Archive for April, 2011

Aurora, Oh Aurora! Elgin, Oh, Elgin! Everything’s fine with Criminal Charges and the Law

Monday, April 25th, 2011

To this criminal defense lawyer, it seems that not soon after my criminal law post regarding State Rep. Keith Farnham’s “new” idea about requiring defendant’s to reimburse the police for the cost of the defendant’s arrest, that Elgin continues to go further and further with the same idea. Now, if you are arrested for the criminal charge of DUI, in addition to other traffic stops and criminal arrests, you’ll have to pay the city of Elgin $500 for your car’s tow, as well as for the cost of the car’s impoundment itself by the private company. This is the case even if there is a perfectly fine driver there to drive the car home making the tow unnecessary, but also in cases in which a person is found not guilty of the crime, and even if there is a finding of no probable cause for the crime. This is the same process the city of  Aurora, Il, has been using for years. The officials know that since the fine is “only” $500, that such persons subject to the fine will not hire a lawyer to defend against the fee charged because lawyers understandably have to charge more than that to wait around and conduct a prepared trial. What a racket.

     It is this criminal lawyer’s opinion that this is not constitutional. It fails to afford a person reasonable due process. It presumes people guilty first by holding the car or a posted $500 hostage until the hearing, in which the administrative judge is someone picked by and paid for by the same municipality that seeks to gain money through this process. The Elgin government officials even say this – that their goal is to raise 1.5 million dollars a year in revenue under this sham process.

     Cities like Aurora, IL and Elgin, IL seem to want to solve their financial woes by increasing fines and costs in criminal cases in never-ending ways and amounts, and by creating new ones, not realizing that there comes a time when the stone is producing no more water, and that it costs more to chase after unpaid fines than what is actually collected.

     It is time for the criminal defense bar in Kane County to consider whether these hearings actually provide an opportunity for a deposition in a criminal case that they might not ordinarily have, and turn the tables on the government by actually making them work, take their time and personnel, and provide recorded testimony of the hearings, as well as any video and-or audio tapes of the DUI or other traffic arrest. Such legal fee can be incorporated into the overall DUI fees for representation in the criminal case itself, and make it affordable, and reasonable, for both the attorney and the client.

    At least to this criminal defense attorney, this is making sense, especially in cases involving driving under the influence cases. DUIs – it seems now more than ever government officials wish to make money rather than reduce the numbers of people driving under the influence.

Regarding drug charge cases, are Illinois Legislators Thinking Things Through?

Friday, April 8th, 2011

Dear Readers:   At the end of this post is an article from the front page of the Daily Herald (4/8/2011) covering Rep. Keith Farnham’s (Elgin) and State Sen. Michael Noland’s proposed legislation to fine a person convicted of a criminal drug offense that would go to “cover the police’s [sic] cost to bust them.” After you read my blog here I would ask you to consider contacting State Representative Farnham at / 847-841-7130 and State Senator Michael Noland at 847-214-8864 – these are approved contacts per their web pages. At all times, please be polite and professional in your messages.

     Rep. Farnham was quoted in the Daily Herald article as claiming that such a fine would help better keep our neighborhoods safe and further discourage drug sales. The most disturbing thing about this legislation is that it was apparently approved by House Legislators without a single “no” vote.

      My claim here is that this proposed legislation shows a complete lack of understanding about why sellers sell, the addiction of users, and especially of all the significant existing money fines already in place. Further, it is demonstrative of a system in which our legislators will vote for any bill that dresses itself up as “anti-crime” or about “safe neighborhoods” without actually thinking things through.

     As to deterrent impact, anyone with an ounce of experience or willingness to learn about drug addiction will know that the last thing a drug addict will think about when seeking out drugs is deciding not to use drugs because, if arrested and convicted, he or she will have yet another fine to pay. Drug addicts, and anyone thinking about committing a crime, know jail or prison is a possibility if caught. Yet another fine to pay is going to be a deterrent beyond the threat of prison? 

     If anything, fines taken from drug addicts and especially sellers, in criminal cases, ought to go to drug TREATMENT programs, not law enforcement which, by the way, already benefits from seizing drug-seller money, cars, homes, and other property. The sums and value collected from such seizures are more often quite significant. 

     As a citizen and parent, I’m all for law enforcement. I respect who police are, what they represent, and the risks they may face during their work days. But who doesn’t already know that the police get paid whether they are working a tough murder case or are at their desks on a slow day? There really is no reimbursement that officers aren’t getting paid via salary already. If anything it sure would be interesting to see how such money, if any is collected, would be distributed.

     And what about whether money would be collected from such a fine? Here are the existing facts that one would hope Farnham, Noland, and all the other legislators in Springfield should know about before deciding not to challenge the proposed legislation: 

         * Even a misdemeanant marijuana possessor already faces a $750 fine for drug paraphernalia, plus fines and costs on the marijuana possession itself.

         * When you get to controlled substances, even the lowest Class 4 felony possession amounts, there are already these fines in place: $500 drug assessment (which, ironically considering Farnham and Noland’s legislation, already goes to the State supposedly for law enforcement); reimbursement fines to the crime lab for the cost of processing the drug test; $212 fine for the DNA sample for felons who have pleaded or were found guilty; probation fees of up to $50 per month for at least 2 years ($1,200 minimum); separate additional fines and costs that range anywhere from $300 to $750 dollars. Ten percent of bond posted, if posted, automatically goes to the clerk, even if a person is found not guilty. There are other costs that include drug trauma costs, spinal lab costs, and so on and so on. This is in addition to the cost people on probation pay for mandated drug evaluations ($100 to $200), counseling ($300 to $900 outpatient; $13,000 per month for inpatient private pay), and the cost of drug testing ($60 each time for each positive test), as well as as the requirement of public service hours.

       * Here’s what additionally happens to money assessed against people convicted of selling illegal drugs. The drug assessment fee goes up, to $1,000 to $5,000 depending on the amount of drugs involved; plus a significant fine that is based on the weight of the drugs ( to the benefit of law enforcement already). Then there are existing forfeitures of cars and homes and any cashed seized (again to the benefit of law enforcement). And what about prison? Unless the drug amount sold is under 5 grams and the convicted seller has no prior, serious felonies in the past ten years, such a person cannot get probation and is heading to prison at a cost of about $27,000 per year to the tax payers of Illinois. So – how are these fines ever going to be paid?

     Which leads to my next point:

     It costs tax payer money to pursue people who have violated their terms of probation. Let’s say a drug user is placed on probation, with all these fines and costs. And let’s say the person does well on probation, the drug drops all are clean, and the end of probation nears. But he has been unable to pay fines and costs. The prosecution will then file a petition to revoke so the court has jurisdiction even after the probation end date passes. It doesn’t matter how poor or how recovered a drug addict on probation may be, the state prosecutes the failure to pay for each and every case. Most of these cases are handled by the county public defenders office, another use of a tax payer resource along with the state’s attorney’s office. The cases stay in court and get continued and continued as the probationer tries to pay all of his or her assessed fees. This of course causes more cases to remain on the already packed court dockets. Finally, the matter is set for hearing in which the State not only has to show nonpayment, but also that the person had the ability to pay and chose not to. Most often the person could not financially make complete payment, there is a no-wilfull-failure-to-pay finding, and the matter can be continued up to two years for payment only, or be ordered referred to collections which involves more tax payer money via lawyers and court rooms, or a judgment is entered against the person, impacting credit rating, and the whole thing was a journey that accomplished very little or nothing at a cost of resources used far exceeding the amount of the fine in the first place.

     As to convicted drug sellers, most often going to prison, after property seizure and the already assessed fines and costs, the notion of the person paying back such costs and the cost of pursuing nonpayment by someone in prison for 3 actual years or more is ludicrous, as well as is the notion of deterrence for this fine.

     The news on the proposed legislation does not say what the new fine amount would be.  But the obvious question as to deterrence is: If a person convicted of a drug possession charge is already assessed to pay $4,000 to $5,000 in total costs, and a person convicted of selling drugs is already assessed $5,000 to $10,000 or more, plus forfeiture of money, car, or home seized, how in the world is yet an additional fine along with the many others on the books going to provide any shred of deterrence, even if a drug addict or drug seller would think of such a thing as a deterrent? And how does it deter the cost of pursuing the cost of prosecution of nonpayment?

     Isn’t the answer obvious?

     Over the last 15 years in dealing with drug addicts, there has been a thankful move towards drug rehabilitation through TASC legislation and the newer drug courts. In these challenging times with public finances at a low ebb, treatment centers are under threat of closing, pushing more people toward overburdened jail and prison systems. Farnham and Noland’s proposed legislation, born of, at best, not thinking things through, is contrary to the latest trends that have shown rehabilitation to work, not perfectly of course, but significantly. The thought that users or sellers would be deterred by an additional fine under the current realities of court punishment and existing fines is fantasy. The notion of funneling more money to law enforcement (in addition to the money and other property they seize through forfeiture as well as drug assessments discussed above) rather than to treatment centers is baffling. And the thought that there would be any real, notable collection of money from drug users trying to recover and from sellers locked in prison, especially in light of the cost in collecting such fees, is, again, squarely in the realm of fantasy.

     If our legislators continue to fall all over themselves to approve Farnham and Noland’s legislation, it is going to result in yet another box to check on court orders that already have at least 5 to 10 boxes to check regarding fines, each printed in eye-straining font to make room because there are already so many fines and costs on the forms.

     Another burden on the prosecutors, public defenders, and courts (e.g.  – tax payers) to chase fines down.

     Another proclamation of deterrence and being tough on crime to puff a chest out during campaign season.

     The one hope I see is this: so many of the readers’ blogs in response to the Daily Herald article are against Farnham and Noland’s legislation – in fact all of the 37 that were posted when I read them were against the legislation. While I’m not ordinarily a big fan of newspaper article response blogs, because they often turn angry and attacking, it is interesting to note that in this case the bloggers show more insight on this topic when it comes to Farnham and Noland’s claims.

     I cannot help but ask why Farnham and Noland are singling out drug cases with their legislation and not theft, forgery, sexual assault, arson, domestic violence, weapons offenses, or murder, along with any other crime. Certainly all of these examples of crime use police time, equipment and resources, often more so than drug cases. Is there something about an addict possessing drugs that needs this additional fine as a deterrent more so than a case of sexual assault?  More than anything, this question, I believe, goes to the not-thinking-things-through problem with Farnham and Noland’s legislation, and all the legislators who let this bill pass without a single no vote.

    If there is any criminal case, especially a felony or even a first-time DUI misdemeanor case, that isn’t already packed with court-ordered fines and costs, I’d really like to know because it simply does not exist.  As a criminal defense attorney in Kane, DeKalb, DuPage, and Kendall Counties, often in Aurora and Elgin, where this legislation appears to be coming out of, I perhaps should be happy with such new legislation because I’d have more petitions to revoke to represent people on. But I’m not happy about it.  I’m not for things that obviously do not even begin to accomplish what they say they will.  

    And now – here’s the article for you to read for yourself, to decide for yourself. Whether you’re for or against the legislation, please contact Farnham and Noland, and all the other representatives who let this legislation pass the House without challenge.  I hope people out there contact Farnham and Noland in droves and, at a minimum, educate them. Make them see one of the typical court orders in a drug possession case and a drug selling case. Make them see the need for additional  funding for treatment.

SPRINGFIELD — State lawmakers are advancing a new proposal that could force people convicted on marijuana and meth charges to pay fines to cover the police’s cost to bust them. Sponsored by Rep. Keith Farnham, an Elgin Democrat, the plan was approved by the Illinois House this week. The idea came from Elgin police officer Chris Jensen and Lt. Jeff Adam, who has suggested taxpayers shouldn’t have to pay for the costs of others’ illegal activities. “These fines will be another tool to discourage the sale of drugs and will help keep our streets and communities safe,” Farnham said. Another Farnham plan, to ask for federal money for a statewide anti-gang program, also was approved by the House. Both were approved without a single “no” vote on the House floor. Both move to the Senate now, for further debate. Sen. Mike Noland, an Elgin Democrat, will sponsor the reimbursement proposal in the Senate.
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