Drug Felony

July 18, 2023

Cash Bail Eliminated in Illinois

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:

February 7, 2023

The Jencks Act and Defending Federal Criminal Cases

by Sara M. Mayo Vig

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.

January 3, 2023

Bail Reform in Illinois – Implementation of the Pretrial Fairness Act

by Sara M. Mayo Vig

On December 31, 2022 the Illinois Supreme Court stayed implementation of the Pretrial Fairness Act pending appeal from the Kankakee Circuit Court Order entered on December 28 which severed those portions of the Safe-T Act.

On October 31, the Illinois Supreme Court entered an order consolidating all of the pending litigation into one case pending in Kankakee. This was done by agreement of all the parties. A number of smaller counties did not originally join this lawsuit but upon entry of the Kankakee Circuit Court Order of December 28 began issuing orders and opinions that the Kankakee Order meant that the Pretrial Fairness Act was severed in their counties as well. This would obviously have lead to a great deal of litigation regarding whether the Kankakee Order applied to those counties which originally declined to join the lawsuit. The Statewide stay pending appeal curtails litigation on this subject.

On December 28, the Kankakee Circuit Court entered an order on the cross motions for summary judgment pending before it.

November 26, 2018

Civil Asset Forfeiture and Criminal Charges in Illinois

by Sara M. Mayo Vig

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.

August 25, 2017

Drug Addiction and Criminal Charges in Central Illinois

by Sara M. Mayo Vig

The drug addiction epidemic is one of the biggest health problems our country is facing. As criminal defense lawyers, we have a front row view of how this epidemic is affecting the community here in Sangamon County, Morgan County, Montgomery County, Macon County, Menard County and all of the surrounding area. People–our neighbors, friends, colleagues, siblings, cousins, parents, children–are dying or surrendering large portions of their lives to drug addiction every day. And while politicians wrangle and posture about whether a drug addiction is an actual illness that should be covered by health insurance (it is and should be), and how much marijuana someone has to have on their person before it becomes a felony (why should it ever be?), old, punitive laws remain on the books, and insufficient funds are directed to treatment facilities and programs for those affected by this epidemic. For our clients, this typically means that they have committed some illegal act in furtherance of their addiction or because they are actually under the influence at the time of the crime, and are looking at the very real possibility of an extended stay in the Illinois Department of Corrections.

Shipping people with a drug or alcohol addiction to the Department of Corrections, in addition to being costly, does not solve the problem. Labeling someone with a drug or alcohol addiction as a “felon” and making it that much harder to find employment and move forward with their lives upon their release does not help cure their illness, and in fact can make it worse.

Frequently, part of a criminal defense attorney’s job is to get everyone on board with what the best treatment alternatives are for the client. And by everyone, we mean everyone: the State’s Attorney, the judge, the parents, the spouse, the children, and (most importantly) the client himself. If the client is in Sangamon County, this can mean a sentence to Drug Court. It can mean a sentence to TASC Probation, First Offender Probation, or Second Chance Probation. It can mean an agreement that the client will engage in intensive drug counseling as part of another disposition.