Van Dyke’s controversial ‘nearly seven-year’ sentence explained
It’s not hard to believe that the office of Attorney General Kwame Raoul is considering an appeal of the lenient sentence that Cook County Judge Vincent Gaughan handed down Jan. 18 to former Chicago police Officer Jason Van Dyke.
At the conclusion of a highly controversial case, with his words being broadcast on local TV and streamed live around the world as he addressed the courtroom, Gaughan winged it. He launched into a 10-minute, seemingly extemporaneous ramble in which he relied on a dissenting opinion in an Illinois Supreme Court case to justify ignoring the convictions that would carry a longer sentence and to sentence Van Dyke simply on the one conviction that carried a lighter penalty.
It might not have affected the outcome — judges are often said to decide on a sentence first and then draft their reasoning to justify the sentence — but it was weird enough to deserve a second look.
In October, Van Dyke was convicted by a jury of second-degree murder and 16 counts of aggravated battery with a firearm related to the 2014 shooting death of Laquan McDonald. The 16 counts reflected one for each of the shots Van Dyke fired from his service weapon into McDonald as McDonald tried to evade arrest, an event captured on police dashcam video.
The second-degree murder conviction reflected the jury’s conclusion that Van Dyke’s belief that he had to shoot McDonald to defend himself was unreasonable.
Because second-degree murder can cover such a wide range of circumstances, victims and defendants, the legislature allowed for sentences ranging from probation to 20 years in prison. Aggravated battery with a firearm, however, seemed more serious to lawmakers, who set a mandatory sentencing range of six to 30 years.
Judge Gaughan noted the potential absurdity of this in his remarks:
“If someone was shot in the baby finger by a firearm, unjustly, and all the elements of aggravated battery with a firearm were there, that would be the crime of aggravated battery with a firearm,” he said. “Again, if someone was shot in the baby toe by a firearm, unjustly, and all the elements of aggravated battery with a firearm had been proven, those are aggravated battery with a firearm cases. The thing to evaluate, especially case specific, is here. Is it more serious for a Laquan McDonald to be shot by a firearm or is it more serious for Laquan McDonald to be murdered by a firearm? Common sense comes to an easy answer on that in this specific case.”
Yes, but McDonald wasn’t clipped in the “baby finger” — a term I’d never heard. He was struck numerous times in the torso, many of the shots fired when he was already twitching on the ground.
To justify his decision to ignore the firearms convictions and sentence Van Dyke based on the technically lesser charge, Gaughan cited People v. Lee, a 2004 state Supreme Court decision that addressed this same apparent wrinkle in the law.
In that case, defendant Ivory Lee had been convicted in Sangamon County of second-degree murder and aggravated battery with a firearm after a fatal altercation outside a Springfield inn. A judge had sentenced him to 20 years for seconddegree murder and, concurrently, to 15 years for aggravated battery with a firearm.
Lee’s attorneys argued on appeal that, since the aggravated battery charge was technically the more serious charge based on the sentencing guidelines, the lesser offense of second-degree murder should be thrown out and the shorter sentence should apply.
The Supremes agreed: “This court has always held that, under the one-act, onecrime rule, the less serious offense must be vacated,” wrote Justice Thomas Kilbride in the opinion. “It is common sense that the legislature would provide greater punishment for crimes it deems more serious. … (Therefore) the second-degree murder conviction, as the less serious offense, should have been vacated.”
Kilbride underscored the point: “When vacating an offense for one-act, one-crime purposes in cases involving crimes of differing legislative classifications, the seriousness of each offense must be ascertained by the relative punishments prescribed by the General Assembly.”
Gaughan ignored that precedent and instead took approving note of Justice Bob Thomas’ partial dissent in the 2004 ruling.
In that dissent, Thomas argued that the “great deal of overlap” in the sentencing guidelines for second-degree murder and aggravated battery with a firearm showed “the legislature specifically allowed for the possibility that, in a particular case, a second-degree murder might be more serious and therefore command a greater sentence than an aggravated battery with a firearm.”
Otherwise, Thomas wrote, lawmakers “would have created mutually exclusive sentencing ranges, with the maximum sentence for second-degree murder falling somewhere below the minimum limit for aggravated battery with a firearm.”
That’s an absurd overgeneralizion in response to the arguably absurd result in People v. Lee, but it does highlight an issue that the General Assembly ought to address, perhaps with a law that specifies that, in multiple-offense cases, sentencing guidelines apply to the offense with the greatest maximum sentence, regardless of nomenclature.
Truth in sentencing, please
Six years and nine months — “nearly seven years” or “seven years” in headlinespeak around the world — is Van Dyke’s sentence, legally speaking. But his punishment for shooting and killing Laquan McDonald — at least until and unless the Illinois Supreme Court steps in or other action is taken — likely will be half that.
As most stories go on to note, with day-for-day “good time” credit, Van Dyke would walk out of prison a bit more than three years from now. Prisoners don’t earn good time by sewing clothes for the poor, teaching literacy classes, administering haircuts or otherwise performing noble deeds. They earn it by not misbehaving egregiously while behind bars — not committing new offenses that earn new punishments, in other words.
His punishment might well be even less if he participates in “substance abuse programs, correctional Industries assignments, vocational or academic educational programs, behavior modification programs, life skills courses, or re-entry planning,” that can further reduce the number of days he’s locked up, according to the Illinois Department of Corrections.
Accordingly, I renew my plea to my journalistic brethren to note, for clarity’s sake, the actual expected period of incarceration on first reference and in headlines when it comes to this or any other prison sentence, and then allude to the technical sentence length as an obligatory afterthought.
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