Category Archives: General Post

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!




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.


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.

Illinois Decriminalizes Minor Amounts of Marijuana

Earlier today, July 29, 2016, Governor Bruce Rauner of Illinois signed Senate Bill 2228 into law.

There are several main provisions to which particular attention should be paid to:

#1.  Under Section 99 of SB2228, the Act takes effect upon becoming law, which means it is effective immediately.

#2.  The Illinois Cannabis Control Act (720 ILCS 550/4) was amended to provide the following:

  • Unlawful Possession of Cannabis less than 2.5 grams became a civil law violation with a mandatory minimum fine of $100, and a maximum fine of $200. (Changed from <2.5 grams is a Class C Misdemeanor).
  • Unlawful Possession of Cannabis less than or equal to 10 grams became a civil law violation with a mandatory minimum fine of $100, and a maximum fine of $200. (Changed from 2.5 grams to 10 grams being a Class B Misdemeanor).
  • Unlawful Possession of Cannabis more than 10 grams but not more than 30 grams became a Class B Misdemeanor (Changed from 10 grams to 30 grams being a Class A Misdemeanor).
  • Unlawful Possession of Cannabis more than 30 grams but not more than 100 grams became a Class A Misdemeanor (Changed from 30 grams to 500 grams being a Class 4 Felony).
  • Unlawful Possession of Cannabis more than 100 grams but not more than 500 grams became a Class 4 Felony (Changed from 30 grams to 500 grams being a Class 4 Felony).

#3.  The Drug Paraphernalia Control Act (720 ILCS 600/3.5) was amended to provide that any paraphernalia seized along with a civil law amount of cannabis (less than or equal to 10 grams) also became a civil law violation with a minimum fine of $100 and a maximum fine of $200 (Changed from a Class A Misdemeanor with a minimum fine of $750 and a maximum fine of $2,500 along with the potential for 12 months imprisonment).  Paraphernalia which is seized along with a misdemeanor amount of cannabis (More than 10 grams) remains a Class A Misdemeanor.  *Interestingly enough, that means if you have paraphernalia on you, it is better to have 10 grams or less of cannabis on you too in case you get caught, because you will only face a civil ordinance violation.  If you have paraphernalia and no cannabis with you, it appears to still be a Class A Misdemeanor.  It is somewhat anomalous that a person possessing a pipe and a minor amount of cannabis is punished less than a person possessing the a pipe alone.

#4.  The Criminal Identification Act (20 ILCS 2630/5.2) was amended to provide that all civil law violations for the Cannabis Control Act or the Drug Paraphernalia Control Act are to be automatically expunged on January 1 and July 1 of each year starting 180 days from today (July 29, 2016).

#5.  Most Driving Under the Influence (625 ILCS 5/11-501) charges now have some additional minimum limitation on the usage of Cannabis.   For example, the previous statutory bar on driving while Cannabis is present within the system has been amended to testing positive for tetrahdydrocannabinol concentration of either 5 nanograms or more of delta-9-tetrahydrocannabinol per milliliter of whole blood, or 10 nanograms or more of delta -9-tetrahydrocannabinol per milliliter of other bodily substance.  The test must be conducted within 2 hours of the Defendant driving.  This could potentially lead to an odd result, because a person who takes the test 3 hours from driving and still over the limit would theoretically not be chargeable under the new DUI section.

#6.  CDL holders are still barred from having any amount of THC in their system.

#7.  Civil law ordinance violations for cannabis now have a lower burden of proof which admits cannabis into evidence based upon a properly administered field test or opinion testimony of a properly qualified peace officer (725 ILCS 5/115-23).

#8.  The Juvenile Court Act (705 ILCS 405/5-125) is amended to provide that records pertaining to municipal or County ordinance violations, is to be kept confidential.  There are quite a few “OV” cases where the Defendant was under the age of 18 that are currently openly displayed online.  If this act is to take effect immediately, than it appears any Circuit Clerk that keeps violations online may be in jeopardy of violating the Juvenile Court Act confidentiality provisions.

These are some of the main changes that SB2228 has implemented.  There are a few other changes that have not been mentioned in this post.  Attorneys who represent clients with pending cannabis or paraphernalia related charges should consult SB2228 carefully.

The next question is what effect on pending/previous charges does the new statute have?  Taking into consideration the holding of People v. Glisson, 782 N.E. 2d 251 (2002), section 4 of the Statute on Statutes probably saves DUI (a)(6) prosecutions because the (a)(6) prosecution is a vested right and the repeal of the section is substantive in nature.  However, the sentencing range for cannabis and paraphernalia charges is now likely in the civil violation range.

*Edit (8/19/2016):  Special thanks to Jeff Hall over at Hall, Rustom & Fritz and Sam Partida over at Illinois Case Law Updates for being the best people to work together through the implications of the new statute.  Jeff has a fantastic and detailed write-up of the new statute, and Sam has a great podcast that has a guest star of yours truly.*

Ground Rules

Hello. Welcome to my personal legal corner.  This is a section devoted to the discussion of legal issues. All content will be generated by me unless clearly marked otherwise.  All posts in this section are my own personal opinion. They should not be taken as legal advice.  No posts by me imply any creation of an attorney-client relationship.

Comments are welcome if they are constructive.  Unreasonable comments, as judged by me, will be deleted.

Most posts will only contain a partial analysis. They are not designed to be articles published for Law Review.  They will frequently require some background knowledge in the subject matter.  Other posts may merely attempt to examine common questions posed by legal practitioners or regular people.  Many posts may not reflect my personal opinion, and are instead positions taken as thought experiments or “devil’s advocate” positions.  All posts are “of their time”, and may not be updated to incorporate new legislation or case law.

With those disclaimers out of the way, I present an article I wrote in 2013 examining the interaction between 725 ILCS 5/112A-11.1, 725 ILCS 5/112A-11.2, and 18 U.S.C.  922 (g) (9).