Oral Arguments Set in Challenge to Constitutionality of Aggravated Battery Statute

For Immediate Release: March 5, 2015

Chicago, IL – Defendant was charged with three counts of aggravated battery for a single act in violation of 720 ILCS 5/12-3.05(d)(8) (a battery upon a taxi driver), 5/12-3.05(a)(1) (a battery causing great bodily harm), and 5/12-3.05(c) (a battery on a public way (In People v. Rodriguez, 276 Ill. App. 3d 33, 37 (2d Dist. 1995), the Court described a “public way” is any area where the public is invited to frequent.). In his brief, the defendant characterized the charging document as a classic example of “horizontal overcharging”. “Under our system of law, a prosecutor has awesome power because of his largely unreviewable discretionary authority to bring charges.” United States v. Andrews, 612 F.2d 235 (6th Cir. 1980) (Keith, J., dissenting) (citing Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)). In his article The Prosecutor’s Role in Plea Bargaining, Professor Albert W. Alschuler described “horizontal” overcharging as consisting of “multiplying ‘unreasonably’ the number of accusations against a single defendant.” Albert W. Alschuler, The Prosecutor’s Role in Plea Bargaining, 36 U. Chi. L. Rev. 50, 85 (1968).

Following a trial, the jury found the defendant guilty of violation of 720 ILCS 5/12.3.05(c) (a battery on a public way). The jury acquitted the defendant of the other charges. Defendant was sentenced to a total of eighteen (18) months of probation and 14-days incarceration in the Cook County Department of Corrections ("CCDOC") a/k/a Cook County Jail as a condition of probation (jail as a condition of felony probation or “JCFP”). JCPF is the practice of sentencing convicted felony offenders to jail for up to a year as privilege for receiving probation. Moisés Próspero, Ph.D. and Mike Tanana, Jail as a Condition of Felony Probation, Center for Public Policy & Administration (2009).

Defendant challenged multiple errors made by the circuit court requiring that both the conviction and sentence be reversed. Issues raised on appeal included, inter alia, the following: Whether the trial court erred in denying defendant’s motion to dismiss for failing to preserve evidence in the government's position and violation of Brady v. Maryland, 373 U.S. 83 (1962); Whether the trial court erred in giving the government, sua sponte, an unsolicited jury instruction on citizen’s arrest (Criminal I.P.I. 24-25.15 (Private Person’s Use of Force in Making Arrest – Not Summoned by Peace Officer)); Whether the trial court erred in refusing to give the defendant’s requested jury instruction on negligence (Criminal I.P.I. 5.02 (Negligence)); Whether the trial court erred in failing to find 720 ILCS 5/12-3.05(c) (a battery on a public way) unconstitutional.

As to the constitutional challenge to the aggravate battery statute, what follows is a brief summary of that issue. Section 5/12-3.05(c) of the Criminal Code of 2012 (720 ILCS 5/1-1, et seq.) states that "[a] person commits aggravated battery when, in committing a battery, other than by the discharge of a firearm, he or she is or the person battered is on or about a public way, public property, a public place of accommodation or amusement, a sports venue, or a domestic violence shelter." A conviction for aggravated battery under this statute is a Class 3 felony. In order to utilize an evidence-based approach to challenge the constitutionality of that statute, the defendant convinced the Honorable Timothy C. Evans (Chief Judge of the Circuit Court of Cook County) to require the Clerk of the Circuit Court to turn over records related to misdemeanor battery. The response from the Clerk indicated that in 2011 there were 26,542 misdemeanor arrests that included violation of 720 ILCS 5/12-3. Of the 26,542 arrests, there were 4,902 convictions.

Then, using the evidence produced by the Clerk, the defendant was able to demonstrate how identical conduct resulted in different class of conviction (misdemeanor vs. felony). Defendant argued that Section 5/12-3.05(c) and its sentencing provision (Section 5/12-3.05(h)) violates the spirit and the letter of the Illinois Constitution’s mandate that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” Ill. Const. art. I, § 11 (Limitation of Penalties After Conviction). Further, Section 5/12-3.05(c) violates the spirit and the letter of the Illinois Constitution’s mandate that “[n]o person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.” Ill. Const. 1970, art. I, § 2 (Due Process and Equal Protection). To satisfy the requirements of the due process clause, a penalty must be reasonably designed to remedy the particular evil that the legislature was targeting. People v. Sharpe, 216 Ill. 2d 481, 531 (2005). Section 5/12-3.05(c) and its corresponding sentencing provision violates due process, the statutory scheme is invalid on the basis of State and Federal equal protection guarantees (Ill. Const. 1970, art. I, § 2; U.S. Const., amend. XIV), the proportionate penalties guarantee under our State constitution (Ill. Const. 1970, art. I, § 11) and the prohibition of cruel and unusual punishment under the eighth amendment to the United States Constitution (U.S. Const., amend. VIII).

WHAT: Oral arguments begin in People v. Dahms. (Docket No. 1-13-3301).

WHO: Craig M. Sandberg will argue for the defendant, before a panel of judges in Appellate Court of Illinois, First District, Fourth Division.

WHEN: Thursday, April 9, 2015 at 10:00 a.m.

WHERE: Appellate Court of Illinois, First District, Fourth Division, 160 North LaSalle Street, Chicago, Illinois 60601