Drug Charges / First Time Criminal Charge Offenders, non-violent charges- What to do? Often, sadly, it depends on the County.

July 14th, 2011

As a criminal defense attorney and drug defense lawyer, I was handling a client’s criminal charge – a cannabis case, at a sentencing hearing out in Kendall County (Oswego) a short time ago when an experienced felony prosecutor hinted that perhaps the criminal defense lawyer (which would be me) was ineffective for not making an application on the criminal charges  to the TASC program. That accusation made this criminal defense attorney nearly fall out of my legal briefs, especially since it was being made in Kendall County.

     In Kendall county, there is no Drug Court program for drug addicts and their drug charges or drug addiction related criminal charges, despite the push for such drug treatment courts state and nation wide, and there is no Second Chance program for first-time offenders charged with criminal cases in Kendall County, also despite the push for one.

     Regarding the criminal drug charge discussed at the start here, when it came time to respond to the State’s argument before the Judge on behalf of my client, I pointed out that had my client’s drug charge, marijuana possession, been in Kane County, DeKalb County, DuPage County, Cook county, and all those counties near and around Kendall county, my client would have been offered and would have taken a Drug Court program. But instead he had the misfortune of tripping over Kendall County’s borders with his cannabis charge, where no such program exists despite proven effectiveness. Further, that if the TASC program (a drug counseling program pre-dating drug courts) had been so successful on its own, then why was there a need for the State Legislature of Illinois to create Drug Courts? Even worse, the State here wouldn’t offer TASC in the first place. Rather I had on my own directed my client some time before, and the client had wisely accepted the need, to attend Aurora Il’s Breaking Free program, and I had asked the client to call me every week on his progress. Fortunately, the client followed through and was able to present a good report from Aurora’s Breaking Free program. As a result, regarding the drug charges, again, cannabis, the Judge, who was quite familiar with Kane County’s successful drug court, sentenced my client to probation instead of the 3 years the Kendall county prosecutor had asked for – at about $24,000 tax payer dollars a year – for cannabis possession!

        Why Kendall county does not have a Drug Court is unfathomable, just by the example given above. At present, the Kane County Drug Court does a fantastic job. Attorneys, both private and public defenders, are made welcome at their staff meetings. The members of the staff listen, allow the attorneys to present our concerns and options. Kane County in particular has come up with creative options. Recently, two of my clients, who were failing, were given creative choices, and both are doing quite well now, although of course only time will tell. Kane County’s Drug Court staff, and its Judge, go out of their way to advocate for the result we all want – recovery from addiction. The Kane County Drug Court Judge and staff continue to hone their approach by furthering their knowledge through effective seminars and hands-on approaches and new techniques. Although I have less experience with DeKalb’s and DuPage Counties’ Drug Courts, I know enough to see the care involved. I have success stories in all three counties, and, sadly, some failures, but the effort is truly there. Kendall County? – well, their policy requires me to be creative as a criminal defense lawyer, and thankfully the judges understand treatment as being preferred over incarceration. The fact that Drug Court programs provide close supervision, require the probationer to report often for drug tests and updates, and be active in their own recovery at all times – you’d think Drug Courts would be right up Kendall County’s generally tough attitude toward addicted criminal defendants.

     A similar situation arises when dealing with first time offenders of non-violent crimes. Kane County had the highly effective Pre-Trial Diversion Program when I became an assistant public defender there in 1987, and later developed under expert hands into the Second Chance Program. DeKalb County has followed suit in its own way, and now DuPage County is looking into it in all earnest. Kendall County – not even on the radar screen despite requests to check out Kane County’s high success rate. And why is that? Let’s face it – we all can make a serious mistake, even a criminal mistake, once in our lives. And if it is a non-violent event by a first-timer, is it really in anyone’s best interest to weigh that type of person down with a criminal conviction for the rest of his or her life?

     Under the Second Chance concept, victims get restitution nearly right away in most cases. The accused, to be accepted into the program, must undergo scrutiny by members of society, and truly face remorse and make his or her apologies. Costs to the court system and the overload of cases and charges are lowered even as the accused gives to society by performing 100 to 200 community services hours at approved and monitored locations. If successful, after one to two years in the program, the accused sees his or her charge dismissed and becomes eligible for expungement of criminal charges right away. If the person messes up again – there is no second bite at the Second Chance program.

     So where is the down-side, Kendall County, whether it’s the victim, the accused, or society? Well, there isn’t one. The Second Chance program over the years has saved many of my clients’ college careers, and so many have gone on to do wonderful things with their lives, including heading charitable organizations and bringing relief to the impoverished in other countries as well as in the US. I would ask the leadership of Kendall County’s State’s Attorney’s Office – even outside the realm of criminal behavior, haven’t we all done something that has deeply disappointed a friend, colleague, or loved one in which we received a second chance to prove we were sorry?

     To first-time, non-violent offenders, and to the drug addict, as well as to their loved ones, you can see that where a crime happens is often more important than anything else in terms of your options. I hope that the example of the Kane County Drug Court, and its Second Chance program, and the Drug Courts in DuPage, DeKalb, Cook, and other counties, as well as their second chance programs, persuade Kendall County leadership to change their collective mind on this. After all – many of us have children who may, no matter how hard we try as parents to do right by our kids, while growing up through their teen years and early 20s, may make a mistake of a criminal nature, or be in need of fighting off an addiction.  

     Whose policies would you want your own children subjected to? Just a thought, Kendall County. The right answer is obvious.

Criminal Defense Lawyer and Drug Charges: Keeping the Mind focused on Hearts of Hope

May 11th, 2011

Dear Readers: Regarding drug charges and addiction, a link to Hearts of Hope is provided at the end of this blog entry.

     When the new criminal charge comes into my office, and the client has no interest in fighting a criminal drug charge, for instance, as a drug defense lawyer I tell the new criminal defense  client and his or her family that I do not want the client’s repeat business. Although this hardly seems effective as a business model, when it comes to defending drug cases and drug charges, it absolutely is the only model that makes sense. As a criminal defense lawyer, I always look over every page in the criminal case to look for anything and everything that will help my client charged in a criminal case. Motions to quash regarding an illegal search, errors in charging the criminal case, motions to dismiss the criminal charge – the client’s right to know all information and opportunities in his or her criminal case does not change simply because the client confides his or her drug or alcohol addiction to me. In fact, as a criminal defense lawyer, I know that I can often take advantage of such errors in criminal cases to my clients advantage, allowing them the freedon and opportunity to get drug treatment as opposed to incarceration without any hope for drug addiction treatment.

     Look, if a former drug client wants to hire me again, of course I’ll do it, and charge the legal fee. But what does this mean? It means that the client, despite the prior case or cases, has continued on in the world of drugs. Of course I presume each client innocent, as I should. But even if a person is innocent in fact, a new arrest may mean that the person has been traveling in circles that allows a false accusation to be charged. And if the person is in fact not innocent, then the addiction has continued. Whether the first case resulted in an outright not guilty, a motion to quash being granted, or some other form of dismissal, or if the person negotiated probation as a result –  with treatment – well, despite the successful surgery, the drug-addicted client has ripped the stitches wide open again because the addiction continues.

     In trying to improve my understanding of what people go through combating addiction, I had the pleasure of recently attending a Hearts of Hope meeting in Geneva, IL, in Kane County, a couple miles east of the Kane County Judicial Center. I cannot reveal names or even general details, because of promised confidentiality, but I can say that Hearts of Hope is one amazing organization, one that every criminal defense attorney in Aurora, Elgin, Batavia, Geneva, St. Charles, all of Kane County or from anywhere for that matter, should attend. Although open to recovering addicts, the focus seems to be on the parents of addicts. I saw the pain and frustration upon the faces there, and the strain and love in their voices. After all, these are the mothers and fathers who raised babies into toddlers, toddlers into teens.  And for each loving parent, it is so harshly devastating to witness that beautiful child succumb to addiction along with addiction’s impact on the addict’s life and health, and that of the loved ones around them.

     The session showed a helping hand of hope, a real heart of hope, a name this group well deserves. Each parent not only seeks comfort among those who understand because they too have been living the pain of addiction upon a child, but also each parent searches for answers in a realm where there just doesn’t seem to be a concrete answer. There are also parents there whose children have maintained recovery for a long time, providing an even bigger heart of hope. As a criminal defense attorney, I wanted to see, hear, and learn from such parents. Hearts of Hope provides a wealth of information and honest facts about real addiction histories. 

     It is clear that the age-old adage of the addict not only recognizing he or she is an addict, but also wanting help, remains true. Forcing someone without these basic steps just won’t work. But even with addicts receiving inpatient treatment for 3, 6, even more than 12 months, relapse happens, and sometimes quickly after release from inpatient treatment.  When I pressed for an answer why, what did the addicted person say was the reason to relapse, so hard and so soon? –  I found that there was no definitive answer to be given.

     In my March 18, 2011, post, I wrote about the need for the drug addict to be genuinely scared before treatment will stand a chance to work. Indeed even though an addict has seen death of friends due to illegal drugs, or loss of child custody, loss of employment, college, career, a place to live, the trust of family, or may have suffered a near-death overdose themselves – far too often, none of what would keep the rest of us straight seems to be enough in the face of addiction, especially heroin. It’s as though, when relapse happens, it’s because the addict’s mind at the point of relapse has emptied of every other thought, and the logical reasons not to relapse are at least muted. The person simply wants the drug. Maybe there’s a plan, doomed form the start, to sneak a hit one more time, or a plot to work around drug testing. But such plots and plans always fail at some point. Always.

     I still could be wrong, but my gathering with Hearts of Hope strengthened my belief that the addict seeking recovery has to have made up his or her mind to be scared of the addiction every single day. To make up the decision to be scared of the drug every single moment of the day. In this way, a decision is made, and made every day, before temptation arises and before the inner voice to use begins to talk. Is this the answer, or even part of the answer? I wish I knew for sure. I wish that each and every parent could have his or her son or daughter back the way they were before addiction took over the child’s life. I am convinced, however, that Hearts of Hope is invaluable for parents seeking personal relief from their own pain, for persons seeking information, as the people there provide a wealth of valuable information. And it’s also a valuable group for the recovered addict and the parents of the recovered addict to attend, to provide their own Hearts of Hope and strengthen their own continuing recovery.

     In our criminal courts, no lawyer or judge should deny a defendant his or her statutory or constitutional rights, nor provide each person anything short of  full information and options on any given case. To do otherwise not only would violate the principles lawyers and judges are sworn by oath to uphold upon licensing, but also would serve to cause an addict, typically suspicious of authority to begin with, to deeply mistrust or turn away from a court system if that system’s honesty is suspect. However, that certainly does not mean treatment is inconsistent with criminal defense. Even if litigation is the addicted client’s choice, with an eye toward victory for that case, the criminal defense attorney should provide the whole truth, that victory will be for that case only, and not for the rest of the addict’s life, unless recovery from addiction is fought for and won.

     I hope each of you who have honored me by reading this blog entry will also link (provided below) to the Hearts of Hope web site, and then pass it on to your friends and family. Sadly, I think we all know someone, or know someone who knows someone, who is hurting because of addiction. Hearts of Hope – it’s not the only organization out there, but it is special and powerful, and will in turn link you to other, helpful organizations. The cost?

    Hearts of Hope is both free and priceless. Please click on –  http://www.heartsofhope.net/

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

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?

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 krfarnham@gmail.com / 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.
Read more: http://www.dailyherald.com/article/20110407/news/704079919/#ixzz1Iwi7Yi39

Domestic Battery Criminal Charges in Aurora, Elgin, Batavia, Geneva, St. Charles – What’s going on?

March 25th, 2011

If you have ever stopped by a criminal court room set aside for domestic battery criminal charges, the crowd from day to day may make you wonder whether half of the citizenry is beating up the other half, whether it’s in Aurora, Elgin, Batavia, St. Charles, Geneva or any other Illinois town. As a criminal defense attorney, I ask, What’s going on?

     Let me give you a suggested explanation by example of a real criminal case invovling such a criminal charge of domestic battery and another criminal charge growing out of it that should surprise you:

     A husband and wife work at the same business that covers DeKalb, DuPage, Kendall and Kane counties. A big busniess. Turns out he’s having an affair and the wife finds out about it. At an office party in a public setting, he starts dancing with the other woman in front of all their co-workers. The wife, understandably upset, runs up to her husband waltzing with the other woman, kicks her husband in the shin one time, and runs away in tears. The husband runs after his wife to bare his soulful apologies and to seek reconciliation, which the husband and wife so begin to reconcile. Regardless, the police are called and she’s arrested – for domestic battery in which, if found guilty, she cannot get supervision even though she has no criminal history at all. She must be convicted, pay a hefty fine, face up to a year in county jail, and spend 26 straight weeks getting domestic violence counseling.  But on trial day, since the prosecution insisted on going forward despite these facts, the husband, with a good dose of guilt and now reconciled with his wife, decides not to appear. Now he’s charged with contempt of court and prosecuted for failing to appear – and on and on.

     I know this case. It’s real. I represented the husband.  

     Here’s what’s true: Abuse of women by a boyfriend or husband went on for far too long without getting the serious attention such crimes deserved. The abused woman often suffers immeasurably, succumbing not only to obvious and horrific physical damage, but psychological damage as well. There can be no denying that at all. Specialized domestic violence courts, as I recall their basis, were created entirely on this very real issue and need.  The intended goal was and remains  laudable. To provide not just the prosecutorial attention, but also to provide counseling services to help end the cycle of the physical as well as the related psychological abuse against women. But something happened that I believe has diverted such courts from these laudable goals. 

     The Illinois domestic violence statute covers every aspect of the phrase “family member” that a person can think of. Not just between spouses as well as people dating for at least a minimal time, but it also includes relationships between any “family member” via blood or marriage. Siblings and step-siblings come under this law, possibly cousins, too. Parents and their kids and step-children. Regardless of the domestic relationship, any unwanted touching, whether it causes bodily harm or not, are all under the same Illinois domestic violence statute and arrive at the court room that was supposed to help address abuse against women.

    As a result, fights between siblings are domestic batteries no matter how benign or serious. A substance-abusing, often-suspended-from-school teen can call the police and make claims against Mom or Dad who have been struggling for years with their child’s bad behavior. Then there are the claims that a man has bitten his girlfriend hard in the face, also punched her several times in the face hard several times, hit her over the head with a heavy object, run her over not once but three times with a car – and in each case the woman has not one injury on her, is drunk at the time even as the man is calm and is actually the one bearing an injury – and he gets arrested anyway. These are fact patterns in domestic violence cases from Aurora, Elgin, Geneva, Batavia, and St. Charles that I’ve handled over the years. 

     To make matters worse, police understandably have real fears when called to a scene of reported domestic violence. The officers do not know what they’ll run into. Perhaps they fear being attacked themselves. They fear making the wrong call if they make no arrest and then they’ll read about it in the newspaper if something bad happens afterwards, so they err on the side of arrest, contrary to exercising discretion based on what they see with their own eyes. 

     In our domestic violence courtrooms, there are of course abused women, real victims, that need special prosecutorial and counseling attention. But as a result of the above, I believe, they and their cases get buried beneath mountains of these other types of cases day after day. Resources get diluted. An already strained prosecution staff has less time to provide services. In many respects, it is the broad scope of the domestic violence statute itself that does a disservice to those women in real need who were the original reasons why the statute was passed in the first place.

     I do not claim to have the perfect solution to this situation but it seems that a few changes would make basic sense. First, do not include fights between siblings, cousins, nieces and nephews among those cases covered by the domestic violence statute. The same holds true between parents and their kids. While such batteries can of course be serious, their dynamics differ from from those suffered by abused women. These other cases can readily be handled not just by the regular misdemeanor and felony criminal courts but also by our abuse and neglect courts when it comes to abused children;  in fact, that’s why such abuse and neglect courts exist, with their own specialized services for those situations. These other cases do not need to use the victim counseling as well as counseling for the offender that are unique to cases of abuse against women.

    And are we to have no logic applied here? If someone makes a claim that is simply not plausible under the given facts, can there be no discretion applied by the police or by the prosecution? Certainly there are gray areas that need to be decided on the side of caution. However, arresting and prosecuting a man upon a claim that he bit someone hard in the face 5 minutes ago, and there are in fact no injuries present of any kind –  is an arrest and prosecution that serves only lawyers, who can then charge that man a fee for legal representation. And I did, discounted given the facts, of course!

     Now, perhaps, you have the answer as to why our domestic violence courts are so crowded day to day, and why such dockets are crowded with cases having nothing to do with common sense or abuse against women.    

    Ending with the beginning – the woman who kicked her cheating man one time in the shin finally had her case dropped after her husband continued to refuse to testify against her. But he did have to go to hearing on the contempt case against him. When I asked the judge whether such a man, after what he had done in public, should now be held in contempt for not wanting to give his wife a criminal conviction, the Judge smiled and shook his head. Four hours of community service, that’s it, the Judge ordered, but for behaving like a jerk at the office party, not for refusing to come to court.