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Criminal Sentencing in Illinois . Stephen L. Richards Deputy Defender OSAD/DPTA January 11, 2008. Range ? Probation? Consecutive? Extendable? Good-time credits? Treatment? Boot camp?. Sentencing Checklist.

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Criminal sentencing in illinois

Criminal Sentencing in Illinois

Stephen L. Richards

Deputy Defender

OSAD/DPTA

January 11, 2008


Sentencing checklist

  • Range ?

  • Probation?

  • Consecutive?

  • Extendable?

  • Good-time credits?

  • Treatment?

  • Boot camp?

Sentencing Checklist


Poked in the eye with a sharpe stick

Poked in the Eye with A Sharpe Stick


Sharpe overrules

Sharpe overrules:


People v hauschild 226 ill 2d 63 871 n e 2d 1 2007

People v. Hauschild, 226 Ill. 2d 63, 871 N.E.2d 1 (2007)


Common findings which make offenses nonprobationable

Common “findings” which make offenses nonprobationable


Does apprendi require these findings to be made by a jury

Does Apprendi require these findings to be made by a jury?


Presumption in favor of probation

Presumption is to be given unless: (where state law sets a presumptive sentence, a finding which allows the judge to go above the presumptive sentence violates

imprisonment needed to protect public or

Probation would deprecate the seriousness of the offense

Presumption in favor of probation


Probation and apprendi

  • Harris v. United States, 536 U.S. 545 2002): (where state law sets a presumptive sentence, a finding which allows the judge to go above the presumptive sentence violates

    Apprendi only applies to findings which raise the maximum, not to findings which raise the minimum

Probation and Apprendi


  • Count the justices: (where state law sets a presumptive sentence, a finding which allows the judge to go above the presumptive sentence violates

  • Majority: Kennedy, Scalia, O’Connor, Breyer, and Rehnquist (two missing)

  • Minority: Thomas, Stevens, Souter, and Ginsberg (all still on court)

But . . .


Thumbnail sketch of consecutive sentencing

  • Mandatory: (where state law sets a presumptive sentence, a finding which allows the judge to go above the presumptive sentence violates

    class 1, class X, first degree murder and severe

    bodily injury

    CSA, ACSA, PCSA

    Solicitation, heinous battery, agg bat senior citizen, class X drug case

    Bond on bond

Thumbnail Sketch of Consecutive sentencing


Thumbnail sketch of consecutive sentencing1

  • Discretionary: (where state law sets a presumptive sentence, a finding which allows the judge to go above the presumptive sentence violates

    • No single course of conduct

    • Needed to protect public

Thumbnail sketch of consecutive sentencing


Two rules for severe bodily injury

Two rules for severe bodily injury


What is sbi

  • Nick or cut on arm, caused by gunshot? class X felony, or class 1, not part of

  • Fractured big toe, caused by gunshot?

  • Injury to knee, “sharp pain,” caused by gunshot?

  • Grazed right cheek? Caused by gunshot?

What is SBI?


Single course of conduct

Single course of conduct?


Apprendi where are we

  • Not retroactive – class X felony, or class 1, not part of Schiro v. Summerlin, 542 U.S. 556 (2002)

  • Doesn’t apply to consecutive sentencing. People v. Carney, 196 Ill. 2d 518 (2001)

  • Doesn’t apply to good time credits – People v. Bell, 327 Ill. App. 3d 328

  • Doesn’t require indictment – People v. Thurow, 203 Ill. 2d 352

  • Doesn’t apply to recidivist cases.

  • Can be waived and/or harmless

Apprendi – Where are we?


New apprendi sc rule

  • (g) Proceedings When an Enhanced Sentence is Sought. When the death penalty is not being sought and the State intends, for the purpose of sentencing, to rely on one or more sentencing enhancement factors which are subject to the notice and proof requirements of section 111-3(c-5) of the Code of Criminal Procedure, the court may, within its discretion, conduct a unitary trial through verdict on the issue of guilt and on the issue of whether a sentencing enhancement factor exists. The court may also, within its discretion, upon motion of a party, conduct a bifurcated trial. In deciding whether to conduct such a bifurcated trial, the court must first hold a pretrial hearing to determine if proof of the sentencing enhancement factor is not relevant to the question of guilt or if undue prejudice outweighs the factor's probative value.

  • RULE 415(G)

New Apprendi SC rule


New apprendi instructions may have flaw

  • While it would have been preferable to have used a more precise instruction and verdict form in order to communicate to the jury that a single juror's “no” vote would prevent an affirmative verdict of brutal or heinous conduct, we find no abuse of discretion.People v. Starnes  374 Ill.App.3d 132, *142, 869 N.E.2d 834, **844, 311 Ill.Dec. 821, ***831 (Ill.App. 1 Dist.,2007)

New Apprendi instructions may have flaw


A judge s finding at a sentencing hearing

  • I find that the defendant deserves a harsh sentence. She has not spoken at this sentencing hearing and has not expressed remorse. She went to trial. Her witnesses perjured themselves. Her family disrupted this courtroom. If she is put on probation she may become pregnant. She is unemployed, she lives her boyfriend, she is HIV positive, and she is an unwed mother. She stole property, so she received compensation for committing this offense.

A judge’s finding at a sentencing hearing.


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