Commentary: Van Dyke case points to need for sentencing reform

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The police dash-cam video of the shooting of Laquan McDonald and subsequent investigation establish these facts: A white police officer shot a black youth 16 times in the back. The youth, carrying a three-inch knife, was walking away from the officer when the first shot was fired. The officer continued firing for 13 seconds as the youth lay motionless in the street, dead or dying, posing no threat to anyone.

The evidence appears to foreclose a viable claim of self-defense, which would require Jason Van Dyke, the officer who fired the shots, to show that what he did was justified by reasonable fear of death or great bodily harm. If he had fired one or two shots — or even a few shots aimed at McDonald’s limbs rather than his torso — Van Dyke might have argued that he acted reasonably, contending perhaps that he mistook McDonald’s knife for a firearm or believed that McDonald was within charging distance and therefore posed a serious threat. But it is hard to construe 16 shots in the back as self-defense.

So, if self-defense is off the table, what is Van Dyke facing?

First-degree murder, the crime with which he is charged, requires the prosecution to prove not that he intended to commit murder but only that he opened fire without lawful justification, knowing that doing so created a strong probability of death or great bodily harm.

A first-degree murder conviction normally carries a prison sentence of 20 to 60 years, but a murder committed with a firearm carries a 25-year mandatory enhancement, increasing the sentencing range to 45 to 85 years. Additionally, under the state’s truth-in-sentencing law, defendants convicted of first-degree murder are ineligible for early release based on good behavior; they must serve 100 percent of their sentences.

Thus, if convicted of first-degree murder, and assuming that the conviction withstood appeals, Van Dyke, now in his late 30s, would be in prison into at least his early 80s — a rather draconian punishment for a man with no criminal record, who appears to pose no future threat to public safety, and who, in a dozen years of patrolling some of Chicago’s meanest streets, never fired a shot in the line of duty until he killed McDonald on October 20, 2014.

Although the elements of first-degree murder appear to be present, it nonetheless is conceivable that Van Dyke could be convicted of the lesser offense of second-degree murder. Under Illinois law, a second-degree murder conviction would be warranted if Van Dyke could make a persuasive case that he acted either “under a sudden and intense passion resulting from serious provocation” or with the “unreasonable belief” that the circumstances of his encounter with McDonald were such that, if they existed, would justify the force he used.

The sentencing range for second-degree murder is probation to 20 years in prison; oddly, even though probation is an option, the minimum prison sentence is four years. There is no firearm enhancement for second-degree murder, and the time behind bars could be halved with day-for-day good-conduct credit, i.e. a day off the sentence for each day served with good behavior. Other behavioral incentives could reduce the sentence by another six months.

So, if sentenced to the maximum for second-degree murder, Van Dyke would likely serve nine and a half years behind bars — only 21 percent of the time he would serve if sentenced to the minimum for first-degree murder with a firearm.

That there is no middle ground renders the law, in the immortal words of Mr. Bumble in Oliver Twist, “a ass” — and sorely in need of reform to give judges appropriate discretion to tailor sentences to fit the circumstances of individual crimes and defendants.

One major problem with the rigidity of the current sentencing scheme is that it fosters something less than intellectual candor on the part of trial judges. Assume, for example, that the evidence justifies convicting Van Dyke of first-degree murder, while compassion favors something less than the mandated minimum sentence.

Not to cast aspersions on Cook County Circuit Court Judge Vincent M. Gaughan, to whom the Van Dyke case has been assigned, but the prospect of sending a man like Van Dyke to prison for 45 years might weigh heavily on the conscience of any judge, encouraging him or her to rationalize that the defendant is guilty only of second-degree murder.

Van Dyke could choose to have a jury trial, but is unlikely to do that because a jury’s only job would be to decide guilt or innocence and, unlike a judge, would not be aware of the sentencing ramifications. In a less high-profile case, a plea agreement would be a likely resolution, but that probably is politically unrealistic in this case.

The law should not, as it presently does, put judges in the untenable position of having to stretch credulity or spin fiction in order to fashion appropriate sentences.

That is why, in the interest of compassion and intellectual honesty, the Illinois General Assembly should repeal firearm enhancements and truth-in-sentencing.

Although Van Dyke could not benefit from repeal, since it would not be retroactive, his circumstances make the case for reform — the primary beneficiaries of which would be neither white police officers nor whites in general, but the minority defendants who comprise more than two-thirds of some 5,500 convicted murderers currently in Illinois prisons.

While it might be argued that Van Dyke deserves a sentence of less than 10 or more than 45 years, such stark alternatives make no sense. When imposing sentences in murder cases, judges should have discretion to take into account the purposes of incarceration, of which — setting aside rehabilitation, which lawmakers effectively abandoned in recent years — there are three: incapacitation of dangerous criminals, deterrence of other criminals from committing similar crimes, and retribution for crimes committed.

Deterrence of unjustified fatal force by police officers, moreover, surely would be as well served by a short sentence as a long one, leaving retribution as the sole pertinent purpose of sending Van Dyke to prison.

Therein lies the rub: Reasonable retribution presently is irrelevant, judicial discretion having been largely usurped by the General Assembly.

The rationale behind the firearm enhancement was deterrence of firearm murders, but in that it has failed — witness two centuries’ experience leaving no doubt that long sentences are not an effective deterrent and, anecdotally, the guns of August, Chicago-style, 2016; no less an authority than the National Institute of Justice attests that the likelihood of apprehension “is a vastly more effective deterrent than even draconian punishment.”

Truth-in-sentencing was marketed as a means of incapacitation, and has superficial appeal in that regard, owing to the fact that criminals in prison cannot commit crimes on the streets — but the incapacitation effect comes into play only upon completion of what would have been the duration of any given sentence absent truth-in-sentencing.

Without either the firearm enhancement or truth-in-sentencing, a defendant convicted of first-degree murder in Illinois would serve up to 30 years — incapacitating even teenage killers tried as adults into their 40s.

Sentences of such duration protect public safety to a practical extent. In a nationwide study of prisoners released in 1994, the year before truth-in-sentencing became law in Illinois, the Bureau of Justice Statistics found that released prisoners with the lowest re-arrest rates were those who had been in prison for homicide.

There are, to be sure, some killers who should be incapacitated for life — John Wayne Gacy comes to mind — but current Illinois law makes life without parole a sentencing option when certain factors are present. Repeal of the firearm enhancements and truth-in-sentencing would not change that.

Another salient argument for repeal that is worthy of legislative focus is cost. The taxpayer-borne tab for Illinois prisons exceeds $38,000 per prisoner per year.

The aggregate costs are difficult to estimate, since some judges undoubtedly adjust their sentences downward to reduce the impact of the extended-incarceration laws, without which, a gun murderer who might have received a sentence of 60 years — and served half that — receives instead a sentence of 45 years, allowing for the firearm enhancement and truth-in-sentencing.

More than 5,000 prisoners are currently doing time for murder. If, on average, each of their sentences had been extended five years by the sentence-enhancing measures, the cost to taxpayers would be roughly $1 billion; an increase of 15 years would cost $3 billion, 25 years $5 billion, and so on.

Whatever the tab, it brings to mind the late Senator Everett M. Dirksen’s memorable observation: “A billion here, a billion there, pretty soon you’re talking real money.”

Rob Warden is the co-director of Injustice Watch.