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Resentence Jason Van Dyke

Laquan McDonald's family representative and 21 local community-based and civil and human rights organizations urged in a letter Tuesday that Illinois Attorney General Kwame Raoul and Kane County State's Attorney Joseph McMahon to ask Cook County Judge Vincent Gaughan to take legal action to seek a resentencing for Jason Van Dyke in accordance with Illinois law.

A jury convicted Van Dyke of second-degree murder and 16 counts of aggravated battery - one for each bullet he shot into McDonald. The letter contains a detailed analysis of the laws Gaughan violated when he sentenced Van Dyke to serve just over three years for these convictions.

First, Gaughan unlawfully declined to sentence Van Dyke on the 16 counts of aggravated battery.

The Illinois Supreme Court has imposed a sentencing rule called "one act, one crime." This means that if a person is convicted of multiple offenses resulting from a single act, the court can only impose a sentence for one offense - and it must be the most serious offense. All other convictions must be vacated.

Gaughan found that Van Dyke's second-degree murder conviction was more serious than aggravated battery convictions. But the Illinois Supreme Court has explicitly held that aggravated battery is more serious than second-degree murder. The letter explains that the aggravated battery convictions should not have been vacated and that Van Dyke is required to be sentenced on each count.

Second, Gaughan unlawfully spared Van Dyke from the consequences of Illinois statutes that require the imposition of consecutive sentences for aggravated battery convictions.

Because Van Dyke was convicted of firing 16 times into Laquan McDonald, the court was required to impose a sentence on each of those 16 separate counts of aggravated battery and to determine whether some or all of the sentences should be served consecutively.

Because no fewer than two of the shots were necessary to cause his death, at least two of the aggravated battery counts required consecutive sentences.

"In other words, the minimum sentence to which Mr. Van Dyke could lawfully be sentenced under Illinois law was 18 years: one six-year sentence for the first shot that caused severe bodily injury (the minimum sentence for a Class X felony); a second, consecutive six-year sentence for the second shot that produced severe bodily injury; and a six-year sentence, consecutive to the first two, for the remaining 14 shots," the letter states.

The letter critiques mandatory consecutive sentences as a draconian policy that imposes pain on Black and Brown families and creates negative public safety outcomes. But, the letter argues, the mandatory consecutive sentences are law and therefore must be applied to Van Dyke with full force.

"We object in the strongest terms to an unjustifiable, illegal departure from the requirements of law that enables leniency - merely because the defendant is a White police officer," the letter states.

The letter also argues that Van Dyke's status as a Chicago police officer who abused his power should be an aggravating factor at sentencing - not an excuse for leniency.

Finally, the letter describes the two well-established legal mechanisms the Attorney General and/or Special Prosecutor could use to seek undo Jason Van Dyke's unlawful sentence.

The first is a motion, filed before Gaughan, requesting a re-sentencing in accordance with controlling law.

Should that fail, an action could be filed directly with the Illinois Supreme Court requesting an order requiring Gaughan to follow the law and resentence Van Dyke accordingly.

The text of the letter and list of organizations and descriptions of the organizations is available on the MacArthur Justice Center's website.

The letter was drafted on behalf of Rev. Marvin Hunter, who is the great uncle of Laquan McDonald, and organizational supporters: Action Now, Arab American Action Network, Black Lives Matter Chicago, BlackRoots Alliance, Black Youth Project 100 Chicago, Blocks Together, Brighton Park Neighborhood Council, Chicago Alliance Against Racist and Political Repression, Chicago Urban League, Enlace Chicago, Gay Liberation Network, Good Kids Mad City, Grassroots Collaborative, Justice for Families, Latino Union, NAACP-Westside Branch, Network 49, Rainbow PUSH Coalition, Southsiders Organized for Unity and Liberation, U.S. Palestinian Community Network, and Women's All Points Bulletin . . .

The letter was drafted by attorneys from the Roderick and Solange MacArthur Justice Center at the Northwestern Pritzker School of Law, the Police Accountability Project at the University of Chicago Law School, Samuels & Associates Ltd., and the Law Offices of Jeffery J. Neslund.


See also:
* Miller: How Jason Van Dyke's Projected 96-Year Sentence Wound Up Being 81 Months.

* Zorn: Van Dyke's Controversial 'Nearly Seven-Year' Sentence Explained.

* AP: Experts: Decent Chance Jason Van Dyke's Sentence Will Be Tossed.

* Tribune: Special Prosecutor In Jason Van Dyke's Trial To Review Sentence But Cautions About Appeal.


Comments welcome.


Posted on January 30, 2019

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