* The Chicago Daily Law Bulletin just reposted an October 10, 2018 op-ed by Cook County assistant public defender David C. Holland claiming that Chicago police officer Jason Van Dyke could wind up serving as many as 96 years in prison due to a “quirk” in Illinois statutes and case law.
We’ll get to the column after this news report from ABC 7…
Jason Van Dyke, the Chicago police officer convicted of murdering 17-year-old Laquan McDonald, was sentenced to 81 months, or 6 years and 9 months, in prison and two years mandatory supervised release. […]
Van Dyke was found guilty of second-degree murder and 16 counts of aggravated battery.
Judge Vincent Gaughan said he considered the most serious charge to be the second degree murder charge, not the 16 aggravated battery charges, and made his sentencing decision on that murder charge.
The special prosecutor argued that aggravated battery with firearm was the more serious of the crimes of which Van Dyke is convicted and should be sentenced consecutively on those charges instead of the second degree murder charge, which carries a lesser sentence.
* According to Holland’s October op-ed, the special prosecutor was right…
Second-degree murder, on the other hand, is punishable anywhere from probation to 20 years in prison with possible release after 10 years. Moreover, committing second-degree murder with a firearm does not require an extra sentence of 25 years to natural life as a first-degree murder does. […]
By a quirk of Illinois law, Van Dyke may face a mandatory minimum sentence as high as 96 years.
This is because the prosecution charged each gunshot as a separate offense of aggravated battery with a firearm, and each shot holds a minimum sentence of six years in prison.
Illinois’ sentencing statute, however, requires that the sentence for any Class X felony (such as aggravated battery with a firearm) that causes “severe bodily injury” be served one after the next (consecutively).
Thus, if Judge Gaughan finds that each shot caused severe bodily injury, he would be required to sentence Van Dyke to a minimum of 96 years in prison (16 multiplied by six). If the judge finds that only 10 of the 16 shots severely injured McDonald, the minimum sentence would be 60 years, and so forth.
Moreover, even though the shooting and the murder are the same physical act, Illinois case law requires Judge Gaughan to sentence Van Dyke on the aggravated battery charges, not the second-degree murder, on the counterinstinctual holding that aggravated battery with a firearm is more “serious” than second-degree murder (even when murder is the ultimate result of the gunshot wounds).
Judge Gaughan, instead, didn’t even sentence Van Dyke on the aggravated battery with a firearm charges, rolling them into the 2nd degree murder charge.
* Here’s the case law that Holland pointed to. From the Illinois Supreme Court’s 2004 opinion in People v. Lee…
It is common sense that the legislature would provide greater punishment for crimes it deems more serious. Here, the legislature has classified aggravated battery with a firearm as a Class X felony with a possible sentence of 6 to 30 years. Second degree murder is a Class 1 felony with a possible sentence of 4 to 20 years. Therefore, in line with Duszkewycz, the second degree murder conviction, as the less serious offense, should have been vacated. […]
In sum, the appellate court erred in concluding that the more serious offense in this case was second degree murder simply because the court opted to impose a greater prison sentence on that count. Instead, aggravated battery with a firearm is the more serious offense, and defendant’s conviction for second degree murder must be vacated.
* Judge Gaughan apparently agreed with the dissent in that case…
Given this reality, it is simply impossible to say categorically, as the majority does, that all aggravated batteries are more serious than all second degree murders as a matter of law. Indeed, had the legislature felt this way, it would have created mutually exclusive sentencing ranges, with the maximum sentence for second degree murder falling somewhere below the minimum limit for aggravated battery with a firearm. But this is not what the legislature did. On the contrary, it created broad and largely overlapping sentencing ranges, leaving it to the trial court’s discretion to evaluate and ascertain the seriousness of these and other offenses on a case-by-case basis. Accordingly, I would look to the sentences actually imposed in a given case when identifying the most serious offense. […]
The bottom line is that, in this case, the trial court clearly believed that this particular second degree murder was more serious than this particular aggravated battery with a firearm. The legislature specifically allowed for this result, and I see no compelling reason to set it aside. I therefore dissent on this point.
Some thought should be given to appealing Van Dyke’s sentence.