It is a quiet Friday morning at the Cook County Courthouse at 26th street and California. News cameras and media are surrounding the building, waiting for the much-anticipated sentencing of Jason Van Dyke, the first Chicago patrol officer to be convicted of murder in nearly 50 years.
A day that will go down in the history books for the city of Chicago. Protesters outside, chanting for justice, while the lawyers are awaiting the judge's ruling. As the Judge begins speaking about the tragic event for both sides, he hands out the sentence ‘’My findings are an appropriate sentence would be 81 months in the Illinois department of corrections, two years of mandatory supervised release.’’
The highly anticipated words being uttered from the judge for the murder of Laquan Mcdonald came as a shock to some, some even believed a slap on the wrist.
Van Dyke’s Conviction: First Degree murder vs. Second degree Murder
After a Jury trial in the Cook County criminal courthouse, Jason Van Dyke was found guilty of second–degree murder and 16 counts of aggravated battery with a firearm for the death of Laquan McDonald. Jason Van Dyke was originally charged with first-degree murder, but after his criminal defense attorneys requested jury instruction for a lesser included charge of second-degree murder, the jury ultimately came to the conclusion that Van Dyke was not guilty of First Degree Murder.
Van Dyke’s criminal lawyers request for a second-degree murder instruction would have a significant role in determining the sentence of Van Dyke going forward.
If convicted of First Degree Murder by the Cook County jury, Chicago Officer Van Dyke would be facing a minimum of 20 years to Life in prison and he would have to do 100% of the time he was sentenced to.
However, because Jason Van Dykes defense attorney asked for a second-degree murder instruction for the Laquan Mcdonald Chicago shooting, and the Jury came back with a verdict of guilt for only second-degree murder, Van Dyke was facing much less severe punishment.
Once Convicted of second-degree murder by the Cook County Jury, Chicago Officer Van Dyke was facing a minimum of 4 years to 15 years in prison and he would have to do 50% of the time he was sentenced to. For second degree murder, a defendant can also receive a period of probation.
Therefore, one the jury made the decision of Second Degree instead of First Degree Murder, Van Dyke went from the possibility of a minimum of 20 years in prison to be served at 100% to the possibility of probation or a minimum of 4 years at 50% time served. But what about the 16 counts of Aggravated Battery with a Firearm? Each count of Aggravated Battery with a Firearm carries a minimum of 6 years in prison to be served at 85% time served.
Aggravated battery with a firearm in Illinois
In Illinois, aggravated battery with a firearm is a Class X felony which carries a sentencing range of 6-30 years that must be served at 85%. After being convicted of 16 counts of Aggravated Battery with a Firearm for the shooting of Laquan Mcdonald, the prosecutor in the case was seeking a prison term of 96 years (16 counts of aggravated battery at a minimum of 6 years per count).
The reason the prosecutor was seeking 96 years is because, under Illinois law, the court could be required to impose consecutive sentences for aggravated battery. For those of you who don't know, generally in Cook County, the court will impose consecutive sentences where the defendants time will be combined and served together (instead of one after the other).
In Illinois, the court shall impose consecutive sentences if one of the offenses for which the defendant was convicted of a Class X felony and the defendant inflicted severe bodily harm. What that means is that under Illinois law the aggravated battery with a firearm count is to be sentenced to a consecutive term (one after another). So, how does someone who is facing 16 counts of a class X felony with a minimum of 6 years per count only receive 81 months?
How Illinois Law played a significant role in Van Dykes sentence
Jason Van Dyke was convicted of 16 counts of aggravated battery with a firearm and second-degree murder. Each count of aggravated battery carries a term of a minimum of 6 years in prison and the second-degree murder has a term of a minimum of 4 years in prison.
Therefore, based upon all the counts Van Dyke was convicted of for the Chicago shooting of Laquan Mcdonald, Van Dyke would have to serve roughly 100 years in prison. So, how did Van Dykes criminal defense attorneys manage to get Van Dyke to only serve roughly 6 years in prison?
One-Act One Crime principal
Under Illinois law, there is a legal principle that is used every day in the Cook County courtroom by Chicago defense attorneys to receive a lighter sentence. This principle is known as the One-Act, One-Crime Principle, which states that a defendant cannot be convicted of multiple offenses ‘’Carved from the same physical act.’’
The Cook County Court must determine: (1) whether the defendant committed multiple acts, and (2) if so, whether any of the charges are lesser-included offenses.
The Judge in Van Dyke’s case determined that although there were 16 separate shots, Van Dyke committed one act and therefore the 16 separate convictions cannot all stand because it is considered one overall act. If, however, Van Dyke had shot 16 separate people, those would be separate acts and not be subject to the One-Act, One-Crime principal.
The question then becomes, does Van Dyke face the Class 1 felony of second-degree murder or the higher class X felony for aggravated battery with a firearm? Which of the two charges should the judge sentence Van Dyke on?
How second-degree murder impacts the One-Act One Crime principal
Under Illinois Law, it is well known that if there are two separate charges that a defendant is convicted of by a judge or jury, the higher charge is the one that the Judge sentences the defendant on and the judge must vacate the lower class of the crimes.
For example, if you are charged with possession of a controlled substance and also charged with delivery of a controlled substance in Illinois, once convicted the court can only sentence you on the delivery of a controlled substance because it is a higher class of felony where more jail time is possible. That is because possessing the drugs and delivering the judge are one act and therefore considered one crime. If you deliver the drugs, you must always possess the drugs.
Van Dyke Sentenced to the lower class
So if Illinois Law requires that a judge sentence a defendant to the higher of the two class of felony offense for the one-act, one-crime principal, than why was Van Dyke convicted of only the lower class one felony (second degree murder -Class 1 Felony 4-15 years) instead of the class X felony (Aggravated Battery with a Firearm Class X Felony 6-30 years)?
Intent behind Second Degree murder
To be convicted of second-degree murder, a person’s actions must have been motivated by either a sudden and intense passion resulting from serious provocation or an actual but unreasonable belief that the circumstances required the use of deadly force as means of self-defense.
In Illinois, the legislator made the charge of second-degree murder a class one felony because, with second-degree murder, there is a lack of bad intent involved with the murder.
When an individual is charged with second-degree murder, the prosecutor will always be able to charge an additional count of aggravated battery with great bodily harm which is a class X felony. That is because, in order to murder someone, you have to commit a battery on them, and if they die, the defendant obviously commits great bodily harm.
Therefore, under the one Act, one Crime doctrine, a defendant’s conviction for second-degree murder would never hold up because they would always end up being charged with the higher class X felony of aggravated battery. If you commit second-degree murder, you also Commit a Battery and since the battery and murder is one act and a Battery is a higher class charge, the second-degree murder will always be vacated.
Therefore, the Courts have generally ruled that if a defendant could be sentenced on an Aggravated Battery where there was also a conviction for second-degree murder from the same act, that would render the second-degree murder statute ineffective.
Any time a defendant commits second-degree murder based upon a belief of self, defense the prosecutor can also charge and convict a defendant of Aggravated Battery and therefore, a Cook County prosecutor can just charge the higher class X to try and get a larger jail sentence. The courts have held in these situations, that if they choose to vacate the lower class, then the second-degree murder statute will be rendered completely useless because everyone will always be convicted of only the Aggravated Battery. If the legislator intended this to be the case, they would have never created a second-degree murder charge or would have changed the class of second-degree murder to a class X felony.
A Lawyers Perspective
What the Jason Van Dyke sentence shows from a legal perspective is that no law is perfect and there will always be holes in the judicial system. To the many that believe that the sentence is light, you must remember that these laws apply equally to every defendant in Cook County, Will County, Dupage County, and all of Illinois.
Van Dyke was convicted of Second-degree murder since the only stronger charge was aggravated battery with a firearm, the Judge merged the 16 counts into the second-degree murder count based upon Illinois Law.
After a lengthy hearing, where the defense attorney asked for probation (which is an allowable sentence) and the prosecutor asked for 96 years, the judge ultimately gave Van Dyke 81 months. Based on what the Judge was faced with, he could only give a maximum of 15 years in prison.
In a Nut Shell
To put it simply, if charged with second-degree murder and aggravated battery with a firearm, the Judge will merge the convictions for aggravated battery into second-degree murder because of the one-act, one-crime rule. The judge will then sentence the defendant based upon Illinois guidelines for second-degree murder ( 4-15 years at 50% with the possibility of probation).