Illinois Informant Testimony

Illinois will have a new rule of criminal procedure effective January 1, 2019.  The statute is 725 ILCS 5/115-21. It is not retroactively effective  (21(g)) The rule of criminal procedure deals with informant testimony, otherwise known as “snitch testimony”. When capital punishment existed in Illinois, this statute protected Defendants by providing for a hearing to determine the reliability of the informant testimony because the informant may be testifying for improper reasons. The Illinois legislature has now amended the law so that it applies to non-capital cases. A breakdown of the major issues is as follows:

  1. This rule only applies to “informant” testimony, which means it must be (1) an admission; (2) made by the accused to the informant; (3) while the informant is detained or incarcerated; (4) in a penal institution contemporaneously. (21(a))

Although there may be some dispute as to the meaning of the word “penal institution”, it is probable that the provided definition will control in general circumstances unless overridden in the section specific statute (See:  720 ILCS 5/2-14 including jails compared to 720 ILCS 5/24-1.1 (b) , 720 ILCS 5/31A-1.1(g), and 720 ILCS 5/11-9.2(g)(1) implying penal institution is Department of Corrections). Therefore, the informant must be incarcerated at the same time as the Defendant and does not apply if the informant was free at the time of the statement.

  1. The rule only applies to a limited number of offenses, namely: 720 ILCS 5/9-1 (First Degree Murder), 1.2 (Intentional Homicide of an Unborn Child), 2 (Second Degree Murder), 2.1 (Voluntary Manslaughter of an Unborn Child), 3 (Involuntary Manslaughter and Reckless Homicide), 3.2 (Involuntary Manslaughter and Reckless Homicide of an Unborn Child), 3.3 (Drug Induced Homicide), 11-1.30 (Aggravated Criminal Sexual Assault), 1.4 (Predatory Criminal Sexual Assault of a Child), and 20-1.1 (Aggravated Arson. (21(b))
  2. The rule requires disclosure at least 30 days prior to a relevant evidentiary hearing or trial
    (1) The complete criminal history of the informant;
    (2) Any deal, promise, inducement, or benefit that the offering party has made or will make in the future to the informant;
    (3) The statements made by the accused;
    (4) The time and place of the statements, the time and place of their disclosure to law enforcement officials, and the name of all persons who were present when the statements were made;
    (5) Whether at any time the informant recanted that testimony or statement and, if so, the time and place of the recantation, the nature of the recantation, and the names of the persons who were present at the recantation;
    (6) Other cases in which the informant testified, providing that the existence of such testimony can be ascertained through reasonable inquiry and whether the informant received any promise, inducement, or benefit in exchange for or subsequent to that testimony or statement; and
    (7) Any other information relevant to the informant’s testimony. (21(c))

Further, the burden is on the prosecution to disclose 30 days before any relevant evidentiary hearing or trial and have the Court conduct a hearing to determine whether the informant is reliable. According to section (d), the burden is on the state to show by a preponderance of the evidence that the informant’s testimony is reliable. (21(d))

In addition, the Court is permitted to toll a Defendant’s speedy trial period upon good cause show if informant testimony was not well known prior to the 30 day notice period in order to set a reasonable notice period. (21(d-5))

Finally, if there is a lawful recording of the incriminating statement made by the accused, OR of a statement from an informant to law enforcement or the prosecution, including any deal or other benefit offered to the informant, the accused is permitted to request a reliability hearing (21(e)).


Congratulations Rachel Mast!

The election season is over!

More importantly, it is with great pleasure that I congratulate my former associate, Rachel (Bloom) Mast, on becoming the Hancock County State’s Attorney.

I first met Rachel when she was an intern at the McDonough County State’s Attorney’s Office. I was one of the attorneys who supervised her internship. She later joined my office after she graduated law school. Rachel stayed in my office until she was hired as an Assistant State’s Attorney by my old boss, McDonough County State’s Attorney James L. Hoyle. From there she grew as a young assistant state’s attorney until she eventually filled my old position as First Assistant of the McDonough County State’s Attorney’s Office. Since then, she has progressed even more to become the attorney who is responsible for all criminal and civil matters for one of the 102 Illinois Counties.

Watching her grow from traffic tickets to murder cases has been a great source of professional pride. Congratulations once again on your election as Hancock County State’s Attorney!

 

-KW

 


Korematsu and its Progeny

Justice Scalia’s favorite opinion was the dissent in Korematsu by Justice Robert Jackson. Justice Jackson wrote regarding Korematsu:

[O]nce a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens . . . The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.

Justice Antonin Scalia acknowledged that Korematsu was wrongly decided, and yet he also believed that the Korematsu decision could realistically be upheld in the future. He noted that, “In times of war, the laws fall silent.” It was an acknowledgement that the law is an ideal which bends at the behest of reality.

Justice Scalia also believed that the phrase “Such-and-such case and its progeny” was once a wonderfully vivid description which had become overused and cliché. However, consistent with the Japanese culture of adoption, Korematsu may have adopted a logical progeny in Trump v. Hawaii.

The Supreme Court wrote that, “[The law] exudes deference to the President in every clause.” The Court asserted, “Any rule of constitutional law that would inhibit the flexibility […] of the President to respond to changing world conditions should be adopted only with the greatest caution…and our inquiry into matters of entry and national security is highly constrained.”  [emphasis added] The conventional review would only look to see if any proposed law was facially legitimate and bona fide, and yet the Court also considered whether the policy was plausibly related to the Government’s stated objective to protect the country. It noted that a law would only be struck down if the laws at issue “lack any other purpose other than a bare desire to harm a politically unpopular group.”

In contrast to the Masterpiece Cakeshop decision, the Court declined to truly search for any animus and truthfully only looked at the face of the executive order.  Going further, Justice Kennedy wrote in his concurrence, “There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention.” Yet, the full context of his concurrence echoes the dissent of Justice Jackson:

If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history

Hence, Justices are ostensibly willing to look beneath the bare face of an order, but are unwilling to see what was truly lurking beneath.

Here, the Court disclaimed the holding of Korematsu while simultaneously adopting the deferential reasoning which underpinned Korematsu. The majority wrote:

Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and –to be clear- has no place in law under the Constitution.

Yet Justice Scalia would have astutely held that conservative judicial philosophy requires holding that Korematsu is not before the Court and therefore the Korematsu disclaimer is of no import. The actual holding would have been the same rationale which Korematsu was based on – The eyes of the law may be blindfolded by the cloth of national security. Any cloth is acceptable, including whole cloth.

This is an example of many eyes looking, but few eyes truly seeing. Rot can begin on the inside and crumble even the strongest of foundations while concealed from sight by the thin veneer of political due process.

Perhaps there is no longer any place in this country for substantive due process.  Yet, for the Lady of Justice to truly measure a society on the scales of principle, she must first be willing to take off her blindfold and see with caring eyes. If she is unwilling to take off her blindfold then she will rule by the sword and not by the scale.

Only take heed to thyself, and keep thy soul diligently, lest thou forget the things which thine eyes have seen.

-Deuteronomy 4:9 (Ironic)

Our eyes have never seen it. We are unwilling to believe it until we see it. And by then, our eyes will deceive us.

-KW


UUW/Aggravated UUW Gun Laws Unconstitutional Again

On February 2, 2018, I predicted the Illinois Supreme Court holding for People v. Chairez would cause trouble for the unlawful use of a weapon/aggravated unlawful use of weapon (UUW/AUUW) laws regarding firearms in close proximity to special locations.

People v. Chairez struck down the portion of the unlawful use of a weapon statute which prohibited firearms within 1000 feet of a public park. It appeared that the UUW/AUUW law which prohibited firearms within 1000 feet of a public school was indistinguishable from the law which prohibited firearms within 1000 feet of a public park.

On June 14, 2018 in People v. Green, the 1st District Illinois Appellate Court struck down the prior unlawful use of a weapon statute as unconstitutional based on the logic of Chairez. The Illinois Appellate Court used “elevated intermediate scrutiny” for their standard of review, which required the State to show a “very strong” public-interest justification for the regulation and a close fit between the law’s means and its ends. The elevated standard of review was used because firearm regulation implicates core 2nd Amendment rights. The State was unable to meet their burden by merely showing evidence of firearm violence inside of schools. The Court required the State to produce specific evidence which showed that a 1000 foot zone of safety was effective prior to striking down the statute. Ironically, such evidence would be extremely difficult, if not impossible, to produce without a law prohibiting firearms within 1000 feet of a protected location. Future enactments of the same statute would likely need to rely on research from other jurisdictions.

Importantly, the logic of People v. Green was the previously predicted simple extension of the logic in People v. Chairez, namely:

While a gun owner can simply choose not to enter locations deemed sensitive, it is manifestly more difficult to avoid areas within 1000 feet of those locations, particularly given that there is no notification where the restriction zone begins or ends. Indeed, the ban at issue here, just as the ban 1000 feet around public parks at issue in Chairez, effectively operates as a total ban on the carriage of weapons for self-defense outside the home in Chicago.

People v. Green, 2018 IL App (1st) 143874.

Perhaps most importantly, the Illinois Supreme Court striking down the unlawful use of a weapon/aggravated unlawful use of a weapon statutes on constitutional grounds means that prior convictions for the same may be subject to a motion to vacate – clearing the name of many current criminals. Much like other statutes that have been struck down on constitutional grounds, there are many people who have been convicted under the unlawful use of a weapon/aggravated unlawful use of a weapon statute which may qualify to have their convictions be undone by the filing of a proper motion.


Guns within 1000 ft of public park law ruled unconstitutional

Defendants who have been charged or convicted of unlawful use of weapons charges involving firearms within 1000 feet of a public park (and potentially some other locations) could have their cases overturned or dismissed based upon the new Illinois Supreme Court ruling in People v. Chairez, 2018 IL 121417.

The Illinois Supreme Court held in People v. Aguilar, 2013 IL 112116 that portions of the law concerning unlawful use of weapons, 720 ILCS 5/24-1, were unconstitutional. In legal terms, sections of Unlawful Use of Weapons/Aggravated Unlawful Use of Weapons law were declared v”oid ab initio”. The Aguilar decision was followed by People v. Mosley, 2015 IL 115872.

According to 725 ILCS 5/24-1(c)(1.5),

A person who [commits the offense of unlawful use of weapons] on any public way (road) within 1000 feet of real property comprising any school, public park, courthouse, public transportation facility, or residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development commits a Class 3 felony.

Chairez specifically held that possessing a firearm within 1000 feet of a public park was unconstitutional based upon intermediate scrutiny. The Illinois Supreme Court held that Chairez was a facial challenge to the statute, and that the statute violated a Defendant’s core 2nd Amendment right to possess a firearm with respect to parks, but reserved ruling on the other locations. However, the logic of Chairez can be easily extended. One of the primary issues is that there is no notice for what is a public park. Similarly, 1000 feet is a substantial distance for schools, public transportation facilities, and public housing agencies in an urban location. I suspect a map with overlapping circles in Chicago would cause almost every area to be within 1000 feet of a school, courthouse, public transportation facility, or public housing agency property. After all, a “public transportation facility” could potentially include every subway station in Chicago. That would prevent any meaningful exercise of a Defendant’s Second Amendment rights.

Here is a freehand drawn map of only the first page of Chicago schools listed on Google. There are many more pages of schools. As you can see from the number of schools, it would be nearly impossible to move in Chicago without violating the law in some manner.

Areas within 1000 feet of Chicago Schools

A similar map appears if you draw a 1000 foot circle around every “M” public transportation facility. Urban density makes it impossible for the Second Amendment rights to be exercised.

Locations where I suspect there is a stronger probability that it is still permissible to restrict firearms include near courthouses. Comparatively speaking, it is less likely that the prohibition against firearms at public transportation facilities or public housing agency property  will survive a direct challenge.

As when Aguilar and Mosley were decided, it seems likely that future post-conviction petitions alleging the unlawful use of weapons/aggravated unlawful use of weapons (UUW/AGG UUW) statute as applied to parks is unconstitutional will be successful. People who have been convicted of the charge in Kane, Kendall, Will or DuPage Counties should highly consider retaining an attorney to vacate their previous convictions by contacting us.

 


Crime-Fraud Exception and the Illinois Mental Health Confidentiality Act

Under the Illinois Mental Health and Developmental Disabilities Confidentiality Act, 740 ILCS 11/3 (et seq.),

All records and communications shall be confidential and shall not be disclosed except as provided in this Act. Unless otherwise expressly provided for in this Act, records and communications made or created in the course of providing mental health or developmental disabilities services shall be protected from disclosure regardless of whether the records and communications are made or created in the course of a therapeutic relationship.

Further, under section (10)(a),

[E]xcept as provided herein, in any civil, criminal, administrative, or legislative proceeding . . . a therapist on behalf and in the interest of a recipient, has the privilege to refuse to disclose and to prevent the disclosure of the recipient’s record or communication.

At first glance, the Illinois Mental Health and Developmental Disabilities Confidentiality Act acts as an absolute statutory privilege for mental health care professionals. The privilege can be asserted by the therapist, and act to prevent the disclosure of records. There are some statutory exceptions to the Act. However, it is more interesting to consider a potential non-statutory exception to the act. The common law Crime-Fraud exception. What happens when the therapist has been personally accused of a crime involving their patients?

Historically speaking, the Crime-Fraud exception has only been applied to attorney client confidentiality. One situation it can be applied in is when the attorney has been personally accused of a crime. The Crime-Fraud exception has been used to permit searches of attorney law offices, so long as certain procedures are followed (which will not be discussed here). Historically speaking, the Crime-Fraud exception has deep roots in cases such as Clark v. United States, 289 U.S. 1 (1933), which held that the Crime-Fraud exception applies to jurors as well as attorneys.  More important than the specific holding of Clark though, is the rationale of Clark, as well as many other Federal and Illinois State cases.

Assuming there is a privilege [. . . ], we think the privilege does not apply where the relation giving birth to it has been fraudulently begun or fraudulently continued. [ . . .] The privilege takes as its postulate a genuine relation, honestly created and honestly maintained. If that condition is not satisfied, if the relation is merely a sham and a pretense, the juror may not invoke a relation dishonestly assumed as a cover and cloak for the concealment of the truth.

Clark continues,

We turn to the precedents in the search of an analogy, and the search is not in vain. There is a privilege protecting communications between attorney and client. The privilege takes flight if the relation is abused. A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law.

This rationale is continued in the recent Illinois Supreme Court case of People v. Radojcic, 2013 IL 114197 (2013). In Radojcic,

“The rationale underlying the Crime-Fraud exception is intimately connected to the nature of the attorney-client relationship. [ . . . ] in seeking legal counsel to further a crime or fraud, the client does not seek advice from an attorney in his professional capacity.

In other words, the fatal crack in the armor to the defenses provided by the Illinois Mental Health and Developmental Disabilities Confidentiality Act may be the same crack for juror confidentiality and attorney-client confidentiality. In seeking counsel to further a crime or fraud, the client does not seek advice from a service provider in their professional capacity.

When viewed in this light, there may be a crime-fraud exception to the Illinois Mental Health and Developmental Disabilities Confidentiality Act. As we examine section (3) more closely, we see that records and communications made or created in the course of providing mental health or developmental disabilities services shall be protected from disclosure. Hence, records may not be protected if the assertion is that the records or communications were not made in the course of providing mental health treatment, but were in fact made in the course of committing a crime. Similarly, “Record” is defined in the code as being kept in the course of providing mental health services.

Therefore, the trick to getting around the juror privilege and the attorney-client privilege could potentially also be used to get around the confidentiality provisions of the Illinois Mental Health and Developmental Disabilities Confidentiality Act.

Phrased another way, records which are made in furtherance of crime may not be records made or created in the course of providing mental health or developmental disabilities services. The confidentiality act does not apply because the therapist is not truly acting in their professional capacity.

Can the common law Crime-Fraud exception negate the privilege provided by the Illinois Mental Health and Developmental Disabilities Confidentiality Act? Only time will tell. It does not seem there is any published opinion regarding the Crime-Fraud exception and the Illinois Mental Health Confidentiality Act. Therefore, the brief argument here may be a case of first impression one day in the future!


First Time Weapon Offender Program

On January 1, 2018 the Illinois Code of Criminal Procedure will have a new first offender program to deal with young Defendants who are charged with Unlawful Use of Weapons (UUW) or Aggravated Unlawful Use of a Weapon (Agg UUW). Under the new First Time Weapon Offender Program, 730 ILCS 5/5-6-3.6, the Court may defer the proceedings against an offender for 18 to 24 months. If the Defendant complies with all requirements, the Court may then discharge and dismiss the proceedings against the person. This is a form of deferred sentencing scheme similar to First Offender Probation, along with Section 410/Section 10 probations.

 Under the law, the Defendant will NOT qualify for the First Time Weapon Offender Program if:

(1) The offense is a Class 3 felony or greater; or

(2) The offense was committed during the commission of a violent offense (Defined as: Any offense in which bodily harm was inflicted or force was used against any person or threatened against any person; any offense involving the possession of a firearm or dangerous weapon; any offense involving sexual conduct, sexual penetration, or sexual exploitation; violation of an order of protection, stalking, hate crime, domestic battery, or any offense of domestic violence.) ; or

(3) He or she has had a prior successful completion of the First Time Weapon Offender Program; or

(4) He or she has previously been adjudicated a delinquent minor for the commission of a violent offense; or

(5) He or she is 21 years of age or older; or

(6) He or she has an existing order of protection issued against him or her; or

(7) The State’s Attorney does not consent to the placement to the Defendant in the program.

If the Defendant is placed within the program, he or she will be required to fulfill conditions in order to successfully complete the First Offender Program. The conditions of the First Time Weapon Offender Program shall be that the defendant:

(1) not violate any criminal statute of this State or any other jurisdiction; and

(2) refrain from possessing a firearm or other dangerous weapon; and

(3) obtain or attempt to obtain employment; and

(4) attend educational courses designed to prepare the defendant for obtaining a high school diploma or to work toward passing high school equivalency testing or to work toward completing a vocational training program; and

(5) refrain from having in his or her body the presence of any illicit drug prohibited by the Methamphetamine Control and Community Protection Act, the Cannabis Control Act, or the Illinois Controlled Substances Act, unless prescribed by a physician, and submit samples of his or her blood or urine or both for tests to determine the presence of any illicit drug; and

(6) perform a minimum of 50 hours of community service; and

(7) attend and participate in any Program activities deemed required by the Program administrator, including but not limited to: counseling sessions, in-person and over the phone check-ins, and educational classes; and

(8) pay all fines, assessments, fees, and costs.

The Program may, in addition to other conditions, require that the defendant:

(1) wear an ankle bracelet with GPS tracking; or

(2) undergo medical or psychiatric treatment, or treatment or rehabilitation approved by the Department of Human Services; or

(3) attend or reside in a facility established for the instruction or residence of defendants on probation.

Finally, there may only be one discharge and dismissal under this program. If the Defendant is convicted of any offense which occurs within five years subsequent to the discharge and dismissal, the discharge and dismissal shall be admissible in the sentencing proceeding for that conviction as evidence in aggravation.

These are some additional issues to consider which occurred to me as this article was being written:

(1) Although the age range of this program is essentially from 18 to 21, the educational requirement is that the Defendant complete high school, GED, or a vocational program. If the Defendant has already completed high school though, the only remaining condition option is that the Defendant shall attend educational courses to work towards completing a vocational program. That condition appears to specifically exclude a non-vocational college education. In other words, under the current law, a Defendant with a high school degree must attend a vocational training program, even if they have no intention to attend a vocational training program or are college bound. I look forward to determining how the DuPage County State’s Attorney’s Office and the Dupage County Court handles the Defendant who have graduated high school. I suspect the Court may simply accept proof of college attendance as “working towards completing a vocational training program”.

(2) Although the evidence of First Offender Weapon Probation may be considered “admissible” in subsequent proceedings, it may be insufficient to trigger additional sentencing scheme penalties which depend upon a prior conviction, such as extended term sentencing schemes, or the subsequent cannabis offense enhancements.

 


Deferred Prosecution vs. Court Supervision vs. Conviction

Many clients have asked me what the difference is between a deferred prosecution agreement, court supervision, and a conviction. To make matters worse, there is a difference between a deferred prosecution agreement of a local city ordinance violations and a deferred prosecution agreement of a felony. There are also alternative dispositions such as TASC probation, adjudications and First Offender Probation. Further, there are differences between how the State and the Federal government handle dispositions. The basic question is, “How is my case going to turn out for my record?”

Most dispositions (case results) can be broken down into several groups: (1) A negotiated disposition prior to entry of any plea of guilty; (2) A disposition after a plea of guilty but before a judgment of conviction enters; (3) A disposition that involves a judgment of conviction subject to being vacated; and (4) Dispositions involving actual convictions.

Dispositions Prior to the Entry of Any Plea of Guilty

This category covers cases which were dismissed prior to any plea of guilty. It includes cases which the State has requested to nolle prosequi (declined to prosecute further), Stricken on Leave (AKA SOL, same effect as nolle prosequi, but is essentially unique to Cook County and without a true statutory basis), or dismissed by the Court. It also covers some ordinance violation dispositions agreed upon by your local prosecuting agency, such as the City of Naperville. In such situations, a private agreement is made between the local prosecuting agency and the Defendant, which does not involve a plea of guilty to the Court. It also does not result in a conviction under local Illinois law or Federal law.

Under Federal law, a “conviction” means,

    With respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where – (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

8 U.S.C. § 1101 (a)(48)

Therefore, there is no conviction under State or Federal law. because no plea of guilty is ever entered. The most common question here is, “Will this be on my record?” The answer is actually YES, as an “Arrest”. For the purposes of Illinois, it is taken off your record by expunging it. There is no statutory waiting period for expunging these cases, and the expungement will have the general effect of deleting the offense off your criminal history. However, until an expungement order has been entered, the case will still show in the local circuit clerk’s office and on detailed criminal histories.

Disposition After a Plea of Guilty but Before a Judgment of Conviction Enters

This category covers cases where there was a plea of guilty, but the Court deferred imposing a conviction. Technically, the charge is dismissed. In DuPage County, the most common type of disposition in this category is “Court Supervision”. Court Supervision is defined in 730 ILCS 5/5-1-21 as,

A disposition of conditional and revocable release without probationary supervision, but under such conditions and reporting requirements as are imposed by the court, at the successful conclusion of which disposition the defendant is discharged and a judgment dismissing the charges is entered.

Also included in this section is “Section 10″ probation” (720 ILCS 550/10) of the Illinois Cannabis Control Act, “Section 410″ probation” (720 ILCS 570/410) of the Illinois Controlled Substance Act,  “First Offender Probation” (730 ILCS 5/5-6-3.3),  and “Second Chance Probation”. (730 ILCS 5/5-6-3.4).

The important distinction here is this reuslt does not count as a conviction for Illinois purposes, but does count as a conviction for Federal purposes. (See: United States Citizenship and Immigration Services).

When an (Illinois) employer in this situation asks, “Have you ever been convicted of a misdemeanor or felony”, the technical answer is “no”, because you have not been convicted if you have been placed upon court supervision.

However, for the question, “Will this show up on my record?”, a good check will still answer “yes”. It will show up as a “Court Supervision”. This is contrary to the assertion of some attorneys who say it will automatically be off the Defendant’s record in X years. Law enforcement keeps track of court supervisions because they want to know when you are not a first time offender.

The typical expungement waiting period to clear your record for this situation is two years from the date the case is formally dismissed.

Disposition that Involve a Judgment of Conviction Subject to Being Vacated

This category includes TASC probation (20 ILCS 301/40-10(e)). Here, a conviction is formally entered on your record. It can be vacated after the probationary period has expired if the attorney files the proper paperwork ahead of time. It does initially count as a conviction for both State and Illinois purposes, but will not count as a conviction for the purposes of enhancing a penalty based upon prior offenses if the probationary period is successfully completed. It typically has special requirements for expungement.

Dispositions Involving Actual Convictions

This category includes “straight convictions”. It also includes sentences of “probation” and “conditional discharge”. It is the automatic result of most felony dispositions. When most people ask whether  a case will be on their record, this is one of the types that will officially be considered a conviction. The important parts are the “plea of guilty” and the “entry of a judgment of conviction”. This also includes most “Alford pleas”, or pleas of “Nolo Contendere” under North Carolina v. Alford, 400 US 25 (1970). These cases are frequently not eligible for expungement. However, such convictions can sometimes be sealed in certain circumstances.

 

Ultimately, the real questions being asked are:
(1) Is this a conviction? (It depends on your disposition)
(2) Is this a conviction for immigration purposes? (Yes, almost always if you plead guilty or entered a plea of nolo contendere).
(3) Will this show up on my criminal history or background check? (Yes, almost always unless it is expunged).


Ordinance Violation Fines and the Decriminalization of Paraphernalia/Cannabis

I have received several questions regarding the relationship between local city ordinances and the decriminalization of cannabis. For example, why can the City of Naperville charge $750 for an unlawful possession of drug paraphernalia ordinance violation, but the new law says the maximum fee is $200?

The standard defense lies in SB2228, now known as Public Act 099-0697.

(720 ILCS 550/17.5 new)

Sec. 17.5. Local ordinances.

The provisions of any ordinance enacted by any municipality or unit of local government which imposes a fine upon cannabis other than as defined in this Act are not invalidated or affected by this Act.

This is commonly cited as the provision by which all ordinance violations are unaffected. For example, Jeff Hall’s blog reads, “The provisions of any ordinance enacted by any municipality or unit of local government which imposes a fine upon cannabis other than as defined in this Act are not invalidated or affected by this Act. (emphasis Jeff’s)”. Indeed, even I have cited the exact same provision for the exact same proposition at Illinois Case Law Updates.

However, a close reading of PA 099-0697 is that this provision only saves fines which were imposed upon cannabis. Paraphernalia is not cannabis, and therefore 720 ILCS 550/17.5 does not apply to possession of drug paraphernalia. Does that mean the mandatory minimum fine is not $750?

I propose an alternative defense which begins with the question, from where does the local municipality derive its authority?

From 65 ILCS 5/1-2-1.1, which reads:

Sec. 1-2-1.1. The corporate authorities of each municipality may pass ordinances, not inconsistent with the criminal laws of this State, to regulate any matter expressly within the authorized powers of the municipality, or incidental thereto, making violation thereof a misdemeanor punishable by incarceration in a penal institution other than the penitentiary not to exceed 6 months. The municipality is authorized to prosecute violations of penal ordinances enacted under this Section as criminal offenses by its corporate attorney in the circuit court by an information, or complaint sworn to, charging such offense.

Here is the legal question – If a person is arrested with a low level amount of cannabis and drug paraphernalia, what is the maximum punishment the city can impose? Under 720 ILCS 550/17.5, the answer is $200. However, under 65 ILCS 5/1-2-1.1, the answer is the penalty set by the city ordinance. In Naperville’s case, the penalty is $750. (City of Naperville Code)

This is because the ordinance passed by Naperville is not “inconsistent with the criminal laws of this State”. It is merely inconsistent with the civil laws of this state, because paraphernalia found with cannabis is a civil law violation. Therefore, the penalty for ordinance violations of marijuana and drug paraphernalia is still appropriate when set by the local municipality. In other words, the authority to charge more for a drug paraphernalia or cannabis case is from the inherent power of the City to make its own ordinances.

As a practical matter, so long as it is a deferred prosecution agreement, you are not directly going through the court system and can thus “agree” to a fine of $750. Since deferred prosecution is better than any plea of guilty, criminal defense attorneys should leave this provision alone rather than argue that the provisions regarding the $200 maximum fine are part of the Illinois Criminal code.


Why Are Lawyers Sending Me Junk Mail After I’ve Been Arrested?

Hypothetical situation: You are cited for some offense such as underage drinking, unlawful possession of cannabis/paraphernalia, or retail theft by a local city prosecutor such as the City of Naperville. It could be an ordinance violation, misdemeanor, or felony.  Before the court date on your ticket for the Dupage County Courthouse located in Wheaton, your home address is suddenly flooded with junk mail from attorneys. The advertisements often display fearful language such as “jail” or “lose your driver’s license”. Worse yet, perhaps the mail landed in the mailbox of someone you would prefer to keep in the dark about your secret, such as your parents. Sound familiar?

You’ve just been the victim of “arrest mail spam”. Some of the spam is gentle. Some of the spam is designed to provoke fear. However, the goal for all of the spam is to turn you into another case for them.

 

How did they get my information?

Lawyers regularly pay third party services to obtain information from local police bookings, such as your name and registered address. They also search the public records of the Circuit Clerk’s office to see the most recent filings. Frequently, this information is published in the newspapers as part of a “Police Blotter”. It may look something like this:

 

 

Monday, April 10

Driving under the influence 

Addison Westmont, 27, of the 4000 block of Saratoga Avenue in Downers Grove, was arrested at 1:24 a.m. in the 1700 block of Naper Blvd. in Naperville, police said. She was charged with driving under the influence of alcohol, unlawful consumption of alcohol by a minor, and speeding. Her bail was $3,000.

 

From there, Ms. Westmont will receive arrest mail spam from lawyers advertising services for DUI. The advertisements may talk about saving her driver’s license or stopping her from going to jail. It may end up being seen by people such as her roommates, friends, or parents.

 

Is there anything I can do to stop them?

Unfortunately, much like the rest of junk mail, there is no easy way to stop the other attorneys from sending you the advertisements. The arrest mail spam will generally taper off in a few weeks. The reason every lawyer is sending you an advertisement is because attorneys have decided that arrest mail spam works. The only way to stop arrest mail spam is to make lawyers realize that they are spending too much money on junk mail and not getting enough clients from it.

This is a world where people prefer to avoid broadcasting the fact that they have been arrested. Attorneys should have their client’s best interest in mind. Therefore, attorneys who mail criminal law advertisements may jeopardize the privacy of any potential client, and also risk showing that they are more interested in getting a new client than treating their client’s concerns as #1.

Please feel free to contact us if you require legal assistance. We won’t contact you first.