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Daniel M. Locallo: Proposed sentencing laws unwise

Chicago Police Superintendent Garry McCarthy speaks with CleopatrCowley-Pendletmother HadiyPendletbefore press conference Vivian GordHarsh Park Chicago Wednesday January 30 2013 where

Chicago Police Superintendent Garry McCarthy speaks with Cleopatra Cowley-Pendleton, mother of Hadiya Pendleton, before a press conference at Vivian Gordon Harsh Park in Chicago Wednesday January 30, 2013, where 15-year-old Hadiya Pendleton was shot and killed a day earlier. An $11,000 reward is now being offered for information leading to the arrest of Hadiya Pendleton's killer. | Jessica A. Koscielniak ~ Sun-Times

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Updated: March 24, 2013 6:08AM

Following the tragic death of Hadiya Pendleton last month, two young men were arrested for her murder: Michael Ward, 18, and Kenneth Williams, 20.

It is popular to criticize the judge who last year sentenced Ward to felony probation on a previous gun charge, given that Ward was still on probation — rather than in prison — at the time of Hadiya’s murder.

It is also popular for politicians to show they are tough on crime in the wake of Hadiya’s murder by backing legislation to increase the minimum mandatory prison time to three years from one year on a charge of aggravated unlawful use of a weapon. Defendants under the proposed statute would be required to serve 85 percent of their sentence.

Though popular, it is not the right thing to do in either circumstance.

Judge followed the law

Article 1, Section 11 of the Illinois Constitution provides, in part, that “all penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.”

Consistent with that provision of the Constitution, the state Legislature passed a statute (Illinois Revised Statues 730 ILCS 5/5-6.1 (a) and (2)) that sets guidelines for sentences of probation and conditional discharge for felonies. The statute states in part, “Except where specifically prohibited by other provisions of the Code, a Court shall impose a sentence of probation or conditional discharge upon an offender unless having regard to the nature and circumstances of the offense, and to the history, character and condition of the offender, the court is of the opinion the imprisonment or periodic imprisonment is necessary for the protection of the public or probation or conditional discharge would deprecate the seriousness of the offender’s conduct and would be inconsistent with the ends of justice.”

In sentencing Ward to probation, with added conditions, Judge Nicholas Ford did what the public expects of judges. He followed the law and acted in accordance with the Illinois Constitution. The judge looked at the nature of the offense and considered Ward’s criminal history, character and condition.

Ward was 17 at the time of the offense and it would be his first felony conviction. Besides sentencing him to probation, Ford added the conditions that he obtain his GED degree and spend 180 days in home confinement. If Ward had been 18, he would have been subject to a one-year minimum mandatory sentence.

We want judges to have the courage and the fortitude to do the right thing when it comes to sentencing defendants. Judge Ford did not have a crystal ball. The sentence of probation with conditions was appropriate.

Judges’ hands tied

Cook County State’s Attorney Anita Alvarez supports the legislation that calls for a three-year mandatory minimum sentence for persons convicted of aggravated unlawful use of a weapon. Moreover, her assistant state’s attorneys are to recommend jail time on every aggravated unlawful use of a weapon case. As a consequence, no assistant state’s attorney will consider the age of a defendant, the circumstances of the offense, the criminal background of a defendant, the occupation of a defendant, and the hardship such a prison sentence would be on their dependents in determining a recommendation to judges for what may be a proper sentence.

Alvarez has said the murder of Hadiya Pendleton “would not have been committed” because Michael Ward “would have been in prison — and she would still be alive.” There are numerous other scenarios in which “Hadiya would still be alive.”

One could say that if Ward had been born a year earlier, then he would have been 18 at the time of the gun offense and would have been subject to the mandatory one-year minimum sentence — and Hadiya would still be alive. One could say that if Ward had never been born, Hadiya would still be alive.

Even if Ward had been sentenced to prison, how do we know he would not have been released early? Unfortunately, it was the fate of Hadiya Pendleton and Michael Ward to cross paths on Jan. 29, 2013, and nothing will ever change that sad result.

Mandatory sentence unwise

Currently, if a person is convicted of a murder while using a handgun, the mandatory minimum sentence is 45 years in the Illinois Department of Corrections. This sentencing scheme has not reduced the number of murders in Chicago. Raising the mandatory minimum to three years on convictions for aggravated unlawful use of a weapon is not the right thing to do. Passing such a statute will increase the overcrowding in our jails and prisons, further diminish limited resources for our criminal justice system, increase rigidity and reduce flexibility in sentencing, and be inconsistent with both the Illinois Constitution and state statutes.

Albert Einstein’s statement, “What is right is not always popular and what is popular is not always right” is appropriate for this discussion.

Daniel M. Locallo is a retired Cook County judge and former assistant state’s attorney.

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