The Law of Unintended Consequences and SB3164

On August 19, 2016, Governor Bruce Rauner signed SB3164 into law.  The interesting part for me is the provision which amends 730 ILCS 5/5/-4-1 by adding section (b-1). It reads:

 (b-1) In imposing a sentence of imprisonment or periodic imprisonment for a Class 3 or Class 4 felony for which a sentence of probation or conditional discharge is an available sentence, if the defendant has no prior sentence of probation or conditional discharge and no prior conviction for a violent crime, the defendant shall not be sentenced to imprisonment before review and consideration of a presentence report and determination and explanation of why the particular evidence, information, factor in aggravation, factual finding, or other  reasons support a sentencing determination that one or more of the factors under subsection (a) of Section 5-6-1 of this Code apply and that probation or conditional discharge is not an appropriate sentence.

On its face, this is a bill which aids in criminal justice reform.  Class 3 and 4 felonies are extremely common offenses charged.  The intent is basically to say, “First time offenders shouldn’t get jail unless the Court reads a report”.  However, as I closely examine the wording of the statute, some interesting thoughts have come to mind.

First, if we can consider the words,

“[I]f the defendant has no prior sentence of probation or conditional discharge and no prior conviction for a violent crime[. . .]”

As a practical matter, that wording automatically excludes a large amount of felony Defendants.  Many have priors for “something”, be it disorderly conduct or driving while license suspended.  Just about the only thing that excludes is “straight convictions” on generally minor offenses.  The vast majority of Defendants who are not given Court Supervision are given either probation or conditional discharge.  The added wording, “no prior conviction for a violent crime” is as a practical matter nearly redundant.  With the exception of special circumstances (410 probation comes to mind)  Defendants who have been sentenced to probation or conditional discharge are by law adjudicated as convicted of the offense charged.  Thus, the only thing added for violent offenses is “straight convictions” for violent offenses, which is not is a very large group of potential Defendants.

The real problem is this section:

“[T]he defendant shall not be sentenced to imprisonment before review and consideration of a presentence report […]”

On its face, that is also a reasonable statute.  However, the reality is that there is a large group of defendants who are held in custody prior to sentence.  They are the Defendants who are indigent/poor.  For example, the Chicago Daily Law Bulletin published a criticism by Justice Anne Burke of the Illinois Supreme Court on December 11, 2015 about the mechanical way bond is decided in Cook County.  The Daily Herald also published a second criticism by Justice Anne Burke on August 22, 2016.  All those words can be condensed into this simple mental heuristic:  If it is a Class 4 Felony with no priors, bond is X.  If it is a Class 3 Felony with no priors, bond is Y.  Almost every Courtroom mentally applies the same thing and does not take into consideration the Defendant’s ability to pay.  DuPage County is much the same way as Cook County.  Such Defendants are essentially held in custody until a plea to “time served”.  How does that reality alter the intent of this statute?  There are two ways this could go:

Option 1:  Eligible in-custody Defendant pleads guilty and is not sentenced to incarceration, despite being in custody.  Therefore, they are not legally given their credit for time served (and the accompanying minor $5 per day financial credit towards fines owed).

Option 2:  Eligible in-custody Defendant pleads guilty, but must wait until a Pre-Sentence Investigation report (PSI) is completed prior to getting out.

If Option 1 is the legal route the Courts choose to take, then almost certainly the indigent Defendant is losing out on any credit for time served, and any financial reduction in terms of fines owed.

Perversely, if Option 2 is the legal route, the Defendant is held in custody for longer than if this statute did not exist, under the guise of helping him.  We call this the law of unintended consequences.

In other words, this statute does not do much because most Defendants are not qualified for it.  Those Defendants who are qualified typically would have gotten a sentence of conditional discharge or probation and community service work the first time around.  Perhaps Sheriff’s Work Alternative Program (SWAP).  On the other hand, those Defendants who are indigent but qualified are actually somewhat stinted.

In the grand scheme of things, I rate this new statute as not moving the needle of criminal justice reform very far in either way.  It looks great on paper, but it won’t do much in courthouse of reality.  If anything, it may discourage the State from amending Class 1’s and 2’s down to Class 3’s and 4’s for first time offenders, because the State would be prohibited from seeking jail time as part of the bargain.

How many Defense Attorneys have heard, “I’ll amend it down to a Class 4 if they take 14 days in jail” before?

Despite 730 ILCS 5/5-3-1 reading:

A defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court.

The proper response from the experienced Criminal Defense lawyer to that statute, and this new statute is, “We will waive the PSI, Your Honor.”  The cold reality is that adding more procedures does not automatically mean adding to procedural due process.

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