Monday, December 7, 2009

New Illinois Anti Gun Law For Gangmembers Probably Won't Work

Does a new Illinois anti gang gun law really mean anything? It adds further penalties for the possession of a firearm by a street gang member without a Firearms Owner Identification Card. But, this charge can simply be plea bargained away. This blog will offer an inside view below of the actual plea bargaining process with the Prosecutor, actual examples of possible plea bargains, and how the new firearms law violation can be plea bargained away.

The new gun law would send gang members to prison for three to ten years. The killer whose crime spurred this new law was a gang member who was on probation for unlawful use of a weapon.

This law will be ineffective for several reasons. Most obviously, isn't this just another law for the gang banger to break? When he's off to do a drive by shooting, do a drug deal, or rob someone, does he care that he's carrying a firearm illegally? Illinois has some of the toughest anti gun laws that already don’t work. Chicago, of course, has no gun crime because of its tough firearms laws.

It also will not work because many of the charges under this law will probably be dismissed as part of an overall plea bargain package. It will simply be plea bargained away.

As a generality, the majority of criminals who are arrested on firearms charges usually have committed another crime or two at the same time. It's typically another felony. They are usually facing multiple charges of some type. A typical example of multiple charges might be the charge of violation of this law itself, plus a second charge or third charge of some kind such as possession of a stolen firearm, or robbery, or drug violations, etc., while they have the gun. They could be charged with one or more other felonies at the same time.

But, most cases are disposed of by plea bargain. If it weren't for plea bargains, the courts would be too clogged with criminal motions and trials to ever get anything else done. Forget civil matters time for them with all this criminal workload. So, the practical solution is plea bargaining. The Court encourages it.

The ultimate decision of whether or not to offer a plea bargain is based on the policy of the elected prosecuting official in the jurisdiction. It sometimes depends on the type of crime charged. Some Prosecutors are liberal with them, and some are not. Some of the policy is Judge driven. A person can even get a reduced charge plea bargain for premeditated murder. This new law violation certainly isn't on par with a capital offense.

Some Judges will complain to the Prosecutor if there is a very restrictive plea bargain policy by the Prosecutor or inclination of a particular Assistant Prosecutor. This clogs their docket. The Judge can't make the Prosecutor do anything because of the separation of powers (Judicial versus Executive). But the Judge has other ways to deal with a non responsive Prosecutor. Hypothetically, and in theory, the extreme, it could become harder for the Prosecutor to get favorable rulings, or even get adjournments. The Judge could apply subtle pressure. Of course, the Prosecutor would have a tough time convincing anyone that his "bad luck" in Court has anything to do with the lack of plea bargains being offered. Sometimes, some Judges will confide their feelings to the Prosecutor himself, his staff, trusted defense attorneys, or even other Prosecutors. His displeasure will become obvious to the Prosecutor in one way or another.

So, the plea bargain comes into play. There are plea bargains in probably 95% of all criminal cases. Here are a couple of hypotheticals for one hapless criminal charged under the new law.

Sentences for some violations of firearms laws similar to this, or where the gun is used or possessed during the commission of a crime are sometimes served before the sentence for the other crime even begins to be served. They are added to the sentence for the underlying crime.

The Illinois law specifically calls for mandatory time of at least three years, and no probation is available under a conviction for this law. That's only with a conviction, not just being charged. You don't go to prison by just being charged, at least not yet. However, there is no prohibition against the charge being plea bargained away.

Some states, like Michigan, mandate extra time on conviction for just the possession of a firearm during the commission of a felony. This frequently comes as a surprise to those non career lawbreakers charged with growing marijuana to sell, and have a hunting rifle or a shotgun that their Grandfather gave to them years somewhere in the home where the pot is grown. It's 2 years extra time there. However, when there are multiple offenses, this charge is usually plea bargained away there.

That's a good incentive for the bad guy to want a plea bargain. Who wants to add 3 to 10 years to a sentence? Here's how the plea bargain process works. These scenarios do not consider any possible sentence enhancements for repeat offenders. That's another issue entirely, but could be part of the process in a pretrial.

Let's say that the gang member is charged with an armed robbery, assault, and the mandatory time weapons charge from one crime spree. Let's say the case is solid, and the thug has no priors. The carrot dangled in front of the defendant is no mandatory time above that for the underlying offense.

A plea bargain is a win-win for the Prosecutor and the Defendant with multiple charges. The Prosecutor still gets a felony conviction with no trial, and the Defendant could avoid some jail time. The State or County saves thousands of dollars by not having a trial. It might surprise some to find that Trials are very expensive for the jurisdiction. But, the high cost of trial will not prevent the Prosecution from pursuing a case. They get a pay check whether they do a lot of trials or not. They are not afraid to go to trial.

Here's how a plea bargain could be negotiated where a Defendant is charged with something such as a violation of this anti gang law and other felonies such as an armed robbery and assault too, One scenario is no plea deal offered. This is usually reserved for people like the killer of the Chicago cop, or someone with an atrocious criminal record.

The plea bargain negotiated with the Prosecutor could be:

1. Plea on the nose to the armed robbery and assault, and the State dismisses the weapons charge.

2. Or, the offer might be to plea to the armed robbery and the State will dismiss the assault charge and the weapons charge. Depending on the type of assault, there could be a stiff jail time penalty for it.

3. There might be an offer called a "Proffer" from the Prosecutor for the defendant to "work with" the police," and all some or all charges are dismissed. This is not likely to happen in a violent crime charge, or where the defendant can’t make bond, or where the prosecutor does not want the defendant out of jail. It's more likely in a scenario where the underlying crime is not a violent crime, but something like a serious drug charge.

4. There's also the option of the plea deal to be for the defendant to testify against a co-defendant. If this is done, then the charges could be dismissed or reduced based on the testimony. The defendant could also be offered a "cap" or a limit on the minimum amount of time the defendant would have to serve before release or eligibility for early release from jail, or an early parole opportunity.

The bottom line is that the gang member charged with the enhanced weapons charge may not ever spend an extra day jailed as a result of it because that's the way the adversarial legal system works.

The law is in honor of Officer Alex Valdez, who was shot and killed in Chicago last June.

You can find the new law at:

No comments: