Articles Posted in Criminal Law

On July 18, 2023 the Illinois Supreme Court handed down its long anticipated ruling in Rowe v. Raoul, 2023 IL 129248.  Siding with the Appellants in this matter, the Illinois Supreme Court has rejected the constitutional objections to Public Acts 101-652 and 102-1104.  Cash bail will be eliminated in Illinois effective September 18, 2023.

The opinion was delivered by Justice Theis with dissents by Justices Overstreet and Holder White, the Illinois Supreme Court reviewed the constitutional framework for bail in Illinois.

It is important to note that the Court’s decision does not mean that every person charged with a crime will be automatically released, the act itself includes a list of enumerated offenses for which the trial courts may consider pre-trial detention if the defendant poses a real threat to the safety of any person or the community.  That list can be found in 725 ILCS 5/110-6.1 and includes the following:

The Jencks Act

The origins of this Act are in a 1957 U.S. Supreme Court case called Jencks v. United States, 353 U.S. 657 (1957).  Clinton Jencks, a labor activist and union leader, was charged and convicted of filing a false “Affidavit of Non-Communist Union Officer” with the National Labor Relations Board.  Jencks swore in his affidavit that he was not a communist, but the Government alleged that he was.  The case against Jencks relied heavily on the testimony of two paid FBI informants. During the course of his trial, the defense moved to have the statements of these two witnesses produced (i.e., turned over to the defense) so that they could be inspected and used in cross examination at trial.  The trial judge denied that motion.

The Government essentially believed that it did not have to produce statements of witnesses against a defendant, made at the Government’s request, and who were paid by the Government for being a witness against the defendant.  The trial court agreed with the Government, and the appellate court did too.  Thankfully, the Supreme Court thought otherwise.

In Central Illinois the Lovelace case was big news.  Some of you may have even followed it closely as it made its way through the courts and Mr. Lovelace hired different attorneys.  In 2014 in Adams County, Illinois, Mr. Curtis T. Lovelace, a local lawyer, was charged with First Degree Murder.  Mr. Lovelace spent 22 months in jail and after his first trial ended in a mistrial, his family and friends were able to post the $350,000.00 in bond that had been set in his case and in June 2016 he was released on bond on electronic monitoring.  In March 2017, Mr. Lovelace was found not guilty and he was released from bond and electronic monitoring.  Unfortunately for Mr. Lovelace, however, his legal nightmare was not over.  There was still the issue of the 10% fee which is customarily kept by the Clerk whenever bond is posted in any case.  Because Mr. Lovelace had posted $350,000.00 in his case, 10% was $35,000.00 which is obviously well more than was needed to administer electronic monitoring from June 2016 until March 2017 while he was on pre-trial release.  Judge Hardwick ordered that the Clerk retain that 10% and in addition ordered that the Adams County Clerk could retain an additional fee the electronic monitoring from June 2016 to March 2017 meaning that the Adams County Clerk kept more than $40,000.00 from an individual whom a jury determined was not guilty of the crimes the State had charged him with.

In May 2018, in People v. Lovelace,  the 4th District Appeals Court agreed and held that the trial judge had not abused his discretion in ordering 10% of the bond money be paid to the Circuit Court Clerk.  The 4th District reasoned that the trial court had not abused his discretion because he had outlined his reasoning in his order and made clear that he was aware that he could order less be paid to the Clerk.  Further, the 4th District held that Mr. Lovelace had forfeited certain arguments about deducting the electronic monitoring fees from the 10%.  The 4th also held that Mr. Lovelace’s constitutional rights were not violated by awarding the Circuit Clerk such a hefty fee.  In part, the 4th reached this conclusion because the bond fee was not imposed as a price for the acquittal but was a fee imposed for all individuals who took advantage of the bail bond statute to secure their pre-trial release.

This seems somewhat contrary to the recent push for Criminal Justice reform nationally and to the bail reform that was just implemented in Illinois in January 2018 (725 ILCS 5/110-5).  The 4th District’s reasoning tends to discourage the posting of large bond payments even when the funds can be amassed as acquittal does not appear to weigh in favor of returning those funds even when to award them to the county clerk amounts to a windfall for the clerk.  In Mr. Lovelace’s case third parties posted his bond.  But how willing are third parties going to be to post such large bonds if they know it is likely that county clerks are going to swallow up tens of thousands of dollars in addition to whatever actual fees other county offices incur in administering home confinement even after the individual has been acquitted?  While steps in the right direction are being made for individuals charged with crimes, there is still much work to be done to make sure that individuals are not burdened further financially once they have been acquitted of the crimes they have been accused of committing.  Innocent individuals should not have the financial misfortune of having to support the county clerk’s office after having suffered through the nightmare of being wrongfully accused.

If you have ever heard someone in central Illinois complain about the State dismissing a criminal complaint against them and then still seizing their property on basis that the property was illegally obtained – believe them.  It happens, or it used to happen, with some regularity before the law was changed.  As of July 1 of this year hopefully this scenario will be a far less common occurrence.

One of the biggest changes is that the new law does away with cost bonds.  Prior to this change, in order to assert and preserve an interest in the seized property, individuals had to come up with a 10% cost bond.  This meant that in addition to (potentially) having to bond themselves out and find and hire an attorney, our clients were also having to come up with additional funds to preserve their right to their own money which the State may or may not have rightfully taken.  Obviously, this was even more of a burden if our clients could not afford to bond themselves out or lost their employment due to their temporary pre-trial incarceration.  Under the new law, no more.  You file your claim and answer and that is sufficient to assert your interest.  Additionally, the new law precludes the seizure of small amounts of currency, less than $500.00, in drug cases and less than $100.00 in all other cases.  And property may no longer be seized in a case when less than 2 “single unit doses” of a controlled substance are the source of the felony offense.  Finally, the burden is on the State to obtain a forfeiture when there is a not guilty verdict or no information/indictment are filed has been raised to clear an convincing evidence.

The new statute also codifies the 8th Amendment to the United States’ Constitution in that the Illinois Legislature has added that any forfeiture under the new law is subject to the “disproportionate penalties analysis” as provided in Section 9.5 of the Drug Asset Forfeiture Procedure Act.

Illinois has finally (effective January 1, 2018) reformed its law regarding the setting of bail in criminal cases.  The goal of this reform is to curtail the practice of holding defendants in custody for lengthy periods of time simply because they cannot afford to come up with the money to pay for their pre-trial release.  But what does this mean for individuals charged with a crime central Illinois who are seeking pre-trial release?  And how can an experienced lawyer help?

Having an experience attorney from the outset of your criminal case allows a defendant to begin presenting the defense of himself/herself from the very initial appearance.  An experienced criminal defense lawyer will be able to help the client navigate the bail/bond system and present the most important information to the court so that the most favorable bail conditions can be set from the beginning.

As an initial matter, when examining the new bail statute in Illinois, it is important to note that the legislature has divided offenses into two categories.  The list of Category A Offenses is lengthy and consists of Class X, Class 1, and Class 2 felonies as well as some Class 3 and 4 felonies as specifically outlined in the statute.  Category B Offenses include: business offenses, petty offenses, Class A, B, and C misdemeanors, and Class 3 and 4 felonies unless otherwise specified by the statute.  Regardless of whether an individual falls into Category A or Category B, the statute directs that there is a presumption that bail conditions shall be non-monetary and that the court shall impose the least restrictive conditions or combination of conditions to protect the integrity of the proceedings.  The statute also provides that if an individual is unable to obtain counsel for the initial appearance, a public defender or licensed attorney shall be appointed to represent the arrested individual.  This means that every individual will be given an opportunity to present their case for pre-trial release to the judge, through an attorney, from the very first time they appear in court instead of having to wait weeks or months as was previously the case.

Criminal justice reform is a hot topic of late, and thankfully, the Illinois legislature has finally come to the conclusion that if you truly want an individual to be able to fully rehabilitate and re-integrate into society, you have to give them a chance to ‘restore their good name.’  With the passage of HB 2373 which became effective on January 1, 2017, the Illinois legislature cleared the way for individuals with felony convictions to be able to expunge certain felony records.  The full text of the statute can be found at 20 ILCS 2630/5.2, but we will attempt to distill it down to its main points here.

Generally, the law regarding the sealing of felony convictions mirrors the law for sealing misdemeanor convictions which means that all felony convictions, can be sealed except: domestic battery, battery or aggravated battery to an unborn child, violations of orders of protection, DUI, reckless and aggravated reckless driving, sex crimes, committing or attempting to commit crimes that would require registration on the sex offender registry, and crimes against animals under the Humane Care for Animals Act.

However, it is important that the individual seeking to have their records sealed be sure that they are ready to live a life on the straight and narrow because once an individual exercises his/her right to seal convictions under this law, no subsequent felony convictions can be sealed.  Moreover, if a new felony conviction is committed after the sealing of previous records, the court can unseal all previously sealed records.

We are criminal defense attorneys and DUI lawyers located in Springfield, Illinois and serve clients all over central Illinois.  Frequently we have clients who have never needed the services of an attorney before or who feel that they have been under-served by an attorney they have had in the past.  Hiring an attorney is one of the most important first steps any client makes in defending against charges brought against them, whether the charges are simple traffic violations or more serious felony or DUI charges.  To that end, we’d like to share with you our thoughts about what to look for, and what to expect, when hiring a lawyer to defend you against criminal charges:

  1. You should hire a lawyer you feel comfortable talking with.  Our ability to obtain the result you seek depends on many things, but one of the most important is communication.  If you do not feel that you can openly communicate with us, then it will be much more difficult for us to effectively help you.  We need you to communicate with us about your case: the good, the bad, and the ugly.  We need for you to communicate with us about what resolution you want to seek for your case.  We need you to communicate with us about how potential resolutions might affect your employment, education, or home life.  We need you to communicate with us if you believe there is evidence that will help you but that the State has not gathered.  No one knows your case better than you—and we cannot begin to know your case as well as you do unless you tell us everything you know about your case.
  2. We work for the client and not for the person who may be paying the bills.  This is an important point.  We understand that our clients often have family members and friends who help pay their legal fees.  However, it is important for those family members and friends to understand that it is ultimately the client who we are working for, and thus our client calls the shots with regard to how his or her case gets resolved.

Sex offenses.  A conviction for these types of crimes is perhaps the most life altering of any conviction (felony or misdemeanor).  Our clients who have been charged with sex crimes deal not only with the stigma of labels like “sex offender” “sexual predator” “rapist”, but also with the enduring label of a sex offender registry.  Typically, if a person is convicted of a crime, he or she may progress through a few labels—from “defendant” to “probationer” or “inmate” and then “parolee.”  Once the sentence has been served, however, the worst label they have left to deal with is “felon.”  Being labeled a felon is certainly negative, and has serious consequences on the kinds of jobs individuals can apply for  and the kinds of employers who are willing to hire them.  But being labeled a felon usually does not prevent individuals from being able to live in certain neighborhoods or with their own children.

Not so for those convicted of sex crimes.  The most harrowing part of a sex crime conviction is the registry period after release from DOC or the plea (if probation is given or it is a time-served disposition).  Not only does being on the registry subject its registrants to public shaming, much like wearing a scarlet letter, but it limits where they can live, who they can live with, and where they can work (assuming that they can find an employer willing to hire them).  Frustratingly, there is little evidence that the registry requirement reduces sex crimes or lessens an offender’s likelihood to re-offend.   However, the State has decided that such seemingly-punitive measures must be imposed on all individuals who have been convicted of a sex related crime.*  One of the problems is that many individuals who find themselves subject to the registry are not actually dangerous criminals lurking in dark alleys waiting for their next victim.  In fact, we find that frequently individuals who find themselves subject to the sex offender registry are subject because of serious lapses in judgment as opposed to violent or deviant sexual behavior.

As a society, we have found it easy to target individuals who have committed sex offenses with punitive measures because it can be hard to find the redeeming qualities in someone who would abuse or assault another person sexually.  That reaction is natural.  However, the blanket approach that our legislature has taken to all sex offenders everywhere does a disservice to those who have committed sex offenses, not because they are dangerous criminals but because they are human beings who made a poor choice, as well citizens who are just wanting to be protected from those who would commit such and offense.  The latter group, citizens wanting to be protected from individuals who are sexually deviant, are ill-served by the blanket approach because all they see is the label “sex offender” and are, therefore, concerned about every individual on the list as opposed to just those who might actually have violent sexual tendencies.  Those who are required to be on the list are not served because: (1) they are prevented from ever fully re-entering society because of the scarlet letter attached to their name; (2) their housing options become limited; (3) time with their own children (when their offense had nothing to do with children) is limited or terminated altogether; and (4) their job prospects are limited.  A great deal of hardship thus results from the registry requirement, making it seem quite punitive to those affected by it—even though the registry requirement has been determined to be “remedial” by the Illinois Supreme Court.

Given the recent termination of the DACA program, it is understandable that even lawful non-citizens living in our country may be concerned about the security of their residency right now.  If this is you, or you are concerned about your immigration status, hire an immigration attorney, and please educate yourself about what to do if ICE knocks on your door.  Make sure that they have a warrant signed by a judge and that the warrant lists a specific person at that residence.  Do not lie or present false documents if they force their way into your home.

If you or a loved one are a lawful non-citizen and find yourself charged with a crime, a good criminal defense lawyer is essential.  The implications of a criminal conviction, even for a misdemeanor, even if the client is given supervision, can be catastrophic if the person looses their right to legally reside in our country.  The laws regarding the loss of legal status were in place even before DACA was terminated.  However, the concern is that some prosecutors may not realize the devastation a criminal conviction of any kind, no matter how minor, may have on a legal non-citizen’s status in or country.  And there is always a concern that law enforcement may see an individual’s status as immigrant (or legal non-citizen) as permission to target those whom they believe do not have citizenship rights.  If you are facing criminal prosecution and have not obtained citizenship in this country, please make sure your criminal defense attorney knows this very important fact.  There are sometimes ways we can help you avoid the very serious consequence of losing residency, but we cannot help if we do not know there is an issue.  It is also important to understand that possible resolutions for your case may depend on whether you have a visa or a green card and that sometimes the outcomes for those two types of cases do not make logical sense.  Do not assume that because you have a green card your residency is more secure than if you have a visa or vice versa.  It is also important to let your criminal defense lawyer know if you are not a lawful citizen of our country as a criminal conviction may adversely affect your ability to later apply for legal residency in our country.  Again, your attorney cannot help you if he/she does not know all of the issues.

There are States, Illinois among them, who have sued the Federal Government over the cancellation of the DACA program.  The basis of this lawsuit is that the program was ended for discriminatory purposes.  How that will ultimately be resolved and whether Congress will pass legislation making it a non-issue is yet to be seen.  The best way to protect yourself in this situation is again to know your rights.

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