC04156-BThe state and definition of counterfeiting laws will tell you a lot about the community in which they are designed and implemented. Illinois is no exception. The state has a set of complex and situational rules relating to counterfeiting and forgery; a true Pandora’s Box for a diligent attorney. For the most part, the law seems to target those who create forged money, but there are many other forms of falsification that are captured by the legislation. A person is guilty of a crime in Illinois when he or she creates or uses written documents that have been falsified or altered in significant ways. In this case the constituent ingredients of the crime can encompass both the making of forged/altered documents as well as possessing them with the intention of using them for illegal purposes.

A Counterfeiting Law for the New Age

As criminals in this area have become more sophisticated in their modus operandi, the law has been forced to play catch-up. For example it recognized the use of false documents for defrauding in which possession is disputed as well as the effects of subtle alteration using digital means (720 Ill. Comp. Stat. § 5/17-3). The classic case is that of a forged check that is successfully cashed by a third party because the signature on it appears to be authentic to the recipient bank regardless of whether or not the account holder actually gave permission for that cheque to be paid. The elderly and those with disabilities are particularly vulnerable to this type of fraud. As the case made it through the courts, it became a gradually-established norm that the instrument used to defraud must be credible to an ordinary reasonable person. Hence where the forgery is almost comical in its design and presentation, the user may be able to escape a criminal charge.

LAPD_Arrest_North_HillsClients who are involved with the criminal justice system in Illinois are understandably intimidated by the processes and rules. That initial panic is the main reason why so many defendants make a host of mistakes that come back to bite them later on as the case is disposed of. The first issue to consider is that of adequate legal representation. The state-appointed attorney should be a last resort if there are absolutely no alternatives save from self-representation.

In serious cases such as murder, rape, or assault the court insists on legal representation. If the client is unable to come up with representation, then an attorney or public defender will be appointed on their behalf. Unfortunately the quality of representation is not as high as would have been the case if you select your own attorney. In any case, it is important to understand the various stages of the criminal case processes so that you are not taken by surprise:

  • Making a criminal complaint: A victim of crime will contact the law enforcement agencies to get help. This normally via the 9-1-1 call. Later on the victim may decide to press charges. In some cases the law enforcement agencies will press charges even where the victim refuses to engage with the process. This is because in Illinois (like the rest of USA) crimes can be committed against the state.

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The Chicago Tribune reports that a Chicago man is currently being held at the Skokie courthouse jail with bail set at $250,000 for allegedly Tasering a 79-year old woman during an attempted robbery. The man is charged with aggravated battery and attempted robbery after supposedly attacking the elderly woman while she was sitting in her car. The man’s public defender has released a statement indicating that the defendant does not have enough money to post bail. Therefore, he will remain in jail at least until his preliminary hearing which is currently scheduled for September 8th. But why did the court decide to set this man’s bail at $250,000? What factors does a court take into consideration when setting bail? This article provides a brief overview of what bail is and how it is set in Illinois.

What is Bail?

Simply put, bail is the amount of money that a court requires in exchange for releasing an accused criminal defendant from custody while he or she awaits a day in court. Money paid as bail is refundable and is returned to the defendant after he or she appears for the court date and satisfies any other conditions of bail. However, if the defendant skips town or does not appear in court for some reason then that bail is forfeited. The idea is that defendants who have posted a seizable bail will be strongly incentivized to show up at court for their trials.

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Last month, African American teenager Paul O’Neal was killed when a Chicago police officer shot him in the back during a controversial arrest. This shooting has outraged the African American community in Chicago and has worsened the already strained relationship between the police and the community. In fact, Fox News reports that three Chicago gangs are plotting to shoot police officers in retaliation. Apparently the Chicago Police Department (CPD) alerted its officers last week that three local gangs, the Vice Lords, the Black Disciples, and the Four Corner Hustlers, met in order to exchange guns and discuss plans to shoot CDP officers.  

Penalties for Killing, Harming, or Intimidating a Police Officer

Under federal law 18 U.S.C. § 1121, it is a capital offense to intentionally kill a state or local law enforcement officer or employee, who is working with federal law enforcement officials during a criminal investigation,: